[Federal Register Volume 71, Number 41 (Thursday, March 2, 2006)]
[Rules and Regulations]
[Pages 10764-10790]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-1901]
[[Page 10763]]
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Part II
Department of the Interior
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Office of Surface Mining Reclamation and Enforcement
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30 CFR Parts 948
West Virginia Regulatory Program; Final Rule
Federal Register / Vol. 71, No. 41 / Thursday, March 2, 2006 / Rules
and Regulations
[[Page 10764]]
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 948
[WV-106-FOR]
West Virginia Regulatory Program
AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM),
Interior.
ACTION: Final rule; approval of amendment.
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SUMMARY: We are approving, with certain exceptions, an amendment to the
West Virginia regulatory program (the West Virginia program) under the
Surface Mining Control and Reclamation Act of 1977 (SMCRA or the Act).
West Virginia amended the Code of West Virginia (W. Va. Code or WV
Code) and the Code of State Regulations (CSR) as authorized by several
bills passed during the State's regular 2004-2005 legislative session.
The State revised its program to be consistent with certain
corresponding Federal requirements, and to include other amendments at
its own initiative.
DATES: Effective Date: March 2, 2006.
FOR FURTHER INFORMATION CONTACT: Mr. Roger W. Calhoun, Director,
Charleston Field Office, 1027 Virginia Street East, Charleston, West
Virginia 25301. Telephone: (304) 347-7158, e-mail address:
[email protected].
SUPPLEMENTARY INFORMATION:
I. Background on the West Virginia Program
II. Submission of the Amendment
III. OSM's Findings
IV. Summary and Disposition of Comments
V. OSM's Decision
VI. Procedural Determinations
I. Background on the West Virginia Program
Section 503(a) of the Act permits a State to assume primacy for the
regulation of surface coal mining and reclamation operations on non-
Federal and non-Indian lands within its borders by demonstrating that
its program includes, among other things, ``* * * a State law which
provides for the regulation of surface coal mining and reclamation
operations in accordance with the requirements of the Act * * *; and
rules and regulations consistent with regulations issued by the
Secretary pursuant to the Act.'' See 30 U.S.C. 1253(a)(1) and (7). On
the basis of these criteria, the Secretary of the Interior
conditionally approved the West Virginia program on January 21, 1981.
You can find background information on the West Virginia program,
including the Secretary's findings, the disposition of comments, and
conditions of approval of the West Virginia program in the January 21,
1981, Federal Register (46 FR 5915). You can also find later actions
concerning West Virginia's program and program amendments at 30 CFR
948.10, 948.12, 948.13, 948.15, and 948.16.
II. Submission of the Amendment
West Virginia proposed revisions to the Code of West Virginia (W.
Va. Code or WV Code) and the Code of State Regulations (CSR) as
authorized by several bills passed during the State's regular 2004-2005
legislative session. West Virginia also proposed an amendment that
relates to the State's regulations concerning erosion protection zones
(EPZ) associated with durable rock fills. The State revised its program
to be consistent with certain corresponding Federal requirements, and
to include other amendments at its own initiative. The amendments
include, among other things, changes to the State's surface mining and
blasting regulations as authorized by Committee Substitute for House
Bill 2723; various statutory changes to the State's approved program as
a result of the passage of Committee Substitute for House Bill 3033 and
House Bills 2333 and 3236; the submission of a draft policy regarding
the State's EPZ requirement and requesting that OSM reconsider its
previous decision concerning EPZ; State water rights and replacement
policy identifying the timing of water supply replacement; the revised
Permittee's Request For Release form; the submission of a Memorandum of
Agreement (MOA) between the West Virginia Department of Environmental
Protection (WVDEP), Division of Mining and Reclamation, and the West
Virginia Division of Natural Resources, Wildlife Resources Section that
is intended to partially resolve a required program amendment relating
to planting arrangements for Homestead post-mining land use; and a
memorandum from the West Virginia Division of Forestry to the WVDEP
supporting the tree stocking standards for Homestead.
By letters dated June 13, 2005 (Administrative Record Numbers WV-
1419, WV-1420, and WV-1421), the WVDEP submitted amendments to its
program under SMCRA (30 U.S.C. 1201 et seq.). The amendments consist of
several bills passed during West Virginia's 2004-2005 legislative
session and a draft policy concerning EPZs associated with durable rock
fills.
House Bill (HB) 2333 amends the W. Va. Code by adding new Article
27 entitled the Environmental Good Samaritan Act (Sections 22-27-1
through 22-27-12). HB 2333 was adopted by the Legislature on March 24,
2005, and signed into law by the Governor on April 6, 2005, with an
effective date of June 22, 2005. In its letter, the WVDEP stated that
HB 2333 establishes a program to encourage voluntary reclamation of
lands adversely affected by mining activities by limiting the liability
that could arise as a result of the voluntary reclamation of abandoned
lands or reduction/abatement of water pollution.
Committee Substitute for HB 2723 authorizes (at paragraph g)
amendments to the West Virginia Surface Mining Reclamation Rules at CSR
38-2 and (at paragraph i) amendments to the Surface Mining Blasting
Rule at CSR 199-1. This bill was passed by the Legislature on April 8,
2005, and approved by the Governor on May 3, 2005, with an effective
date from the date of passage. We note that some of the amendments to
CSR 38-2 and CSR 199-1 are intended to address required program
amendments that are codified in the Federal regulations at 30 CFR
948.16(a), (sss), (wwww), (fffff), (iiiii), (jjjjj), (kkkkk), (lllll),
(ooooo), (ppppp), and (rrrrr).
Committee Substitute for HB 3033 amends the West Virginia Surface
Coal Mining and Reclamation Act (WVSCMRA) at W. Va. Code Section 22-3-
11 concerning the State's special reclamation tax. This bill was passed
by the Legislature on April 1, 2005, and signed by the Governor on
April 18, 2005, with an effective date of April 1, 2005. In its letter,
the WVDEP stated that HB 3033 extends the temporary special reclamation
tax that funds the State's alternative bonding system for an additional
18 months (at WV Code 22-3-11(h)(1)) and provides additional duties for
the WVDEP Secretary in managing the State's alternative bonding system
(at W. Va. Code 22-3-11(h)(2), (3), and (4)). We note that OSM
previously approved West Virginia's temporary special reclamation tax
on December 28, 2001 (66 FR 67446), with additional modification on May
29, 2002 (67 FR 37610, 37613-37614). The State's current extension of
that temporary tax by an additional 18 months does not need OSM's
specific approval because the State has only lengthened the time period
of the temporary tax. Except as discussed below, the State has not
modified any duties or functions under the approved West Virginia
program, and the change is in keeping with the intent of our original
approvals. Therefore, we did not seek public comment on the State's
[[Page 10765]]
extension of the temporary tax from thirty-nine to fifty-seven months
at W. Va. Code 22-3-11(h)(1). The extension took effect from the date
of passage of Committee Substitute for HB 3033, on April 1, 2005. In
addition, we did not seek public comment on the State's new language at
W. Va. Code 22-3-11(h)(3) and (4). These new provisions only direct the
Secretary of the WVDEP to conduct various studies and authorize the
Secretary of the WVDEP to propose legislative rules concerning its
bonding program as appropriate. These provisions do not modify any
duties or functions under the approved West Virginia program and do
not, therefore, require OSM's approval. However, we asked for public
comment on the State's provisions at WV Code 22-3-11(h)(2)(A) and (B).
Under these new provisions, the WVDEP Secretary will be required to
pursue cost effective alternative water treatment strategies, conduct
formal actuarial studies every two years, and conduct informal reviews
annually on the Special Reclamation Fund. Upon further consideration of
new W. Va. Code 22-3-11(h)(2)(A) concerning the requirement to pursue
cost effective alternative water treatment strategies, we have
concluded that that requirement does not represent a substantive change
to the West Virginia program. That is, new Subsection (h)(2)(A) will
have no immediate effect on the implementation of the provisions of the
approved West Virginia program. Additionally, in its pursuit of cost-
effective water treatment strategies, if the State does identify any
needed regulatory revisions or additions, such changes would be pursued
through established rulemaking procedures and subject to OSM review and
approval. Therefore, we have determined that the amendment to CSR 38-2-
11(h)(2)(A) does not require OSM's approval and we have not made a
finding on that provision in our findings below.
HB 3236 amends the WVSCMRA by adding new W. Va. Code Section 22-3-
11a concerning the special reclamation tax, and adding new Section 22-
3-32a concerning the special tax on coal. HB 3236 was passed by the
Legislature on April 9, 2005, and approved by the Governor on May 2,
2005, with an effective date of April 9, 2005. HB 3236 provides that
the special reclamation tax and the special tax, which is used to
administer the State's approved regulatory program, are applicable to
thin seam coal, and the special reclamation tax is subject to the WV
Tax Crimes and Penalties Act and the WV Tax Procedure and
Administration Act.
In addition, WVDEP submitted Committee Substitute for HB 3033 which
contains strikethroughs and underscoring showing the actual language
that has been added and deleted from the WVSCMRA, as a result of the
passage of Enrolled Committee Substitute for HB 3033 discussed above
(Administrative Record Number WV-1422).
WVDEP submitted a MOA dated September 2003 between the WVDEP,
Division of Mining and Reclamation, and the West Virginia Division of
Natural Resources, Wildlife Resources Section (Administrative Record
Number WV-1405). This MOA outlines responsibilities of both agencies in
reviewing surface and underground coal mining permit applications;
evaluating lands unsuitable for mining petitions; developing wildlife
planting plans as part of reclamation plans of permit applications; and
restoring, protecting and enhancing fish and wildlife on mined lands
within the State. The MOA was developed in response to a letter to the
State from OSM in accordance with the Federal regulations at 30 CFR
Part 732 and dated March 6, 1990 (Administrative Record Number WV-834).
Such letters sent by OSM are often referred to as ``732 letters'' or
``732 notifications.'' In the March 6, 1990, letter, OSM stated that
the State program did not require that minimum stocking and planting
arrangements be specified by the regulatory authority on the basis of
local and regional conditions and after consultation with and approval
by State agencies responsible for the administration of forestry and
wildlife programs as required by 30 CFR 816/817.116(b)(3)(i). The West
Virginia Division of Forestry has concurred with the State's tree
stocking and groundcover standards at CSR 38-2-9.8.g.
However, OSM maintains that the Wildlife Resources Section still
has to concur with the wildlife planting arrangement standards. The
WVDEP submitted the MOA in response to that part of the outstanding 30
CFR Part 732 notification and, as discussed below, to satisfy part of
an outstanding required amendment at 30 CFR 948.16(ooooo).
The Federal regulations at 30 CFR 948.16(ooooo) provide that the
WVDEP must consult with and obtain the approval of the West Virginia
Division of Forestry and the Wildlife Resources Section of the West
Virginia Division of Natural Resources on the new stocking standards
and planting arrangements for Homesteading at CSR 38-2-7.5.o.2. The
submission of the MOA is to resolve the part of the required amendment
relating to planting arrangements. The State also revised its rules
earlier at CSR 38-2-9.3.g to provide that a professional wildlife
biologist employed by the Division of Natural Resources must develop
the planting plan. OSM approved that revision in the Federal Register
on February 8, 2005 (70 FR 6582). At the time of submission, WVDEP
advised OSM that it had consulted with the Division of Forestry
concerning the stocking standards for Homesteading. According to WVDEP,
the Division of Forestry would be submitting a letter explaining its
position with regard to those stocking standards (Administrative Record
Number WV-1423). On August 23, 2005, the Division of Forestry submitted
a memorandum to WVDEP in support of the new stocking requirements for
Homesteading. Specifically, the Division of Forestry agreed with the
provisions at CSR 38-2-7.5.i.8, 7.5.l.4 and 7.5.o.2 regarding
conservation easements, public nurseries, and survival rates and ground
cover requirements at the time of bond release (Administrative Record
Number WV-1428). The WVDEP submitted this memorandum to help satisfy
the required program amendment at 30 CFR 948.16(ooooo).
WVDEP also submitted the Permittee's Request for Release form dated
March 2005 (Administrative Record Number WV-1424). This form is being
submitted in response to an OSM 30 CFR Part 732 notification dated July
22, 1997 (Administrative Record Number WV-1071). In that notification,
OSM advised the State that the Federal regulations at 30 CFR
800.40(a)(3) were amended to require that each application for bond
release include a written, notarized statement by the permittee
affirming that all applicable reclamation requirements specified in the
permit have been completed. OSM notified WVDEP that the State
regulations at CSR 38-2-12.2 do not contain such a requirement. In
response, the State revised its bond release form by adding new item
Number 11, which requires that all copies of the Permittee's Request
For Release form include the following: ``11. A notarized statement by
the permittee that all applicable reclamation requirements specified in
the permit have been completed.''
We announced receipt of the proposed amendment in the August 26,
2005, Federal Register (70 FR 50244). In the same document, we opened
the public comment period and provided an opportunity for a public
hearing or meeting on the adequacy of the proposed amendment
(Administrative Record Number WV-1429). We did not hold a hearing or a
meeting because no one requested one. The public comment
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period was to close on September 26, 2005. Prior to the close of the
comment period, we received a request from the West Virginia Coal
Association (WVCA) to extend the comment period for an additional five
days (Administrative Record Number WV-1437). On September 26, 2005, we
granted their request and extended the comment period through September
30, 2005 (Administrative Record Number WV-1437). We received comments
from one industry group and four Federal agencies.
III. OSM's Findings
Following are the findings we made concerning the amendment under
SMCRA and the Federal regulations at 30 CFR 732.15 and 732.17. We are
approving the amendment, except as discussed below. Any revisions that
we do not specifically discuss below concern nonsubstantive, minor
wording, editorial, or renumbering of sections changes, and are
approved herein without discussion.
1. House Bill 2333
HB 2333 amends the W. Va. Code by adding a new article Sections 22-
27-1 through 12 to provide as follows:
Article 27. Environmental Good Samaritan Act
22-27-1. Declaration of Policy and Purpose
This article is intended to encourage the improvement of land
and water adversely affected by mining, to aid in the protection of
wildlife, to decrease soil erosion, to aid in the prevention and
abatement of the pollution of rivers and streams, to protect and
improve the environmental values of the citizens of this state and
to eliminate or abate hazards to health and safety. It is the intent
of the Legislature to encourage voluntary reclamation of lands
adversely affected by mining. The purpose of this article is to
improve water quality and to control and eliminate water pollution
resulting from mining extraction or exploration by limiting the
liability which could arise as a result of the voluntary reclamation
of abandoned lands or the reduction and abatement of water
pollution. This article is not intended to limit the liability of a
person who by law is or may become responsible to reclaim the land
or address the water pollution or anyone who by contract, order or
otherwise is required to or agrees to perform the reclamation or
abate the water pollution.
22-27-2. Legislative Findings
The Legislature finds and declares as follows:
(1) The state's long history of mining has left some lands and
waters unreclaimed and polluted.
(2) These abandoned lands and polluted waters are unproductive,
diminish the tax base and are serious impediments to the economic
welfare and growth of this state.
(3) The unreclaimed lands and polluted waters present a danger
to the health, safety and welfare of the people and the environment.
(4) The state of West Virginia does not possess sufficient
resources to reclaim all the abandoned lands and to abate the water
pollution.
(5) Numerous landowners, citizens, watershed associations,
environmental organizations and governmental entities who do not
have a legal responsibility to reclaim the abandoned lands or to
abate the water pollution are interested in addressing these
problems but are reluctant to engage in such reclamation and
abatement activities because of potential liabilities associated
with the reclamation and abatement activities.
(6) It is in the best interest of the health, safety and welfare
of the people of this state and the environment to encourage
reclamation of the abandoned lands and abatement of water pollution.
(7) That this act will encourage and promote the reclamation of
these properties.
22-27-3. Definitions
As used in this article unless used in a context that clearly
requires a different meaning, the term:
(a) ``Abandoned lands'' means land adversely affected by mineral
extraction and left or abandoned in an unreclaimed or inadequately
reclaimed condition.
(b) ``Consideration'' means something of value promised, given
or performed in exchange for something which has the effect of
making a legally enforceable contract. For the purpose of this
article, the term does not include a promise to a landowner to
repair damage caused by a reclamation project or water pollution
abatement project when the promise is made in exchange for access to
the land.
(c) ``Department'' means the West Virginia Department of
Environmental Protection.
(d) ``Eligible land'' means land adversely affected by mineral
extraction and left or abandoned in an unreclaimed or inadequately
reclaimed condition or causing water pollution and for which no
person has a continuing reclamation or water pollution abatement
obligation.
(e) ``Eligible landowner'' means a landowner that provides
access to or use of the project work area at no cost for a
reclamation or water pollution abatement project who is not or will
not become responsible under state or federal law to reclaim the
land or address the water pollution existing or emanating from the
land.
(f) ``Eligible project sponsor'' means a person that provides
equipment, materials or services at no cost or at cost for a
reclamation or water pollution abatement project who is not or will
not become responsible under state or federal law to reclaim the
land or address the water pollution existing or emanating from the
land.
(g) ``Landowner'' means a person who holds either legal or
equitable interest in real property.
(h) ``Mineral'' means any aggregate or mass of mineral matter,
whether or not coherent, which is extracted by mining. This
includes, but is not limited to, limestone, dolomite, sand, gravel,
slate, argillite, diabase, gneiss, micaceous sandstone known as
bluestone, rock, stone, earth, fill, slag, iron ore, zinc ore,
vermiculite, clay and anthracite and bituminous coal.
(i) ``Permitted activity site'' means a site permitted by the
department of environmental protection under the provisions of
article two, three or four of this chapter.
(j) ``Person'' means a natural person, partnership, association,
association members, corporation, an agency, instrumentality or
entity of federal or state government or other legal entity
recognized by law as the subject of rights and liabilities.
(k) ``Project work area'' means that land necessary for a person
to complete a reclamation project or a water pollution abatement
project.
(l) ``Reclamation project'' means the restoration of eligible
land to productive use by regrading and revegetating the land to
stable contours that blend in and complement the drainage pattern of
the surrounding terrain with no highwalls, spoil piles or
depressions to accumulate water, or to decrease or eliminate
discharge of water pollution.
(m) ``Water pollution'' means the man-made or man-induced
alteration of the chemical, physical, biological and radiological
integrity of water located in the state.
(n) ``Water pollution abatement facilities'' means the methods
for treatment or abatement of water pollution located on eligible
lands. These methods include, but are not limited to, a structure,
system, practice, technique or method constructed, installed or
followed to reduce, treat or abate water pollution.
(o) ``Water pollution abatement project'' means a plan for
treatment or abatement of water pollution located on eligible lands.
22-27-4. Eligibility and Project Inventory
(a) General rule.--An eligible landowner or eligible project
sponsor who voluntarily provides equipment, materials or services at
no charge or at cost for a reclamation project or a water pollution
abatement project in accordance with the provisions of this article
is immune from civil liability and may raise the protections
afforded by the provisions of this article in any subsequent legal
proceeding which is brought to enforce environmental laws or
otherwise impose liability. An eligible landowner or eligible
project sponsor is only entitled to the protections and immunities
provided by this article after meeting all eligibility requirements
and compliance with a detailed written plan of the proposed
reclamation project or water pollution abatement project which is
submitted to and approved by the department. The project plan shall
include the objective of the project and a description of the work
to be performed to accomplish the objective and shall, additionally,
identify the project location, project boundaries, project
participants and all landowners.
(b) Notice.--The department shall give written notice by
certified mail to adjacent property owners and riparian land owners
[[Page 10767]]
located downstream of the proposed project, provide Class IV public
notice of the proposed project in a newspaper of general
circulation, published in the locality of the proposed project, and
shall give public notice in the state register. The project sponsor
may also provide public notice. Any person having an interest which
may be adversely affected by the proposed project has the right to
file written objections to the department within thirty days after
receipt of the written notice or within thirty days after the last
publication of the Class IV notice. The department shall provide to
the project sponsor a copy of each written objection received during
the public comment period, which shall conclude at the expiration of
the applicable thirty-day period provided for in this section.
(c) Advice.--The department may provide advice to the landowner
or to other interested persons based upon the department's knowledge
and experience in performing reclamation projects and water
pollution abatement projects.
(d) Departmental review.--The department shall review each
proposed reclamation project and approve the project if the
department determines the proposed project:
(1) Will result in the appropriate reclamation and regrading of
the land according to all applicable laws and regulations;
(2) Will result in the appropriate revegetation of the site;
(3) Is not likely to result in pollution as defined in article
eleven of this chapter; and
(4) Is likely to improve the water quality and is not likely to
make the water pollution worse.
(e) Project inventory.--The department shall develop and
maintain a system to inventory and record each project, the project
location and boundaries, each landowner and each person identified
in a project plan provided to the department. The inventory shall
include the results of the department's review of the proposed
project and, where applicable, include the department's findings
under subsection (b), section ten of this article.
(f) Appeal.--A person aggrieved by a department decision to
approve or disapprove a reclamation project or a water pollution
abatement project has the right to file an appeal with the
environmental quality board under the provisions of article one,
chapter twenty-two-b of this code.
22-27-5. Landowner Liability Limitation and Exceptions
(a) General rule.--Except as specifically provided in
subsections (b) and (c) of this section, an eligible landowner who
provides access to the land, without charge or other consideration,
which results in the implementation of a reclamation project or a
water pollution abatement project:
(1) Is immune from liability for any injury or damage suffered
by persons working under the direct supervision of the project
sponsor while such persons are within the project work area;
(2) Is immune from liability for any injury to or damage
suffered by a third party which arises out of or occurs as a result
of an act or omission of the project sponsor which occurs during the
implementation of the reclamation project or the water pollution
abatement project;
(3) Is immune from liability for any injury to or damage
suffered by a third party which arises out of or occurs as a result
of a reclamation project or a water pollution abatement project;
(4) Is immune from liability for any pollution resulting from a
reclamation project or water pollution abatement project;
(5) Is immune from liability for the operation, maintenance or
repair of the water pollution abatement facilities constructed or
installed during the project unless the eligible landowner
negligently damages or destroys the water pollution abatement
facilities or denies access to the project sponsor who is
responsible for the operation, maintenance or repair [sic] the water
pollution abatement facilities.
(b) Duty to warn.--The eligible landowner shall warn the project
sponsor of known, latent, dangerous conditions located on the
project work area which are not the subject of the reclamation
project or the water pollution abatement project. Nothing in this
article shall limit an eligible landowner's liability which results
from the eligible landowner's failure to warn of such known, latent,
dangerous conditions.
(c) Exceptions to immunity.--Nothing in this article may limit
an eligible landowner's liability which results from a reclamation
project or water pollution abatement project and which would
otherwise exist:
(1) For injury or damage resulting from the landowner's acts or
omissions which are reckless or constitute gross negligence or
willful misconduct.
(2) Where the landowner accepts or requires consideration for
allowing access to the land for the purpose of implementing a
reclamation project or water pollution abatement project or to
operate, maintain or repair water pollution abatement facilities
constructed or installed during a water pollution abatement project.
(3) For the landowner's unlawful activities.
(4) For damage to adjacent landowners or downstream riparian
landowners which results from a reclamation project or water
pollution abatement project where written notice or public notice of
the proposed project was not provided.
22-27-6. Project Sponsor Liability Limitation and Exceptions
(a) General rule.--Except as specifically provided in subsection
(b) of this section, a project sponsor who provides equipment,
materials or services at no cost or at cost for a reclamation
project or a water pollution abatement project:
(1) Is immune from liability for any injury to or damage
suffered by a person which arises out of or occurs as a result of
the water pollution abatement facilities constructed or installed
during the water pollution abatement project;
(2) Is immune from liability for any pollution emanating from
the water pollution abatement facilities constructed or installed
during the water pollution abatement project unless the person
affects an area that is hydrologically connected to the water
pollution abatement project work area and causes increased pollution
by activities which are unrelated to the implementation of a water
pollution abatement project. Provided that the project sponsor
implements, operates, and maintains the project in accordance with
the plans approved by the department;
(3) Is immune from liability for the operation, maintenance and
repair of the water pollution abatement facilities constructed or
installed during the water pollution abatement project.
(b) Exceptions.--
(1) Nothing in this article shall limit in any way the liability
of a project sponsor which liability results from the reclamation
project or the water pollution abatement project and which would
otherwise exist:
(A) For injury or damage resulting from the project sponsor's
acts or omissions which are reckless or constitute gross negligence
or willful misconduct.
(B) For the person's unlawful activities.
(C) For damages to adjacent landowners or downstream riparian
landowners which result from a reclamation project or a water
pollution abatement project where written notice or public notice of
the proposed project was not provided.
(2) Nothing in this article shall limit in any way the liability
of a person who the department has found to be in violation of any
other provision or provisions of this chapter.
22-27-7. Permits and Zoning
Nothing in this article may be construed as waiving any existing
permit requirements or waiving any local zoning requirements.
22-27-8. Relationship to Federal and State Programs
The provisions of this article shall not prevent the department
from enforcing requirements necessary or imposed by the federal
government as a condition to receiving or maintaining program
authorization, delegation, primacy or federal funds.
22-27-9. General Permits
If the department determines it will further the purposes of
this article, the department may issue a general permit for each
reclamation project or water pollution abatement project, which
shall:
(1) Encompass all of the activities included in the reclamation
project or water pollution abatement project.
(2) Be issued in place of any individual required stream
encroachment, earth disturbance or national pollution discharge
elimination system permits.
22-27-10. Exceptions
(a) General rule.--Any person who under existing law shall be or
may become responsible to reclaim the land or treat or abate the
water pollution or any person who for consideration or who receives
some other benefit through a contract or any person who through a
consent order and agreement or [sic] is ordered to perform or
complete reclamation or treat or abate water pollution as well as a
surety which provided a bond
[[Page 10768]]
for the site is not eligible nor may receive the benefit of the
protections and immunities available under this article.
(b) Projects near mining or coal refuse sites.--This article
does not apply to a reclamation project or a water pollution
abatement project that is located adjacent to, hydrologically
connected to or in close proximity to a site permitted under
articles two, three or four of this chapter unless:
(1) The reclamation project or water pollution abatement project
is submitted to the department in writing before the project is
started; and
(2) The department finds:
(A) The reclamation project or the water pollution abatement
project will not adversely affect the permittee's obligations under
the permit and the applicable law;
(B) The activities on the project work area cannot be used by
the permittee to avoid the permittee's reclamation or water
pollution treatment or abatement obligations; and
(3) The department issues a written notice of its findings and
the approval of the project.
(c) Projects in lieu of civil or administrative penalties.--This
article shall not apply to a reclamation project or a water
pollution abatement project that is performed in lieu of paying
civil or administrative penalties.
22-27-11. Water Supply Replacement
A public or private water supply affected by contamination or
the diminution caused by the implementation of a reclamation project
or the implementation of a water pollution abatement project shall
be restored or replaced by the department with an alternate source
of water adequate in quantity and quality for the purposes served by
the water supply.
22-27-12. Rules
The department may propose legislative rules in accordance with
article three, chapter twenty-nine-a of this code as needed to
implement the provisions of this article.
There are no specific provisions under SMCRA relating to the
voluntary reclamation of lands affected by mining activities. Because
this article also relates to the voluntary treatment of water pollution
from abandoned mined lands, we solicited comments from the U.S.
Environmental Protection Agency (EPA). Like SMCRA, the Clean Water Act
(CWA) does not contain comparable provisions. However, EPA recently
launched the Good Samaritan Initiative (Administrative Record Number
WV-1432). This is a new agency-wide effort to foster greater
collaboration to accelerate the restoration of watersheds and fisheries
threatened by abandoned mine runoff. EPA is pioneering the Good
Samaritan Initiative as a tool to identify an individual's rights and
responsibilities related to the voluntary clean up of abandoned mines
and to protect such volunteers against pre-existing liabilities.
Specific comments from EPA regarding the proposed State legislation are
contained in ``Section IV. Summary and Disposition of Comments.'' While
this legislation has no direct Federal counterpart, we do not find any
of the proposed State provisions presented above to be inconsistent
with the purpose and intent of SMCRA, and therefore it can be approved.
Furthermore, as discussed in Section IV, given EPA's concern about the
possible legal effects of the proposed State legislation on EPA's
authority under the CWA, we find that State's Environmental Good
Samaritan Act at W. Va. Code 22-27-1 et seq. is only approved to the
extent that none of the provisions therein can be interpreted as
abrogating the authority or jurisdiction of the EPA. Section 702(a) of
SMCRA provides that nothing in the Act can be construed as superseding,
amending, modifying, or repealing other Federal laws or any regulations
promulgated thereunder.
2. Committee Substitute for House Bill 2723
This bill authorizes amendments to the West Virginia Surface Mining
Reclamation Rules at CSR 38-2 and the Surface Mining Blasting Rule at
CSR 199-1.
Amendments to CSR 38-2
a. CSR 38-2-2.92. This definition is new, and provides as follows:
2.92 Previously mined areas means land affected by surface
mining operations prior to August 3, 1977, that has not been
reclaimed to the standards of this rule.
In its amendment, the WVDEP stated that the revision is intended to
resolve an outstanding 30 CFR Part 732 issue relating to previously
mined areas as contained in a letter from OSM dated July 22, 1997
(Administrative Record Number WV-1071). We find that the State's new
definition of ``previously mined areas'' is substantively identical to
the Federal definition of ``previously mined area'' at 30 CFR 701.5,
and it can be approved.
b. CSR 38-2-3.29.a. This provision concerns incidental boundary
revisions (IBRs) and is amended by deleting the following language from
the end of the first sentence: ``is the only practical alternative to
recovery of unanticipated reserves or necessary to enhance reclamation
efforts or environmental protection.''
In its submittal of this amendment, the WVDEP stated that the
amendment is intended to delete language that was not approved by OSM
(see the February 9, 1999, Federal Register, 64 FR 6201, 6208). In the
February 9, 1999, notice, OSM found the language to be inconsistent
with the intent of section 511(a)(3) of SMCRA and 30 CFR 774.13(d) of
the Federal regulations, which pertain to IBR's.
As amended, CSR 38-2-3.29.a provides as follows:
3.29.a. Incidental Boundary Revisions (IBRs) shall be limited to
minor shifts or extensions of the permit boundary into non-coal
areas or areas where any coal extraction is incidental to or of only
secondary consideration to the intended purpose of the IBR or where
it has been demonstrated to the satisfaction of the Secretary that
limited coal removal on areas immediately adjacent to the existing
permit. IBRs shall also include the deletion of bonded acreage which
is overbonded by another valid permit and for which full liability
is assumed in writing by the successive permittee. Incidental
Boundary Revisions shall not be granted for any prospecting
operations, or to abate a violation where encroachment beyond the
permit boundary is involved, unless an equal amount of acreage
covered under the IBR for encroachment is deleted from the permitted
area and transferred to the encroachment area.
We find that, with this revision, proposed CSR 38-2-3.29.a is
consistent with and no less effective than the Federal regulations at
30 CFR 774.13(d), and it can be approved. The proposed deletion,
however, does leave the sentence incomplete; and we advised WVDEP that
it should be corrected. The State acknowledged that the rest of the
sentence should have been deleted. Therefore, we are approving this
provision with the understanding that the State will insert a period
after ``IBR'' and delete the words, ``or where it has been demonstrated
to the satisfaction of the Secretary that limited coal removal on areas
immediately adjacent to the existing permit.''
c. CSR 38-2-5.4.a. This provision concerns general sediment control
provisions, and it is amended by adding language to incorporate by
reference the U.S. Department of Agriculture, Soil Conservation Service
Technical Release No. 60, ``Earth Dams and Reservoirs.'' As amended,
Subsection 5.4.a provides as follows:
Sediment control or other water retention structures shall be
constructed in appropriate locations for the purposes of controlling
sedimentation. All runoff from the disturbed area shall pass through
a sedimentation control system. All such systems or other water
retaining structures used in association with the mining operation
shall be designed, constructed, located, maintained, and used in
accordance with this rule and in such a manner as to minimize
adverse hydrologic impacts in the permit and adjacent areas, to
prevent material damage outside the permit area and to assure safety
to the public. The U.S. Department of Agriculture, Soil Conservation
Service Technical Release No. 60 (210-VI-TR60, October 1985),
``Earth
[[Page 10769]]
Dams and Reservoirs,'' Technical Release No. 60 (TR-60) is hereby
incorporated by reference. Copies may be obtained from the National
Technical Information Service (NTIS), 5285 Port Royal Road,
Springfield, Virginia 22161, order No. PB 87-57509/AS. Copies can be
inspected at the OSM Headquarters Office, Office of Surface Mining
Reclamation and Enforcement, Administrative Record, 1951
Constitution Avenue, NW., Washington, DC, or at the Office of the
Federal Register, 800 North Capitol Street, NW., suite 700,
Washington, DC.
In this revision, the State added language referencing ``Earth Dams
and Reservoirs'' Technical Release No. 60 (TR-60) (210-VI-TR60, October
1985). This new language is consistent with the Federal citation of TR-
60 at 30 CFR 816/817.49(a)(1) and with the terms of a Part 732 letter
that OSM sent to the State dated July 22, 1997, in accordance with the
Federal regulations at 30 CFR 732.17(c). In that 732 letter, OSM asked
the State to resolve issues pertaining to impoundments and criteria
that the impoundments must comply with, especially impoundments meeting
Class B or C criteria for dams at TR-60. We must note that due to a
name change, the former Soil Conservation Service is now the Natural
Resources Conservation Service (NRCS). We must also note that
publication TR-60 has been revised, and the current version is Revised
Amendment 1, TR-60A, dated October 1990. The WVDEP's Web page at http://www.wvdep.org/item.cfm?ssid=9&ss1id=710 contains a copy of TR-60, and
it includes the NRCS revisions that were adopted in October 1990
(Administrative Record Number WV-1438). Therefore, because the State
intends to require that the revised version of TR-60 be used by
operators when designing and constructing sediment control or other
water retention structures within the State, we find that the proposed
amendment is consistent with and no less effective than the Federal
regulations at 30 CFR 816/817.49(a)(1), and it can be approved.
d. CSR 38-2-5.4.b.9. This provision concerns the design and
construction of freeboards of sediment control structures, and is
amended by adding a proviso that impoundments meeting the Class B or C
criteria for dams in ``Earth Dams and Reservoirs'', TR-60 shall comply
with the freeboard hydrograph criteria in ``Minimum Emergency Spillway
Hydrologic Criteria'' table in TR-60. As amended, Subsection 5.4.b.9
provides as follows:
5.4.b.9. Provide adequate freeboard to resist overtopping by
waves or sudden increases in volume and adequate slope protection
against surface erosion and sudden drawdown. Provided, however,
impoundments meeting the Class B or C criteria for dams in ``Earth
Dams and Reservoirs'', TR-60 shall comply with the freeboard
hydrograph criteria in ``Minimum Emergency Spillway Hydrologic
Criteria'' table in TR-60.
We find that, as amended, CSR 38-2-5.4.b.9 is substantively
identical to the Federal regulations at 30 CFR 816/817.49(a)(5)
concerning freeboard design and can be approved. The amendment also
satisfies a portion of the 732 letter that OSM sent to the State dated
July 22, 1997. As we discussed in Finding 2.c. above, WVDEP's Web page
contains a copy of TR-60, and it includes the revisions that were
adopted in October 1990. Therefore, it is apparent that the State
intends to require that the revised version of TR-60 be used when
designing and constructing sediment control or other water retention
structures within the State. We note that, existing subsection CSR 38-
2-22.4.h.1, and in a separate rulemaking proposed CSR 38-4-7.1.g,
provide that any open channel spillway designed for less than 100
percent probable maximum precipitation (PMP) must be provided with a
freeboard above the maximum water surface using the equation 1+.025vd1/
3. According to State officials, the equation provides for a more
simplistic freeboard design standard where ``v'' represents flow
velocity and ``d'' represents flow depth of the design storm in the
channel. TR-60 requires a calculation of freeboard design by
surcharging the design storm. Given the proposed requirements, it is
apparent that the State requires compliance with the freeboard design
standards at both CSR 38-2-5.4.b.9 and CSR 38-2-22.4.h.1 (and proposed
CSR 38-4-7.1.g.). According to State officials, there is no way to
determine which standard (freeboard hydrograph or freeboard equation)
is more stringent. Instead, this assessment must be determined on a
case-by-case basis during permit preparation and resulting review.
Consequently, the higher of those standards will always apply, and the
lesser standard will automatically be complied with. Upon approval, the
State will consider developing an interpretive policy that may include
variable descriptions of the freeboard equation to further clarify this
requirement.
e. CSR 38-2-5.4.b.10. This provision concerns minimum static safety
factor, and has been amended by deleting language in the first sentence
related to loss of life or property damage, and adding in its place
language concerning impoundments meeting the Class B or C criteria for
dams contained in ``Earth Dams and Reservoirs,'' TR-60. As amended,
Subsection 5.4.b.10 provides as follows:
5.4.b.10. Provide that an impoundment meeting the size or other
criteria of 30 CFR 77.216(a) or W. Va. Code [Section] 22-14 et seq.,
or Impoundments meeting the Class B or C criteria for dams contained
in ``Earth Dams and Reservoirs'', TR-60, shall have a minimum static
safety factor of 1.5 for a normal pool with steady state seepage
saturation conditions, and a seismic safety factor of at least 1.2.
Impoundments not meeting the size or other criteria of 30 CFR
77.216(a) or W. Va. Code [Section] 22-14 et seq., except for a coal
mine waste impounding structure, and located where failure would not
be expected to cause loss of life or serious property damage shall
have a minimum static safety factor of 1.3 for a normal pool with
steady state seepage saturation conditions.
The Federal regulations at 30 CFR 816/817.49(a)(4)(i), concerning
impoundment stability, provide that an impoundment meeting the Class B
or C criteria for dams in TR-60, or the size or other criteria of 30
CFR 77.216(a), shall have a minimum static safety factor of 1.5 for a
normal pool with steady state seepage saturation conditions, and a
seismic safety factor of at least 1.2. Therefore, the amendment renders
CSR 38-2-5.4.b.10 consistent with and no less effective than the
Federal regulations at 30 CFR 816/817.49(a)(4)(i) and can be approved.
However, existing language at CSR 38-2-5.4.b.10 also provides that
impoundments not meeting the size or other criteria of 30 CFR 77.216(a)
or W. Va. Code section 22-14 et seq., except for a coal mine waste
impounding structure, and located where failure would not be expected
to cause loss of life or serious property damage shall have a minimum
static safety factor of 1.3 for a normal pool with steady state seepage
saturation conditions. That language does not appear to be consistent
with the Federal regulations at 30 CFR 816/817.49(a)(4)(ii), which
provides that impoundments not included in 816/817.49(a)(4)(i), except
for a coal mine waste impounding structure, shall have a minimum static
safety factor of 1.3 for a normal pool with steady state seepage
saturation conditions or meet the requirements of 30 CFR 780.25(c)(3).
The State's language does not specify which static safety factor, if
any, applies to TR-60 Class A impoundments. The Federal regulations
provide that Class A impoundments, which do not meet the Class B or C
criteria for dams in TR-60, must have a minimum static safety factor of
1.3. The State maintains that the last portion of this provision is
applicable to impoundments not
[[Page 10770]]
meeting the Class B or C criteria in TR-60 (Administrative Record
Number WV-1438). Because the proposed amendment clearly provides for a
static safety factor of 1.5 for impoundments that meet the size or
other criteria of 30 CFR 77.216(a) and impoundments meeting the Class B
or C criteria for dams in TR-60, it is our understanding that CSR 38-2-
5.4.b.10 provides for a 1.3 minimum static safety factor for all other
impoundments that do not meet the size or other criteria of 30 CFR
77.216(a) or are not impoundments that meet the Class B or C criteria
for dams in TR-60, and are not coal mine waste impounding structures.
Therefore, we find that proposed CSR 38-2-5.4.b.10 is no less effective
than the Federal regulations at 30 CFR 816/817.49(a)(4), and it can be
approved. Our approval of proposed CSR 38-2-5.4.b.10 is based upon our
understanding discussed above.
As amended, CSR 38-2-5.4.b.10 also satisfies a portion of the July
22, 1997, 732 letter that OSM sent to the State. As we discussed above
in Finding 2.c, WVDEP's Web page contains a copy of TR-60, and it
includes the revisions that were adopted in October 1990. Therefore,
because the State intends to require that the revised version of TR-60
be used by operators when designing and constructing sediment control
or other water retention structures within the State, we find that the
proposed reference to TR-60 is consistent with and no less effective
than the Federal regulations at 30 CFR 816/817.49(a)(4)(i).
f. CSR 38-2-5.4.b.12. This provision provides for stable
foundations of sediment control structures, and it has been amended by
adding language at the end of the final sentence to clarify that the
laboratory testing of foundation material shall be to determine the
design requirements for foundation stability. As amended, Subsection
5.4.b.12 provides as follows:
5.4.b.12. Provide for stable foundations during all phases of
construction and operation and be designed based on adequate and
accurate information on the foundation conditions. For structures
meeting the criteria of paragraph 5.4.b.10 of this subdivision,
provide foundation investigations and any necessary laboratory
testing of foundation material, shall be performed to determine the
design requirements for foundation stability.
It is our understanding that the reference to CSR 38-2-5.4.b.10 in
the proposed provision means that foundation investigations and any
necessary laboratory testing of foundation materials must be performed
for impoundments that meet the Class B or C criteria for dams at TR-60,
the size or other criteria of the Mine Safety and Health Administration
(MSHA) at 30 CFR 77.216(a), or the West Virginia Dam Control Act. Thus,
foundation investigations or laboratory testing of foundation material
for Class A dams will not be required by this subsection. We find that
as amended, CSR 38-2-5.4.b.12 is consistent with and no less effective
than the Federal regulations at 30 CFR 816/817.49(a)(6) concerning
foundation testing for impoundments, and can be approved. Our approval
of this provision is based upon our understanding discussed above.
g. CSR 38-2-5.4.c.7. This provision is new and provides as follows:
5.4.c.7. Impoundments meeting the Class B or C criteria for dams
in Earth Dams and Reservoirs, TR-60 shall comply with the following:
(1) ``Minimum Emergency Spillway Hydrologic Criteria'' table in TR-
60; (2) the emergency spillway hydrograph criteria in the ``Minimum
Emergency Spillway Hydrologic Criteria'' table in TR-60, or larger
event specified by the Secretary; and (3) and the requirements of
this subdivision.
We find that the proposed language at CSR 38-2-5.4.c.7 is
substantively identical to and no less effective than the Federal
regulations at 30 CFR 816/817.49(a)(1), 30 CFR 816/817.49(a)(5), and 30
CFR 816/817.49(a)(9)(ii)(A), and it can be approved. The proposed
amendment also satisfies a portion of the July 22, 1997, 732 letter
that OSM sent to the State. As we discussed above in Finding 2.c,
WVDEP's Web page contains a copy of TR-60, and it includes the
revisions that were adopted in October 1990. Therefore, because the
State intends to require that the revised version of TR-60 be used by
operators when designing and constructing sediment control or other
water retention structures within the State, we find that the proposed
reference to TR-60 is consistent with and no less effective than the
Federal regulations at 30 CFR 816/817.49(a)(1).
In addition, we note that the State rules at CSR 38-2-5.4.c do not
require design plans for structures that meet the Class B or C criteria
for dams in TR-60 to include a stability analysis, as provided by 30
CFR 780.25(f). The stability analysis must include, but is not limited
to, strength parameters, pore pressures, and long-term seepage
conditions. In addition, the design plan must contain a description of
each engineering design assumption and calculation with a discussion of
each alternative considered in selecting the specific design parameters
and construction methods. CSR 38-2-5.4.c.6.D, 38-4-10 and 38-4-11.4
require stability analyses for impoundments that meet the size or other
criteria of MSHA or the West Virginia Dam Control Act standards.
However, State rules at CSR 38-2-5.4.c.5 and 5.4.c.6 do not
specifically require a stability analysis to be conducted for Class B
or C impoundments. In addition, they do not specify what must be
included in the stability analysis and the design plans for such
structures. According to WVDEP (Administrative Record Number WV-1438),
it is necessary for permit applicants to perform a stability analysis
to demonstrate that impoundments that meet Class B or C criteria for
dams in TR-60 are designed to have a static safety factor of 1.5 with
steady state seepage saturation conditions and a seismic safety factor
of 1.2. Steady state seepage analysis techniques include flow nets,
finite element analyses, or finite difference analyses. To conduct a
steady state seepage analysis, State officials say a set of factors is
needed, which include strength and pore pressure. Saturated conditions
or long-term seepage condition is just steady seepage at maximum
storage pool. Therefore, to demonstrate that Class B or C impoundments
are designed to have a static safety factor of 1.5 with a steady state
seepage saturation, the permit applicant would have to provide
information required by Subsection 5.4.c.6.D. Therefore, CSR 38-2-5.4.c
remains approved with the understanding that stability analyses will be
conducted for all structures that meet the Class B or C criteria for
dams in TR-60 as required by 30 CFR 780.25(f).
h. CSR 38-2-5.4.d.4. This provision concerns design and
construction certification of coal refuse impoundments and embankment
type impoundments and has been amended by adding language concerning
impoundments meeting the Class B or C criteria for dams. As amended,
Subsection 5.4.d.4 provides as follows:
5.4.d.4. Design and construction certification of coal refuse
impoundments and embankment type impoundments meeting or exceeding
the size requirements or other criteria of Federal MSHA regulations
at 30 CFR 77.216 (a) or impoundments meeting the Class B or C
criteria for dams in Earth Dams and Reservoirs, TR-60 may be
performed only by a registered professional engineer experienced in
the design and construction of impoundments.
The Federal regulations at 30 CFR 816/817.49(a)(3) provide that the
design of impoundments shall be certified in accordance with 30 CFR
780.25(a). The Federal regulations at 30 CFR 780.25(a)
[[Page 10771]]
provide that impoundments meeting the Class B or C criteria for dams in
TR-60 shall comply with the requirements of 30 CFR 780.25 for
structures that meet or exceed the size or other criteria of MSHA. Each
detailed design plan for a structure that meets or exceeds the size or
other criteria of MSHA regulations at 30 CFR 77.216(a) shall, as
required by 30 CFR 780.25(a)(2)(i), be prepared by, or under the
direction of, and certified by a qualified registered professional
engineer with assistance from experts in related fields such as
geology, land surveying, and landscape architecture.
The West Virginia regulations at CSR 38-2-5.4.d.1, concerning
certification, provide that prior to any surface mining activities in
the component drainage area of a permit controlled by a sediment
control structure, that specific structure shall be certified as to
construction in accordance with the plans, designs, and specifications
set forth in the preplan, or in accordance with as-built plans. The
West Virginia regulations at CSR 38-2-5.4.d.4, as amended here, limit
such design and construction certification to registered professional
engineers experienced in the design and construction of impoundments
when the designs concern MSHA impoundment regulations at 30 CFR
77.216(a) or when the impoundments meet the Class B or C criteria at
TR-60.
We must note, however, that the State's requirements at Subsection
3.6.h.5 provide that only the design plan for impoundments that meet
the size or storage capacity of the West Virginia Dam Control Act must
be prepared by, or under the direction of, and certified by a qualified
registered professional engineer. The proposed rule at Subsection
5.4.d.4 does not specifically require the design plan to be prepared by
a registered professional engineer. The proposed rule only requires the
design to be certified by a registered professional engineer. However,
given that certification of the design by a registered professional
engineer is required, we are approving Subsection 5.4.d.4 with the
understanding that design plans for impoundments that meet the Class B
or C criteria for dams in TR-60 and meet or exceed the size or other
criteria of MSHA at 30 CFR 77.216(a) will be prepared by, or under the
direction of, and certified by a registered professional engineer as
provided by 30 CFR 780.25(a)(2).
Furthermore, we are approving Subsection 5.4.d.3 with the
understanding that the design plans for all other structures not
included in Subsections 3.6.h.5 or 5.4.d.4 will be prepared by, or
under the direction of, and certified by a registered professional
engineer or licensed land surveyor as provided by 30 CFR 780.25(a)(3).
In addition, as provided by 30 CFR 780.25(a)(2), the detailed design
plan for an impoundment that meets the Class B or C criteria for dams
in TR-60 or meets or exceeds the size or other criteria of MSHA at 30
CFR 77.216(a) must include (1) A geotechnical investigation, (2) design
and construction requirements for the structure, (3) an operation and
maintenance of the structure, and (4) a timetable and plans for removal
of the structure. Similar design plan requirements at 30 CFR
780.25(a)(3) apply to impoundments not included in paragraph (a)(2).
Such requirements are not specifically provided for in Subsection 5.4.
However, similar design requirements are set forth at Subsection 3.6.h.
Therefore we are approving Subsection 5.4 with the understanding that
the design plan requirements at Subsection 3.6.h apply to those
impoundments that meet the Class B or C criteria for dams in TR-60 or
meet or exceed the size or other criteria of MSHA at 30 CFR 77.216(a)
as provided by 30 CFR 780.25(a)(2). We are also approving Subsection
5.4 to the extent that the design plan requirements at Subsection 3.6.h
apply to all other impoundments not identified above as provided by 30
CFR 780.25(a)(3). In summary, we find that as amended, CSR 38-2-5.4.d.4
is consistent with and no less effective than the Federal regulations
at 30 CFR 780.25(a)(2) and (a)(3) and 30 CFR 816/817.49(a)(3)
concerning the design and certification of impoundments, and it can be
approved based upon our understanding discussed above.
The proposed amendment at CSR 38-2-5.4.d.4 also satisfies a portion
of the July 22, 1997, 732 letter that OSM sent to the State. As we
discussed above in Finding 2.c, WVDEP's Web page contains a copy of TR-
60, and it includes the revisions that were adopted in October 1990.
Therefore, because the State intends to require that the revised
version of TR-60 be used by operators when designing and constructing
sediment control or other water retention structures within the State,
we find that the proposed reference to TR-60 is consistent with and no
less effective than the Federal regulations at 30 CFR 816/817.49(a)(1).
i. CSR 38-2-5.4.e.1. This provision concerns the inspection of
impoundments and sediment control structures, and has been amended by
adding language concerning impoundments meeting the Class B or C
criteria for dams in TR-60. As amended, Subsection 5.4.e.1 provides as
follows:
5.4.e.1. A qualified registered professional engineer or other
qualified professional specialist, under the direction of the
professional engineer, shall inspect each impoundment or sediment
control structure provided, that a licensed land surveyor may
inspect those impoundments or sediment control or other water
retention structures which do not meet the size or other criteria of
30 CFR 77.216(a), Impoundments meeting the Class B or C criteria for
dams in Earth Dams and Reservoirs, TR-60 or W. Va. Code [Section]
22-14 et seq., and which are not constructed of coal processing
waste or coal refuse. The professional engineer, licensed land
surveyor, or specialist shall be experienced in the construction of
impoundments and sediment control structures.
The Federal regulations at 30 CFR 816/817.49(a)(11)(iv) provide
that a qualified registered professional land surveyor may inspect any
temporary or permanent impoundment that does not meet the Class B or C
criteria of TR-60, the size or other criteria of 30 CFR 77.216(a), or
is not a coal mine waste impounding structure covered by the Federal
regulations at 30 CFR 816.84. The proposed amendment to CSR 38-2-
5.4.e.1 provides the West Virginia program with a counterpart to the
Federal regulations at 30 CFR 816/817.49(a)(11)(iv). We note, however,
that as written, CSR 38-2-5.4.e.1 is not perfectly clear as to its
intended meaning. Specifically, the phrase ``Impoundments meeting''
confuses the intended meaning of the proviso that identifies the
impoundments that a licensed land surveyor may not inspect. It is our
understanding that the proviso at CSR 38-2-5.4.e.1 means that a
licensed land surveyor may not inspect impoundments or sediment control
or other water retention structures which meet the size or other
criteria of 30 CFR 77.216(a), the Class B or C criteria for dams in TR-
60, or W.Va. Code section 22-14 et seq., and which are constructed of
coal processing waste or coal refuse. Therefore, in accordance with our
understanding discussed above, we find that CSR 38-2-5.4.e.1 is
consistent with and no less effective than the Federal regulations at
30 CFR 816/817.49(a)(11)(iv), and it can be approved, except for the
words ``Impoundments meeting'' which are not approved.
The proposed amendment at CSR 38-2-5.4.e.1 also satisfies a portion
of the 732 letter that OSM sent the State on July 22, 1997. As we
discussed above in Finding 2.c, WVDEP's Web page contains a copy of TR-
60, and it includes the revisions that were adopted in October 1990.
Therefore, because the State intends to require that the revised
version of TR-60 be used by operators
[[Page 10772]]
when designing and constructing sediment control or other water
retention structures within the State, we find that the proposed
reference to TR-60 is consistent with and no less effective than the
Federal regulations at 30 CFR 816/817.49(a)(1).
j. CSR 38-2-5.4.f. This provision concerns examinations of
embankments, and it has been amended by adding language concerning
impoundments meeting the Class B or C criteria for dams in TR-60. As
amended, Subsection 5.4.f provides as follows:
5.4.f. Examinations. Embankments subject to Federal MSHA
regulations at 30 CFR 77.216 or impoundments meeting the Class B or
C criteria for dams in Earth Dams and Reservoirs, TR-60 must be
examined in accordance with 77.216-3 of said regulations. Other
embankments shall be examined at least quarterly by a qualified
person designated by the operator for appearance of structural
weakness and other hazardous conditions. Examination reports shall
be retained for review at or near the operation.
We find that, as amended, CSR 38-2-5.4.f is substantively identical to
the Federal regulations at 30 CFR 816/817.49(a)(12) concerning the
examination of impoundments, and it can be approved.
The proposed amendment at CSR 38-2-5.4.f also satisfies a portion
of the July 22, 1997, 732 letter that OSM sent to the State. As we
discussed above in Finding 2.c, WVDEP's web page contains a copy of TR-
60, and it includes the revisions that were adopted in October 1990.
Therefore, because the State intends to require that the revised
version of TR-60 be used by operators when designing and constructing
sediment control or other water retention structures within the State,
we find that the proposed reference to TR-60 is consistent with and no
less effective than the Federal regulations at 30 CFR 816/817.49(a)(1).
k. CSR 38-2-7.4.b.1.A.1. This provision concerns the development of
a planting plan and long-term management plan for commercial forestry.
The first sentence of this provision is amended by clarifying that the
professional forester charged with developing the commercial forestry
planting and the long-term management plan must be a West Virginia
registered professional forester. The provision is to ensure compliance
with WV Code 30-19-1 et seq. regarding State registered foresters and
to clarify that the development of planting plans for mountaintop
removal mining operations may only be done by a registered State
forester. SMCRA at section 515(c)(3)(B) and the Federal regulations at
30 CFR 785.14(c) require that an applicant for a mountaintop removal
mining permit present specific plans for the proposed postmining use.
We find that the proposed requirement that the professional forester
specified at CSR 38-2-7.4.b.1.A.1 must be a West Virginia professional
forester does not render the provision inconsistent with those Federal
requirements, and it can be approved.
l. CSR 38-2-7.4.b.1.A.3. This provision concerns the commercial
species planting plan for commercial forestry. It is amended in the
first sentence to clarify that the registered professional forester
must be a West Virginia registered professional forester. The provision
is to ensure compliance with WV Code 30-19-1 et seq. regarding State
registered foresters and to clarify that the development of planting
plans for mountaintop removal mining operations may only be done by a
registered State forester. SMCRA at section 515(c)(3)(B) and the
Federal regulations at 30 CFR 785.14(c) require that an applicant for a
mountaintop removal mining permit present specific plans for the
proposed postmining use. We find that the proposed requirement that the
professional forester specified at CSR 38-2-7.4.b.1.A.3 must be a West
Virginia professional forester does not render the provision
inconsistent with those Federal requirements, and it can be approved.
m. CSR 38-2-7.4.b.1.A.3.(b). This provision concerns the creation
of a certified geology map relating to commercial forestry areas. The
provision is amended by revising the kinds of information pertaining to
physical and chemical properties of strata that must be provided in the
permit application. As amended, Subsection 7.4.b.1.A.3.(b) provides as
follows:
7.4.b.1.A.3.(b). An approved geologist shall create a certified
geology map showing the location, depth, and volume of all strata in
the mined area, the physical and chemical properties of each stratum
to include rock texture, pH, potential acidity and alkalinity. For
each stratum proposed as soil medium, the following information
shall also be provided: total soluble salts, degree of weathering,
extractable levels of phosphorus, potassium, calcium, magnesium,
manganese, and iron and other properties required by the Secretary
to select best available materials for mine soils.
In its submittal of its amendment to this provision, the WVDEP
stated that the amendment is to clarify that only the material proposed
to be the resulting soil medium needs the additional analyses. The
State acknowledged that each stratum will be tested in accordance with
acid-base accounting standards, but only the topsoil substitute
requires further testing (Administrative Record Number WV-1438). SMCRA
and the Federal regulations do not contain specific counterparts to the
amended provision. However, when an applicant proposes to use selected
overburden material as a supplement or substitute for topsoil,
additional analyses, trials, and tests are required as provided by 30
CFR 779.21(b). Based on that understanding, we find that as amended,
CSR 38-2-7.4.b.1.A.3.(b) is not inconsistent with the requirements of
SMCRA section 515(c) and the Federal regulations at 30 CFR 785.14
concerning mountaintop removal mining operations, and it can be
approved.
n. CSR 38-2-7.4.b.1.A.4. This provision concerns the commercial
forestry long-term management plan, and it is amended in the first
sentence by adding the words ``West Virginia'' immediately before the
words ``registered professional forester.'' The provision is to ensure
compliance with WV Code 30-19-1 et seq. regarding State registered
foresters and to clarify that the development of the long-term
management plan for a mountaintop removal mining operation may only be
done by a registered State forester. SMCRA at section 515(c)(3)(B) and
the Federal regulations at 30 CFR 785.14(c) require that an applicant
for a mountaintop removal mining permit present specific plans for the
proposed postmining use. We find that the proposed requirement that the
professional forester specified at CSR 38-2-7.4.b.1.A.4 must be a West
Virginia professional forester does not render the provision
inconsistent with those Federal requirements, and it can be approved.
o. CSR 38-2-7.4.b.1.B.1. This provision concerns a commercial
forestry and forestry reclamation plan, and is amended by deleting the
word ``certified'' immediately before the phrase ``professional soil
scientist'' in the first sentence. As amended, Subsection 7.4.b.1.B.1
provides that a soil scientist employed by the WVDEP will review and
field verify the soil slope and sandstone mapping in mountaintop
removal mining permit applications involving commercial forestry.
In its submittal of its amendment to this provision, the WVDEP
stated that the word ``certified'' is being deleted because West
Virginia does not have a certification system for soil scientist. SMCRA
at section 515(c)(3)(B) and the Federal regulations at 30 CFR 785.14(c)
require that an applicant for a mountaintop removal mining permit
present specific plans for the proposed
[[Page 10773]]
postmining use. We find that the proposed deletion of the word
``certified'' does not render the provision inconsistent with the
Federal requirements and it can be approved. We note the National Park
Service (NPS) comment (see Section IV. Summary and Disposition of
Comments, Federal Agency Comments, below) that the West Virginia
Association of Professional Soils Scientists (WVAPSS) does have a
registry of certified professional soils scientists. By requiring soil
scientists to be listed on the WVAPSS registry or a similar one, the
State would create a professional image throughout its regulatory
program and encourage higher standards of quality.
p. CSR 38-2-7.4.b.1.C.1. This provision concerns commercial
forestry areas, and is amended by adding the word ``areas'' immediately
following the words ``commercial forestry'' in the first sentence, and
by revising the standards for slopes of the postmining landform. As
amended, Subsection 7.4.b.1.C.1 provides as follows:
7.4.b.1.C.1. For commercial forestry areas, the Secretary shall
assure that the postmining landscape is rolling, and diverse. The
backfill on the mine bench shall be configured to create a
postmining topography that includes the principles of land forming
(e.g., the creation of swales) to reflect the premining
irregularities in the land. Postmining landform shall provide a
rolling topography with slopes between 5% and 20% with an average
slope of 10% to 15%. The elevation change between the ridgeline and
the valleys shall be varied. The slope lengths shall not exceed 500
feet. The minimum thickness of backfill, including mine soil, placed
on the pavement of the basal seam mined in any particular area shall
be ten (10) feet.
We find that the addition of the word ``areas'' improves the
clarity of the intended meaning of this provision. In addition, the
slope percentages are changed from 5% and 15% with an average slope of
10 to 12.5% to between 5% and 15% with an average slope of 10% to 15%.
While the proposed change would allow an increase in the steepness of
slopes by about 2.5%, the final average slopes on mountaintop removal
mining operations receiving approximate original contour (AOC)
variances with an approved postmining land use of commercial forestry
could not exceed 15% or about 8.5 degrees. SMCRA at section
515(c)(3)(B) and the Federal regulations at 30 CFR 785.14(c) require
that an applicant for a mountaintop removal mining permit present
specific plans for the proposed postmining use. However, those Federal
provisions do not provide the specificity that is provided in this
provision. We find that the proposed amendment to CSR 38-2-7.4.b.1.C.1
does not render the provision inconsistent with those Federal
requirements, and it can be approved.
q. CSR 38-2-7.4.b.1.C.2. This provision concerns commercial
forestry areas and is amended by adding the word ``areas'' immediately
after the phrase ``commercial forestry'' in the first sentence. We find
that the addition of the word ``areas'' improves the clarity of the
intended meaning of this provision and does not render the provision
inconsistent with the Federal requirements at 30 CFR 785.14(c)
concerning mountaintop removal mining operations, and it can be
approved.
r. CSR 38-2-7.4.b.1.C.3. This provision concerns commercial
forestry areas and is amended by deleting the words ``in areas'' in the
first sentence and adding the word ``areas'' in their place. We find
that the proposed amendment to this provision improves the clarity of
the intended meaning of this provision and does not render the
provision inconsistent with the Federal requirements at 30 CFR
785.14(c) concerning mountaintop removal mining operations, and it can
be approved.
s. CSR 38-2-7.4.b.1.C.4. This provision concerns commercial
forestry areas and is amended by adding the word ``areas'' immediately
following the words ``commercial forestry'' in the first sentence. In
addition, the first sentence is also amended by deleting the word
``permitted'' and replacing that word with the words ``commercial
forestry.'' We find that the addition of the word ``areas'' improves
the clarity of the intended meaning of this provision. The deletion of
the word ``permitted'' and its replacement with the words ``commercial
forestry'' eliminates an inconsistency in the language of this
provision. It is now clear that at least 3.0 acres of ponds, permanent
impoundments or wetlands must be created on each 200 acres of
commercial forestry area. SMCRA at section 515(c)(3)(B) and the Federal
regulations at 30 CFR 785.14(c) require that an applicant for a
mountaintop removal mining permit present specific plans for the
proposed postmining use. However, those Federal provisions do not
provide the specificity that is provided in this provision. We find
that the proposed amendment to CSR 38-2-7.4.b.1.C.4 does not render the
provision inconsistent with those Federal requirements and it can be
approved.
t. CSR 38-2-7.4.b.1.C.5. This provision concerns forestry areas and
is amended by adding the word ``areas'' immediately after the word
``forestry'' in the first sentence. We find that because the addition
of the word ``areas'' improves the clarity of the intended meaning of
this provision and does not render the provision inconsistent with the
Federal requirements at 30 CFR 785.14(c) concerning mountaintop removal
mining operations, it can be approved.
u. CSR 38-2-7.4.b.1.D.6. This provision concerns soil substitutes,
and is amended by adding the words ``and is in accordance with 14.3.c
of this rule'' at the end of the first sentence. As amended, the first
sentence at CSR 38-2-7.4.b.1.D.6 provides as follows:
7.4.b.1.D.6. Before approving the use of soil substitutes, the
Secretary shall require the permittee to demonstrate that the
selected overburden material is suitable for restoring land
capability and productivity and is in accordance with 14.3.c of this
rule.
The WVDEP stated in its submittal that this change has been made to
comply with the required program amendment codified in the Federal
regulations at 30 CFR 948.16(wwww). The Federal regulations at 30 CFR
948.16(wwww) provide that CSR 38-2-7.4.b.1.D.6 be amended to provide
that the substitute material is equally suitable for sustaining
vegetation as the existing topsoil and the resulting medium is the best
available in the permit area to support vegetation (see 65 FR 50409,
50418; August 18, 2000). The Federal regulations at 30 CFR 816.22(b)
concerning topsoil substitutes and supplements provide that the
operator must demonstrate that the resulting topsoil substitute or
supplement medium is equal to, or more suitable for sustaining
vegetation than, the existing topsoil, and the resulting soil medium is
the best available in the permit area to support revegetation. West
Virginia has amended CSR 38-2-7.4.b.1.D.6 by adding that topsoil
substitutes must be in accordance with CSR 38-2-14.3.c. The State
provision at CSR 38-2-14.3.c. concerns topsoil substitutes, and
provides for a certification of analysis by a qualified laboratory
stating that, at 14.3.c.1 that ``the proposed substitute material is
equally suitable for sustaining vegetation as the existing topsoil,''
and at Subsection 14.3.c.2, the ``resulting soil medium is the best
available in the permit area to support vegetation.'' Therefore, we
find that as amended, CSR 38-2-7.4.b.1.D.6 is no less effective than
the Federal regulations at 30 CFR 816.22(b), and it can be approved. We
also find that this amendment satisfies the required program amendment
codified in the Federal regulations at 30 CFR 948.16(wwww), which can
be removed.
[[Page 10774]]
v. CSR 38-2-7.4.b.1.D.8. This provision concerns the final surface
material used as the commercial forestry mine soil and has been amended
in the first sentence by adding the word ``areas'' immediately after
the phrase ``[f]or commercial forestry.'' We find that the addition of
the word ``areas'' improves the clarity of the intended meaning of this
provision and does not render the provision inconsistent with the
Federal requirements at 30 CFR 785.14(c) concerning mountaintop removal
mining operations, and it can be approved.
w. CSR 38-2-7.4.b.1.D.9. This provision concerns the final surface
material used as the forestry mine soil and has been amended in the
first sentence by adding the word ``areas'' immediately after the
phrase ``[f]or forestry.'' We find that the addition of the word
``areas'' improves the clarity of the intended meaning of this
provision and does not render the provision inconsistent with the
Federal requirements at 30 CFR 785.14(c) concerning mountaintop removal
mining operations, and it can be approved.
x. CSR 38-2-7.4.b.1.D.11. This provision concerns forestry mine
soil, and has been amended by adding the phrase ``except for valley
fill faces'' at the end of the sentence. As amended, Subsection
7.4.b.1.D.11 provides that ``[f]orestry mine soil shall, at a minimum,
be placed on all areas achieving AOC, except for valley fill faces.''
In its submittal of this provision, the WVDEP stated that the
amendment is intended to provide clarification. As proposed, forestry
mine soil shall, at a minimum, be placed on all areas achieving AOC,
except for valley fill faces. This change is intended to clarify that
valley fill faces do not have to be covered with four feet of soil or a
mixture of soil and suitable substitutes. However, we notified the
State that the revision as proposed could be interpreted as requiring
fills to be returned to AOC. Under the Federal rules, excess spoil
disposal areas do not have to achieve AOC. The State acknowledged that
the definition of AOC at WV Code 22-2-3(e) clarifies that excess spoil
disposal areas do not have to achieve AOC (Administrative Record Number
WV-1438). Unlike the Federal requirements, the proposed revision could
also be interpreted as not requiring any forestry mine soil to be
placed on valley fill faces. Therefore, we are approving this provision
with the understanding that the exemption only applies to the four-foot
requirement at CSR 38-2-7.4.b.1.D.8 and 7.4.b.1.D.9. Sufficient
forestry mine soil shall be placed on valley fill faces to sustain
vegetation and support the approved postmining land use in accordance
with Finding 2.ff below. Based on that understanding, we find that this
revision does not render CSR 38-2-7.4.b.1.D.11 inconsistent with the
Federal mountaintop removal mining requirements at 30 CFR 785.14(c) or
the topsoil and subsoil provisions at 30 CFR 816.22, and it can be
approved.
y. CSR 38-2-7.4.b.1.H.1. This provision concerns tree species and
compositions for commercial forestry areas and forestry areas. The list
of hardwoods in this provision for commercial forestry areas is amended
by deleting ``white and red oaks, other native oaks'' and adding in
their place ``white oak, chestnut oak, northern red oak, and black
oak'' and by adding the words ``basswood, cucumber magnolia'' to the
list. In addition, the word ``areas'' is added immediately following
the words ``[f]or forestry'' in the third sentence. In addition, the
list of hardwoods for forestry areas is amended by deleting the words
``white and red oaks, other native oaks'' and adding in their place the
words ``white oak, chestnut oak, northern red oak, black oak,'' and by
adding the words `` basswood, cucumber magnolia'' to the list. As
amended, Subsection 7.4.b.1.H.1 provides as follows:
7.4.b.1.H.1. Commercial tree and nurse tree species selection
shall be based on site-specific characteristics and long-term goals
outlined in the forest management plan and approved by a registered
professional forester. For commercial forestry areas, the Secretary
shall assure that all areas suitable for hardwoods are planted with
native hardwoods at a rate of 500 seedlings per acre in continuous
mixtures across the permitted area with at least six (6) species
from the following list: white oak, chestnut oak, northern red oak,
black oak, white ash, yellow-poplar, basswood, cucumber magnolia,
black walnut, sugar maple, black cherry, or native hickories. For
forestry areas, the Secretary shall assure that all areas suitable
for hardwoods are planted with native hardwoods at a rate of 450
seedlings per acre in continuous mixtures across the permitted area
with at least three (3) or four (4) species from the following list:
white oak, chestnut oak, northern red oak, black oak, white ash,
yellow-poplar, basswood, cucumber magnolia, black walnut, sugar
maple, black cherry, or native hickories.
In its submittal of the amendment to this provision, the WVDEP
stated that the amendment is intended to provide clarification for oaks
and mixtures. We find that the addition of the words ``areas'' improves
the clarity of the intended meaning of this provision, and does not
render the provision inconsistent with the Federal requirements
concerning mountaintop removal mining operations and can be approved.
The amendment to the lists of hardwoods for both commercial forestry
areas and forestry areas provides increased specificity of hardwood
tree species. SMCRA at section 515(c)(3)(B) and the Federal regulations
at 30 CFR 785.14(c) require that an applicant for a mountaintop removal
mining permit present specific plans for the proposed postmining use.
In addition, 30 CFR 816.116(b)(3) requires stocking and planting
arrangements to be based on local and regional conditions and after
consultation and approval by State forestry and wildlife agencies.
However, those Federal provisions do not provide the specificity of
tree species that is provided in this provision. Nevertheless, we find
that the proposed amendment to CSR 38-2-7.4.b.1.H.1 does not render the
provision inconsistent with the aforementioned Federal requirements,
and it can be approved.
z. CSR 38-2-7.4.b.1.H.2. This provision has been amended in the
first sentence by adding the word ``areas'' immediately after the
phrase ``[f]or commercial forestry.'' We find that because the addition
of the word ``areas'' improves the clarity of the intended meaning of
this provision and does not render the provision inconsistent with the
Federal requirements concerning mountaintop removal mining operations
at 30 CFR 785.14(c), and it can be approved.
aa. CSR 38-2-7.4.b.1.H.6. This provision has been amended in the
first sentence by adding the word ``areas'' immediately after the
phrase ``[f]or commercial forestry.'' We find that because the addition
of the word ``areas'' improves the clarity of the intended meaning of
this provision and does not render the provision inconsistent with the
Federal requirements concerning mountaintop removal mining operations
at 30 CFR 785.14(c), and it can be approved.
bb. CSR 38-2-7.4.b.1.I.1. Subsection 7.4.b.1.I.1 has been amended
in the last sentence by deleting the word ``certified'' immediately
before the words ``soil scientist'' and adding in its place the word
``professional.'' As amended, the sentence provides as follows:
``[b]efore approving Phase I bond release, a professional soil
scientist shall certify, and the Secretary shall make a written finding
that the mine soil meets these criteria.'' In its submittal of its
amendment to CSR 38-2-7.4.b.1.B.1, the WVDEP stated that the word
``certified'' is being deleted
[[Page 10775]]
because West Virginia does not have a certification system for soil
scientist. SMCRA at section 515(c)(3)(B) and the Federal regulations at
30 CFR 785.14(c) require that an applicant for a mountaintop removal
mining permit present specific plans for the proposed postmining use.
We find that the proposed deletion of the word ``certified'' does not
render the provision inconsistent with the Federal requirements
regarding mountaintop removal mining operations at 30 CFR 785.14(c) and
bond release at 30 CFR 800.40, and it can be approved. We note that as
mentioned above at Finding 2.o., the NPS commented that the WVAPSS does
have a registry of certified professional soils scientists. By
requiring soil scientists to be listed on the WVAPSS registry or a
similar one, the State would create a professional image throughout its
regulatory program and encourage higher standards of quality.
cc. CSR 38-2-7.4.b.1.I.2. Subsection 7.4.b.1.I.2 has been amended
in two places by adding the word ``areas.'' The first sentence has been
amended by adding the word ``areas'' immediately after the phrase ``for
commercial forestry.'' The second from last sentence has been amended
by adding the word ``areas'' immediately after the phrase ``both
commercial forestry and forestry.'' We find that the addition of the
word ``areas'' improves the clarity of the intended meaning of this
provision and does not render the provision inconsistent with the
Federal requirements at 30 CFR 785.14(c) concerning mountaintop removal
mining operations, and it can be approved.
dd. CSR 38-2-7.4.b.1.I.3. Subsection 7.4.b.1.I.3 has been amended
in three places by adding the word ``areas.'' The first sentence has
been amended by adding the word ``areas'' immediately after the phrase
``for commercial forestry and forestry.'' The second sentence has been
amended by adding the word ``areas'' immediately after the words
``[f]or forestry.'' The third sentence has been amended by adding the
word ``areas'' immediately after the phrase ``for commercial
forestry.'' We find that the addition of the word ``areas'' improves
the clarity of the intended meaning of this provision and does not
render the provision inconsistent with the Federal requirements at 30
CFR 785.14(c) concerning mountaintop removal mining operations, and it
can be approved.
ee. CSR 38-2-7.4.b.1.I.4 The State proposes to modify Subsection
7.4.b.1.I.4 by adding the phrase, ``and the site meets the standards of
Subsection 9.3.h of this rule.'' CSR 38-2-9.3.h contains forest
resource conservation standards for commercial reforestation
operations. The State rules at CSR 38-2-7.4.b.1.I.4. provide that a
permittee who fails to achieve the ``'commercial forestry'''
productivity requirements at the end of the twelfth growing season must
either pay into the Special Reclamation Fund an amount equal to twice
the remaining bond amount or perform an equivalent amount of in-kind
mitigation. The money collected under this plan will be used to
establish forests on bond forfeiture sites. In-kind mitigation requires
establishing forests on AML or bond forfeiture sites. According to
State officials, the phrase ``and the site meets the standards of
Subsection 9.3.h of this rule'' was to ensure that operators would, at
a minimum, have to meet the commercial reforestation standards of that
subsection if the 12-year productivity requirement of Subsection
7.4.b.1.I.3 was not met (Administrative Record Number WV-1438).
Initially, we were concerned that, by simply referencing the
revegetation standards at Subsection 9.3.h, the State had not made it
clear that all the other requirements of the approved program and the
permit were fully met in accordance with section 519(c)(3) of SMCRA and
30 CFR 800.40(c)(3). That concern was further complicated by the fact
that Subsection 7.4.b.1.I.5 only references the bond release
requirements at Subsections 12.2.d and 12.2.e. At a minimum, we felt
that the State should have referenced the bond release requirements at
Subsection 12.2.c, especially Subsection 12.2.c.3. Subsection 12.2.c.3
provides that Phase III reclamation shall be considered completed and
the Secretary may release the remaining bond(s) upon successful
completion of the reclamation requirements of the Act, this rule, and
the terms and conditions of the permit.
State officials further clarified that the references to
Subsections 12.d and 12.e were added at the request of the coal
industry to allow for incremental bond release, regardless of whether
the operation was incrementally bonded initially or not. Accordingly,
all reclamation requirements of the approved program and the permit
must be met prior to final bond release for all mountaintop removal
mining operations with a postmining land use of commercial forestry and
forestry.
State officials also maintain that the penalty/mitigation
requirement is not a civil penalty, but an optional performance
standard that can be used in the determination of success if the 12-
year productivity requirement is not met. According to the State,
failure to achieve the productivity standard under these rules by the
end of the 12th year is not a violation, and does not go through the
State's civil penalty assessment process. That is, to meet the
performance standards for Commercial Forestry, the permittee must meet
the 12-year standards or, failing that, must meet the standards for
success at CSR 38-2-9.3.h and the requirements of a commercial forestry
mitigation plan. The commercial forestry mitigation plan may consist of
either a payment to the Special Reclamation Fund of an amount equal to
twice the remaining bond amount, or the performance of an equivalent
amount of in-kind mitigation. These State provisions are in excess of
OSM's 5-year revegetation requirements. The State's clarification is
important, because in our previous decisions concerning this provision,
we had interpreted the mitigation plan (the payment to the Special
Reclamation Fund, and the in-kind mitigation) as a civil penalty
provision (see the August 18, 2000, Federal Register (65 FR at 50423,
50424)). However, we now understand that the mitigation plan is not a
substitute for or in lieu of a civil penalty to be issued under the
approved program. With the clarification provided by the State, we
understand that a violation will not occur unless a permittee fails to
meet the requirements of CSR 38-2-9.3.h or fails to meet the
requirements of the commercial forestry mitigation plan.
Considering the clarifications discussed above, we find that the
provisions at Subsection 7.4.b.1.I.4 are consistent with section
519(c)(3) of SMCRA and 30 CFR 800.40(c)(3) and can be approved.
ff. CSR 38-2-7.4.b.1.J. This provision concerns the front faces of
valley fills and has been amended by deleting existing Subsections
7.4.b.1.J.1.(b) and (c), correcting a typographical error in the
citation at Subsection 7.4.b.1.J.1.d, and re-designating existing
Subsections 7.4.b.1.J.1.(d) and (e) as new Subsections 7.4.b.1.J.1.(b)
and (c). As amended, Subsection 7.4.b.1.J. provides as follows:
7.4.b.1.J. Front Faces of Valley Fills.
7.4.b.1.J.1. Front faces of valley fills shall be exempt from
the requirements of this rule except that:
7.4.b.1.J.1.(a). They shall be graded and compacted no more than
is necessary to achieve stability and non-erodability;
7.4.b.1.J.1.(b). The groundcover mixes described in subparagraph
7.4.b.1.G. shall be used unless the Secretary requires a different
mixture;
7.4.b.1.J.1.(c) Kentucky 31 fescue, serecia lespedeza, vetches,
clovers (except ladino
[[Page 10776]]
and white clover) or other invasive species may not be used; and
7.4.b.1.J.2. Although not required by this rule, native, non-
invasive trees may be planted on the faces of fills.
To make Subsection 7.4.b.1.J.1 consistent with the other parts of
Subsection 7.4, the State deleted 7.4.b.1.J.1.(b) which provides that,
``No unweathered shales may be present in the upper four feet of
surface material.'' The State also deleted 7.4.b.1.J.1.(c) which
provides that, ``The upper four feet of surface material shall be
composed of soil and the materials described in subparagraph 7.4.b.1.D.
of this rule, when available, unless the Secretary determines other
material is necessary to achieve stability.''
The faces of excess spoil fills do not have to be covered with four
feet of surface material. However, the effect of the deletion of
Subsection (c) is that the front faces of fills are exempt from all the
requirements of this rule, except for those provisions set forth in
Subsection 7.4.b.1.J.1 which pertain to grading, compaction, stability,
and vegetative cover. As such, the revised State rule would not require
topsoil or topsoil substitutes to be redistributed on fill faces to
achieve an approximate uniform, stable thickness consistent with the
approved postmining land use as required by 30 CFR 816.22(d)(1) and
816.71(e)(2). As a result, Subsection 7.4.b.1.J.1 is rendered
inconsistent with the Federal topsoil redistribution requirements at 30
CFR 816.22(d)(1) and 816.71(e)(2). To remedy this problem, we are not
approving the deletion of the following words at CSR 38-2-
7.4.b.1.J.1(c): ``surface material shall be composed of soil and the
materials described in subparagraph 7.4.b.1.D.'' As a consequence of
this disapproval, the language quoted above will remain in the West
Virginia program. The effect of the disapproval of the language quoted
above is that the front faces of valley fills will not be exempt from
the requirements that topsoil or topsoil substitutes be redistributed
on fill faces to achieve an approximate uniform, stable thickness
consistent with the approved postmining land use as required by 30 CFR
816.22(d)(1) and 816.71(e)(2). With this disapproval, we find that the
remaining portion of CSR 38-2-7.4.b.1.J.1 is consistent with the
Federal topsoil redistribution requirements at 30 CFR 816.22(d)(1) and
816.71(e)(2) and can be approved.
In addition, the State changed a cross reference in new Subsection
7.4.1.J.1(b). We find that the correction of the citation of the
location of groundcover plant mixes from subsection ``7.4.d.1.G'' to
subsection ``7.4.b.1.G'' corrects a typographical error and can be
approved.
gg. CSR 38-2-7.5.a. Subsection 7.5 concerns Homestead postmining
land use. Subsection 7.5.a has been amended by adding a new sentence to
the end of the existing language. As amended, CSR 38-2-7.5.a provides
as follows:
7.5.a. Operations receiving a variance from AOC for this use
shall establish homesteading on at least one-half (\1/2\) of the
permit area. The remainder of the permit area shall support an
alternate AOC variance use. The acreage considered homesteading
shall be the sum of the acreage associated with the following: the
civic parcel; the commercial parcel; the conservation easement; the
homestead parcel; the rural parcel and any required infra structure.
According to the State, the rule does not dictate the requirements
for every acre, but provides flexibility for land use, so long as
certain conditions exist. A breakdown based on the minimum and maximum
acreages in the rule can be provided, but one must remember that they
will not total 100 percent of the homestead acreage. Using a 1,000-acre
mountaintop removal mining operation as an example, an operator would
have to establish homesteading on 50 percent of the permitted area or
500 acres. At least 300 acres of the homestead area may be quantifiable
based on the specific requirements in the rule. In this example, the
common lands would be 50 acres (10% x 500); the conservation easement
would be 50 acres (10% x 500); the civic parcel would be 100 acres (10%
x 1,000); and the village parcel would be 100 acres (20% x 500). The
remaining 200 acres, less acreage for perpetual easement, may be a
combination of the civic parcel, the conservation easement, and
homestead village, rural and/or commercial. If the commercial parcel is
included, then the operation would not get credit for the area in the
development plan (Administrative Record Number WV-1438).
We note that this revision, together with other changes discussed
in Finding 2.mm., is intended to comply with the required program
amendment codified in the Federal regulations at 30 CFR 948.16 (rrrrr).
The requirement at 30 CFR 948.16 (rrrrr) provides for the amendment to
revise: (1) CSR 38-2-7.5.a to clarify whether or not the calculated
acreage of the Commercial Parcel(s) is to be summed with the total
Homestead acreage for the purpose of calculating the acreage of other
various components of the Homestead Area (such as Common Lands, Village
Parcels, Conservation Easement, etc.); and (2) CSR 38-2-7.5.l.4 to
clarify whether or not the acreage for Public Nursery is to be
calculated based on the amount of acreage available for the Village
Homestead, the Civil Parcel, or the entire Homestead Area (Finding
2.mm. below addresses part 2 of 30 CFR 948.16(rrrrr)). We find that the
amendment at Subsection 7.5.a satisfies part (1) of the required
program amendment codified at 30 CFR 948.16 (rrrrr). The proposed
amendment clarifies that the acreage for ``commercial parcels'' is
indeed summed with the other various components of the Homestead Area
(such as Common Lands, Village Parcels, Conservation Easement, etc.).
Therefore, we find that part (1) of the required program amendment
codified at 30 CFR 948.16 (rrrrr) is satisfied and can be removed, and
the amendment can be approved.
hh. CSR 38-2-7.5.b.3. This provision concerns the definition of
``Commercial parcel,'' and has been amended by deleting the word
``regulation'' in the last sentence and replacing that word with the
word ``rule.'' In addition, a new sentence has been added to the end of
the provision. As amended, Subsection 7.5.b.3 provides as follows:
7.5.b.3. Commercial parcel means a parcel retained by the
landowner of record and incorporated within the homestead area on
which the landowner or its designee may develop commercial uses. The
size and location of commercial parcels shall comply with the
requirements of this rule. Provided, however, parcels retained by
the landowner for commercial development and incorporated within the
Homestead area must be developed for commercial uses as provided by
subdivision 7.5.g.5 of this rule.
In its submittal of the amendment of this provision, the WVDEP
stated that the amendment is to comply with the required program
amendment codified in the Federal regulations at 30 CFR 948.16(fffff).
The requirement at 30 CFR 948.16(fffff) provides that CSR 38-2-7.5.b.3
must be amended, or the West Virginia program must otherwise be
amended, to clarify that parcels retained by the landowner for
commercial development and incorporated within the Homestead area must
be developed for commercial uses as provided by subdivision CSR 38-2-
7.5.g.5. We find that the amendment satisfies the required program
amendment codified in the Federal regulations at 30 CFR 948.16(fffff),
and it can be removed. The amended language is approved.
ii. CSR 38-2-7.5.i.10. This provision concerns wetlands associated
with Homestead areas, and is amended by adding a new sentence
immediately following the existing first sentence. As amended,
Subsection 7.5.i.10 provides as follows:
[[Page 10777]]
7.5.i.10. Wetlands. Each homestead plan may describe areas
within the homestead area reserved for created wetlands. The created
wetlands shall comply with the requirements of 3.5 of this rule.
These created wetlands may be ponds, permanent impoundments or
wetlands created during mining. They may be left in place after
final bond release. Any pond or impoundment left in place is subject
to requirements under subsection 5.5 of this rule.
In its submittal of the amendment of this provision, the WVDEP
stated that the amendment is to comply with the required program
amendment codified in the Federal regulations at 30 CFR 948.16(iiiii).
The requirement at 30 CFR 948.16(iiiii) provides that CSR 38-2-7.5.i.10
must be amended, or the West Virginia program must otherwise be
amended, to require compliance with the permit requirements at CSR 38-
2-3.5.d. This provision requires the submittal of cross sectional areas
and profiles of all drainage and sediment control structures, including
ponds, impoundments, diversions, sumps, etc. We find that the amendment
satisfies the required program amendment codified in the Federal
regulations at 30 CFR 948.16(iiiii), and it can be removed. The amended
language is approved.
jj. CSR 38-2-7.5.j.3.A. This provision concerns the definition of
soil in relation to Homestead areas, and is amended in the first
sentence by adding the soil horizon ``E'' between soil horizons ``A''
and ``B.''
In its submittal of the amendment of this provision, the WVDEP
stated that the amendment is to comply with the required program
amendment codified in the Federal regulations at 30 CFR 948.16(jjjjj).
The requirement at 30 CFR 948.16(jjjjj) provides that CSR 38-2-
7.5.j.3.A be amended by adding an ``E'' horizon. The Federal definition
of ``topsoil'' at 30 CFR 701.5 provides that topsoil is the A and E
soil horizon layers of the four master soil horizons, which include the
A, E, B and C horizons. The State added the ``E'' horizon to its
definition of topsoil at 7.5.j.3.A to be consistent with the State's
definition of topsoil at CSR 38-2-2.127 and the Federal definition at
30 CFR 701.5. We find that the amendment satisfies the required program
amendment codified in the Federal regulations at 30 CFR 948.16(jjjjj),
and it can be removed. The amendment is approved.
kk. CSR 38-2-7.5.j.3.B. This provision concerns the recovery and
use of soil on Homestead areas, and it is amended by deleting the
exception that is stated in the first sentence. As amended, Subsection
7.5.j.3.B provides as follows:
7.5.j.3.B. The Secretary shall require the operator to recover
and use all the soil on the mined area, as shown on the soil maps.
The Secretary shall assure that all saved soil includes all of the
material from the O and A horizons.
In its submittal of this revision, the WVDEP stated that the
revision is intended to comply with the required program amendment
codified in the Federal regulations at 30 CFR 948.16 (kkkkk). The
requirement at 30 CFR 948.16 (kkkkk) provides that CSR 38-2-7.5.j.3.B
must be amended by deleting the phrase, ``except for those areas with a
slope of at least 50%,'' and by deleting the phrase, ``and other areas
from which the applicant affirmatively demonstrates and the Director of
the WVDEP finds that soil cannot reasonably be recovered.'' With this
change, the State rules at CSR 38-2-14.3, like the Federal rules at 30
CFR 816.22, still require an operator to save and redistribute all
topsoil. Under this revision, topsoil on slopes greater than 50 percent
may be removed in combination with and saved with the other soil
horizons. We find that the amendment satisfies the required program
amendment codified in the Federal regulations at 30 CFR 948.16(kkkkk),
and it can be removed. The amended language is approved.
ll. CSR 38-2-7.5.j.3.E. This provision concerns soil substitutes
and is amended by adding the phrase ``and is in accordance with 14.3.c
of this rule'' at the end of the first sentence.
In its submittal of this revision, the WVDEP stated that the
revision is intended to comply with the required program amendment
codified in the Federal regulations at 30 CFR 948.16 (lllll). The
requirement at 30 CFR 948.16 (lllll) provides that CSR 38-2-7.5.j.3.E
be amended, or the West Virginia program otherwise be amended, to
provide that soil substitute material must be equally suitable for
sustaining vegetation as the existing topsoil and the resulting medium
is the best available in the permit area to support vegetation. The
West Virginia rules at CSR 38-2-14.3.c concerning top soil substitutes
provide that a qualified laboratory must certify that:
14.3.c.1. The proposed substitute material is equally suitable
for sustaining vegetation as the existing topsoil;
14.3.c.2. The resulting soil medium is the best available in the
permit area to support vegetation; and
14.3.c.3. The analyses were conducted using standard testing
procedures.
We find that the provisions at subsections 14.3.c.1 and 14.3.c.2
quoted above are substantively identical to the Federal requirements at
30 CFR 816.22(b). Therefore, we find that the required program
amendment at 30 CFR 948.16(lllll) is satisfied by the addition of the
requirement that the permittee demonstrate that the selected overburden
material used as soil substitute be in accordance with the requirements
at CSR 38-2-14.3.c, and that 30 CFR 948.16(lllll) can be removed. The
amended language is approved.
mm. CSR 38-2-7.5.l.4.A. This provision concerns public nursery
associated with Homestead areas, and is amended by adding the word
``village'' between the words ``homestead'' and ``area'' in the first
sentence.
In its submittal of this revision, the WVDEP stated that the
revision is intended to comply with required program amendment codified
in the Federal regulations at 30 CFR 948.16 (rrrrr). The requirement at
30 CFR 948.16 (rrrrr) provides for the amendment of: (1) CSR 38-2-7.5.a
to clarify whether or not the calculated acreage of the Commercial
Parcel(s) is to be summed with the total Homestead acreage for the
purpose of calculating the acreage of other various components of the
Homestead Area (such as Common Lands, Village Parcels, Conservation
Easement, etc.); and (2) CSR 38-2-7.5.l.4 to clarify whether or not the
acreage for Public Nursery is to be calculated based on the amount of
acreage available for the Village Homestead, the Civil Parcel, or the
entire Homestead Area. We find that as amended, the first sentence at
CSR 38-2-7.5.l.4.A clearly provides that ``the nursery shall be 1 acre
per 30 acres of homestead village area.'' With the proposed change,
WVDEP has clarified that the acreage for Public Nursery is to be
calculated based on the amount of acreage available for the Village
Homestead. Therefore, we find that as amended CSR 38-2-7.5.l.4.A
satisfies part (2) of the required program amendment at 30 CFR
948.16(rrrrr), and it can be removed. See Finding 2.gg., above for our
finding on part (1) of 30 CFR 948.16(rrrrr). The amended language is
approved.
nn. CSR 38-2-7.5.o.2. This provision concerns revegetation success
standards for mountaintop removal mining operations with a Homestead
postmining land use during Phase II bond release. While the State's
proposed amendment listed the required amendment at 30 CFR
948.16(ooooo), it was not addressed in the State's initial submittal.
The requirement at 30 CFR 948.16(ooooo) provides in part that WVDEP
must consult with and obtain the approval of the West Virginia Division
of Forestry on the new stocking arrangements for Homestead at CSR 38-2-
7.5.o.2.
[[Page 10778]]
On August 23, 2005, the Division of Forestry submitted a memorandum
to WVDEP in support of the new stocking requirements for Homesteading
(Administrative Record Number WV-1428). Specifically, the Division of
Forestry agreed with the provisions at CSR 38-2-7.5.i.8, 7.5.l.4, and
7.5.o.2 regarding conservation easements, public nurseries, and
survival rates and ground cover requirements at the time of bond
release. Therefore, we find that the Division of Forestry's memorandum
dated August 23, 2005, satisfies the required program amendment
codified in the Federal regulations at 30 CFR 948.16(ooooo) and it can
be removed. We should note that the Wildlife Resources Section of the
Department of Natural Resources already submitted its approval letter.
oo. CSR 38-2-7.5.o.2. This provision concerns Phase II bond release
of mountaintop removal mining operations with a Homestead postmining
land use, and is amended by adding a proviso at the end of the existing
provision. As amended, CSR 38-2-7.5.o.2 provides as follows:
7.5.o.2. Phase II bond release may not occur before two years
have passed since Phase I bond release. Before approving Phase II
bond release, the Secretary shall assure that the vegetative cover
is still in place. The Secretary shall further assure that the tree
survival on the conservation easements and public nurseries are no
less than 300 trees per acre (80% of which must be species from the
approved list). Furthermore, in the conservation easement and public
nursery areas, there shall be a 70% ground cover where ground cover
includes tree canopy, shrub and herbaceous cover, and organic
litter. Trees and shrubs counted in considering success shall be
healthy and shall have been in place at least two years, and no
evidence of inappropriate dieback. Phase II bond release shall not
occur until the service drops for the utilities and communications
have been installed to each homestead parcel. Provided, however, the
applicable revegetation success standards for each phase of bond
release on Commercial Parcels, Village Parcels, Rural Parcels, Civic
Parcels and Common Lands shall be its corresponding revegetation
success standards specified in 9.3 of this rule.
In its submittal of this revision, the WVDEP stated that the
revision is intended to comply with the required program amendment
codified in the Federal regulations at 30 CFR 948.16 (ppppp). The
requirement at 30 CFR 948.16 (ppppp) provides that CSR 38-2-7.5.o.2 be
amended, or the West Virginia program otherwise be amended, to identify
the applicable revegetation success standards for each phase of bond
release on Commercial Parcels, Village Parcels, Rural Parcels, Civic
Parcels and Common Lands. With this amendment, the State has clarified
that the applicable revegetation standards for Commercial Parcels,
Village Parcels, Rural Parcels, Civic Parcels and Common Lands are
provided in the West Virginia regulations at CSR 38-2-9.3. Subsection
9.3 contains standards for evaluating vegetative cover. CSR 38-2-9.3.f
provides standards for postmining land uses that require legumes and
perennial grasses, such as hay land, pastureland, and rangeland. CSR
38-2-9.3.f.1 provides standards for postmining land uses to be
developed for industrial or residential uses. CSR 38-2-9.3.f.2 provides
standards for lands used for cropland. CSR 38-2-9.3.g provides
standards for lands used for forest and/or wildlife use. CSR 38-2-9.3.h
provides standards for commercial reforestation operations. We find
that as amended, CSR 38-2-7.5.o.2 satisfies the required program
amendment codified in the Federal regulations at 30 CFR 948.16(ppppp),
and it can be removed. The amended language is approved.
pp. CSR 38-2-9.3.d. Subsection 9.3 concerns the standards for
evaluating vegetative cover. Subsection 9.3.d is amended by deleting
the word ``determine'' in the first sentence, and adding in its place
the word ``verify.'' The existing second sentence concerning a
statistically valid sampling technique is deleted, and is replaced by a
new sentence that requires the operator to provide the Secretary of the
WVDEP with a vegetative evaluation using a statistically valid sampling
technique. As amended, Subsection 9.3.d provides as follows:
9.3.d. Not less than two (2) years following the last date of
augmented seeding, the Secretary shall conduct a vegetative
inspection to verify that applicable standards for vegetative
success have been met. The operator shall provide to the Secretary a
vegetative evaluation using a statistically valid sampling technique
with a ninety (90) percent statistical confidence interval. An
inspection report shall be filed for each inspection and when the
standard is met, the Secretary shall execute a Phase II bond
release.
The Federal regulations at 30 CFR 816.116 provide the standards for
success of revegetation. The Federal regulations at 816.116(a)(2)
provide that the sampling techniques for measuring success shall use a
90-percent statistical confidence interval (i.e., one-sided test with a
0.10 alpha error). Further, 30 CFR 816.116(a)(1) provides that the
standards for success and statistically valid sampling techniques for
measuring success shall be selected by the regulatory authority and
included in an approved regulatory program. Currently, a State bond
release specialist conducts the vegetative evaluation prior to bond
release. Under the revised rule, the operator will perform the
evaluation, and a State inspection will be conducted to verify the
results. The State's approved policy dated May 1, 2002, and entitled
``Productivity and Ground Cover Success Standards'' identifies the
statistically valid sampling techniques for measuring productivity and
ground cover within the State. Under the revised provisions, only these
approved sampling techniques can be used by an operator to evaluate or
by the State to verify revegetation success in conjunction with Phase
II and III bond release. As amended, the West Virginia provision
provides an alternative, yet as-effective version of the Federal
requirements.
Prior to the amendment, the WVDEP used a statistically valid
sampling technique with a ninety (90) percent statistical confidence
interval to evaluate the success of revegetation during its vegetative
evaluation inspection. The amended provision, however, appears to allow
the operator to select and use a statistically valid sampling technique
with a ninety (90) percent statistical confidence interval to confirm
revegetation success, while a WVDEP inspection will be made to verify
the operator's evaluation. The amendments to CSR 38-2-9.3.d appear to
increase the flexibility of which statistical sampling techniques may
be used to evaluate revegetation success while at the same time
continuing to maintain the standard that the selected standard must be
a statistically valid sampling technique with a ninety (90) percent
statistical confidence interval as is required by the Federal
regulations at 30 CFR 816.116(a)(2).
However, the Federal regulations at 30 CFR 816.116(a)(1) provide
that the statistically valid sampling technique must be selected by the
regulatory authority and included in an approved regulatory program. As
amended, CSR 38-2-9.3.d differs from 30 CFR 816.116(a)(1) in that the
State's provision appears to allow an operator to select and use a
statistically valid sampling technique with a ninety (90) percent
statistical confidence interval. Nevertheless, it is our understanding
that the sampling technique to be used to evaluate the success of
revegetation will be submitted by the operator to the WVDEP as part of
the revegetation plan required by CSR 38-2-9.2, and this understanding
is further supported by the fact that Subsection 9.3.e requires the use
of an approved sampling technique with a ninety (90) percent
statistical confidence interval. The State's requirements at CSR 38-2-
9.2
[[Page 10779]]
provide that a complete revegetation plan shall be made part of each
permit application. Therefore, it is our understanding that the
statistically valid sampling technique to be used must receive the
approval of the regulatory authority and it will be a part of the
approved permit application. We find that, as amended, CSR 38-2-9.3.d
is consistent with and no less effective than the Federal regulations
for measuring revegetation success at 30 CFR 816.116(a)(1) and can be
approved. Our approval of this provision is based upon our
understanding discussed above.
qq. CSR 38-2-9.3.e. Subsection 9.3.e concerns request of final bond
release, and is amended by adding the phrase ``which includes a final
vegetative evaluation using approved, statistically valid sampling
techniques'' to the end of the first sentence. In addition, the words
``inspection to verify the'' are added to the second sentence,
immediately following the phrase ``the Secretary shall conduct.''
Finally, the words ``using approved, statistically valid sampling
techniques'' are deleted from the end of the second sentence. As
amended, Subsection 9.3.e provides as follows:
9.3.e. After five (5) growing seasons following the last
augmented seeding, planting, fertilization, revegetation, or other
work, the operator may request a final inspection and final bond
release which includes a final vegetative evaluation using approved,
statistically valid sampling techniques. Upon receipt of such
request, the Secretary shall conduct a [sic] inspection to verify
the final vegetative evaluation. A final report shall be filed and
if the applicable standards have been met, the Secretary shall
release the remainder of the bond. Ground cover, production, or
stocking shall be considered equal to the approved success standard
when they are not less than 90 (ninety) percent of the success
standard.
In its submittal of the amendment of this provision, the WVDEP
stated that the amendment is to make it clear that the operator will
provide the information to determine if the vegetation success standard
has been met. As we discussed above in Finding 2.pp., West Virginia
amended its regulations at CSR 38-2-9.3.d to require the operator to
select and use a statistically valid sampling technique with a ninety
(90) percent statistical confidence interval to confirm revegetation
success, while a WVDEP inspection will be made to verify the operator's
evaluation. Also as discussed above at Finding 2.pp., it is our
understanding that the statistically valid sampling technique with a
ninety (90) percent statistical confidence interval that is proposed by
the operator to be used to evaluate the success of revegetation will be
submitted to the WVDEP as part of the revegetation plan required by CSR
38-2-9.2. The State's requirements at CSR 38-2-9.2 provide that a
complete revegetation plan shall be made part of each permit
application. Therefore, the statistically valid sampling technique to
be used must receive the approval of the regulatory authority, and it
will be a part of the approved permit application. This understanding
is further supported by the fact that this subsection requires the use
of an approved sampling technique by the operator. We find that, as
amended, CSR 38-2-9.3.e is consistent with and no less effective than
the Federal regulations for measuring revegetation success at 30 CFR
816.116(a)(1) and can be approved. Our approval of this provision is
based upon our understanding discussed above.
rr. CSR 38-2-14.5.h. Subsection 14.5 concerns performance standards
for hydrologic balance. Subsection 14.5.h is amended by adding two new
sentences at the end of this provision relating to the waiver of water
supply replacement. As amended, Subsection 14.5.h provides as follows:
14.5.h. A waiver of water supply replacement granted by a
landowner as provided in subsection (b) of section 24 of the Act
shall apply only to underground mining operations, provided that a
waiver shall not exempt any operator from the responsibility of
maintaining water quality. Provided, however, the requirement for
replacement of an affected water supply that is needed for the land
use in existence at the time of contamination, diminution or
interruption or where the affected water supply is necessary to
achieve the post-mining land use shall not be waived. If the
affected water supply was not needed for the land use in existence
at the time of loss, contamination, or diminution, and if the supply
is not needed to achieve the postmining land use, replacement
requirements may be satisfied by demonstrating that a suitable
alternative water source is available and could feasibly be
developed. If the latter approach is selected, written concurrence
must be obtained from the water supply owner.
In its submittal of this revision, the WVDEP stated that the
revision is intended to comply with the required program amendment
codified in the Federal regulations at 30 CFR 948.16 (sss). The
requirement at 30 CFR 948.16 (sss) provides that CSR 38-2-14.5.h must
be amended, or the West Virginia program must otherwise be amended, to
require that, if the water supply is not needed for the existing or
postmining land use, such waiver can only be approved where it is
demonstrated that a suitable alternative water source is available and
could feasibly be developed. The proposed State revision clarifies that
the replacement of a water supply is required, unless consideration is
given to the effect on premining and postmining land uses. In addition,
the proposed revision clarifies that a waiver can only be approved
where it is demonstrated that a suitable alternative water source is
available and could feasibly be developed. We find that the new
language added to CSR 38-2-14.5.h is substantively identical to the
Federal definition of ``replacement of water supply,'' paragraph (b),
at 30 CFR 701.5 and can be approved. In addition, the new language
satisfies the required program amendment codified in the Federal
regulations at 30 CFR 948.16(sss), which can be removed.
ss. CSR 38-2-14.15.c.3. Subsection 14.15 concerns performance
standards for contemporaneous reclamation. Subsection 14.15.c.3 is
amended by deleting the reference to the ``National Environmental
Policy Act'' and adding in its place a reference to the ``Endangered
Species Act.''
In its submittal of the amendment to this provision, the WVDEP
stated that the amendment is to correct a wrong cross-reference. We did
not act on this provision in the December 3, 2002, Federal Register
notice (67 FR 71832). As explained in that notice, under SMCRA, the
issuance of a SMCRA permit by the State is not considered an action
under NEPA. In addition, individual States have no authority to require
compliance with NEPA and, therefore, the State's proposed reference to
NEPA has no effect on the West Virginia program. Because we did not
render a decision on the proposed language, it has not been part of the
approved State program. Under the proposed revision, the WVDEP
Secretary could allow operators to cut trees on areas larger than 30
acres when it is necessary to comply with the Endangered Species Act.
The State is trying to protect the Indiana bat and other endangered
plant and animal species by minimizing habitat loss at certain times of
the year, most notably during mating season. The proposed reference to
the Endangered Species Act is an attempt by the State to correct the
earlier problem. Therefore, we find that this amendment corrects the
erroneous reference to the ``National Environmental Policy Act'' and
can be approved.
tt. CSR 38-2-20.6.d. Section 20 concerns inspection and
enforcement. Subsection 20.6.d concerns Notice of Informal Assessment
Conference, and is amended by deleting the second sentence of this
provision. The deleted
[[Page 10780]]
sentence provided as follows: ``[p]rovided, however, the operator shall
forward the amount of proposed penalty assessment to the Secretary for
placement in an interest bearing escrow account.'' In its submittal,
WVDEP stated that the requirement to pre-pay the proposed civil penalty
assessment prior to informal conference caused confusion and did not
achieve the desired results. We find that the deletion of the
requirement to place the amount of proposed penalty assessment in an
interest bearing escrow account does not render the provision less
effective than the counterpart Federal regulations at 30 CFR 845.18
concerning assessment conference procedures. The regulations at 30 CFR
845.18 do not provide for the placement of the amount of proposed
penalty assessment in an interest bearing escrow account. Therefore, we
find that the revised State procedure at CSR 38-2-20.6.d is the same as
or similar to the Federal procedure at 30 CFR 845.18 and can be
approved.
uu. CSR 38-2-20.6.j. Subsection 20.6.j concerns escrow, and is
amended by deleting the words ``an informal conference or'' and adding
in their place the word ``a.'' As amended, CSR 38-2-20.6.j provides as
follows: ``Escrow. If a person requests a judicial review of a proposed
assessment, the proposed penalty assessment shall be held in escrow
until completion of the judicial review.''
In its submittal of this amendment, the WVDEP stated that the
requirement to pre-pay penalty prior to informal conference did not
achieve the desired results. WVDEP also stated that it has led to
confusion between agency and industry alike and, therefore, the agency
is deleting this requirement. We find that the deletion of the
requirement to place the amount of proposed civil penalty assessment in
an interest bearing escrow account prior to the informal conference
does not render the provision less effective than the counterpart
Federal regulations at 30 CFR 845.18 or 30 CFR 845.19. As discussed
above, the Federal regulations at 30 CFR 845.18, concerning assessment
conference procedures, do not require the placement of the amount of
proposed penalty assessment in an interest bearing escrow account. The
Federal regulations at 30 CFR 845.19 concern request for a hearing, and
provide that the person charged with the violation may contest the
proposed penalty assessment or reassessment by submitting a petition
and an amount equal to the proposed penalty for placement in an escrow
account. Therefore, we find that the revised State procedure at CSR 38-
2-20.6.j is the same as or similar to the Federal procedures at 30 CFR
845.18 and 30 CFR 845.19 and can be approved.
Amendments to CSR 199-1
a. CSR 199-1-2.36a. Section CSR 199-1-2 concerns definitions. New
Subsection 2.36a has been added to define the term ``Community or
Institutional Building.'' New Subsection 2.36a provides as follows:
2.36a. Community or Institutional Building means any structure,
other than a public building or an occupied dwelling, which is used
primarily for meetings, gatherings or functions of local civic
organizations or other community groups; functions as an
educational, cultural, historic, religious, scientific,
correctional, mental health or physical health care facility; or is
used for public services, including, but not limited to, water
supply, power generation or sewage treatment.
In its submittal of the amendment to this provision, the WVDEP
stated that the amendment further defines the definition, and the
information was taken from CSR 38-2, the State's Surface Mining
Reclamation Regulations. We find that this new definition is
substantively identical to the Federal definition of ``community or
institutional building'' at 30 CFR 761.5 and can be approved.
b. CSR 199-1-2.36b. New Subsection 2.36b has been added to define
the term ``Public Building.'' New Subsection 2.36b provides as follows:
2.36b. Public Building means any structure that is owned or
leased by a public agency or used primarily for public business or
meetings.
In its submittal of the amendment to this provision, the WVDEP
stated that the amendment further defines the definition, and the
information was taken from CSR 38-2, the State's Surface Mining
Reclamation Regulations. We find this new definition to be
substantively identical to the Federal definition of ``public
building'' at 30 CFR 761.5 and can be approved.
c. CSR 199-1-2.37. New Subsection 2.37 has been added to define the
term ``Structure.'' Existing Subsections 2.37, 2.38, and 2.39 have been
renumbered as Subsections 2.38, 2.39, and 2.40. New Subsection 2.37
provides as follows:
2.37 Structure means any man-made structures within or outside
the permit areas which include, but is not limited to: Dwellings,
outbuildings, commercial buildings, public buildings, community
buildings, institutional buildings, gas lines, water lines, towers,
airports, underground mines, tunnels and dams. The term does not
include structures built and/or utilized for the purpose of carrying
out the surface mining operation.
In its submittal of the amendment to this provision, the WVDEP
stated that the definition was taken from CSR 38-2, the State's Surface
Mining Reclamation Regulations. There is no Federal counterpart
definition to the State's new definition of ``structure.'' However, we
find that the new definition of ``structure'' is not inconsistent with
the Federal use of the term ``structure(s)'' in the Federal blasting
regulations at 30 CFR Parts 816/817 and can be approved.
d. CSR 199-1-3.3.b. Subsection 3.3 concerns public notice of
blasting operations, and has been amended by adding new Subsection
3.3.b to provide as follows:
3.3.b. Blasting Signs. The following signs and markers shall be
erected and maintained while blasting is being conducted:
3.3.b.1. Warning signs shall be conspicuously displayed at all
approaches to the blasting site, along haulageways and access roads
to the mining operation and at all entrances to the permit area. The
sign shall at a minimum be two feet by three feet (2' x 3') reading
``WARNING! Explosives in Use'' and explaining the blasting warning
and the all clear signals and the marking of blasting areas and
charged holes; and
3.3.b.2. Where blasting operations will be conducted within one
hundred (100) feet of the outside right-of-way of a public road,
signs reading ``Blasting Area'', shall be conspicuously placed along
the perimeter of the blasting area.
In its submittal of the amendment to this provision, the WVDEP
stated that the amendment adds information from CSR 38-2, the State's
Surface Mining Reclamation Regulations, relating to blasting signs.
This change is necessary because the State's Blasting Rule currently
lacks specific provisions regarding blasting signs. Such provisions are
only set forth in the State's Surface Mining Reclamation Regulations at
Subsection 14.1.e. We find that new CSR 199-1-3.3.b is substantively
identical to the Federal blasting provisions at 30 CFR 816/817.66(a)(1)
and (2) concerning blasting signs, warnings, and access control and can
be approved.
e. CSR 199-1-3.7. Subsection 3.7.a concerns blasting control for
other structures, and has been amended by deleting the words ``in
subsection 2.35 of this rule'' in the first sentence.
In its submittal of the amendment to this provision, the WVDEP
stated that the amendment eliminates an incorrect reference to the
definition of ``Protected Structure.'' The definition of ``Protected
Structure'' is located at CSR 199-1-2.36. With this change, these
provisions still provide for the protection of protected structures and
other structures. We find that the deletion of the incorrect
[[Page 10781]]
reference number does not render the provision less effective than the
Federal blasting provisions at 30 CFR 816/817.67, concerning the
control of the adverse effects of blasting, and can be approved.
f. CSR 199-1-4.8. Subsection 4.8 concerns violations by a certified
blaster, and has been amended by deleting the words ``director shall''
and replacing those words with the words ``Secretary may.'' In
addition, the words ``written notification'' are added immediately
after the word ``issue.'' The phrase ``or revoke the certification of''
is added immediately after the phrase ``a temporary suspension order,''
and the word ``against'' has been deleted. As amended, the paragraph at
Subsection 4.8 provides as follows:
4.8. Violations by a Certified Blaster.--The Secretary may issue
written notification, a temporary suspension order, or revoke the
certification of a certified blaster who is, based on clear and
convincing evidence, in violation of any of the following:
With these changes, the Secretary may issue written notification, a
temporary suspension order, or revoke the certification of a certified
blaster who is, based on clear and convincing evidence, in violation of
the provisions listed at CSR 199-1-4.8.a through 4.8.e. We find that
CSR 199-1-4.8, as revised, is consistent with the Federal regulations
at 30 CFR 850.15(b), concerning suspension and revocation of blaster
certification, and can be approved.
g. CSR 199-1-4.8.c. Subsection 4.8.c has been amended by deleting
the words ``[s]ubstantial or significant'' which modify the word
``violations'' at the beginning of the first sentence, and by
capitalizing the word ``federal'' in the first sentence. In a Federal
Register notice dated December 10, 2003 (68 FR 68724, 68733), OSM
approved CSR 199-1-4.8.c, except for the words ``substantial or
significant,'' which were not approved. In this amendment, the State
has deleted words ``substantial or significant.'' Therefore, any
violations of Federal or State laws or regulations relating to
explosives by a certified blaster could require disciplinary action. We
find that, as amended, CSR 199-1-4.8.c is consistent with and no less
effective than the Federal regulations at 30 CFR 850.15(b)(1)(iii),
concerning violations of State or Federal explosives laws or
regulations, and can be approved.
h. CSR 199-1-4.8.f and 4.8.g. Subsections 4.8.f and 4.8.g are added
and provide as follows:
4.8.f. A pattern of conduct which is not consistent with
acceptance of responsibility for blasting operations, i.e., repeated
violations of state or federal laws pertaining to explosives; or
4.8.g. Willful Conduct--The Secretary shall suspend or revoke
the certification of a blaster for willful violations of State or
Federal laws pertaining to explosive.
In its submittal of the amendment to this provision, the WVDEP
stated that the amendment was made because the wording was not
consistent with previously approved rule 22-4-6.01, according to OSM.
In addition, the WVDEP stated that this subsection has been reorganized
and renumbered for clarity reasons, as required by the Council of Joint
Rulemaking. These revisions are in response to a finding made by OSM as
published in the Federal Register on December 10, 2003 (68 FR at 68733-
68734). There is no direct Federal counterpart to the new language at
CSR 199-1-4.8.f. However, we find that the new language at CSR 199-1-
4.8.f is consistent with the Federal requirements concerning suspension
or revocation of blaster certification at 30 CFR 850.15(b) and with the
requirements concerning practical experience of blasters that is needed
for certification at 30 CFR 850.14(a)(2). Therefore, we find that new
CSR 199-1-4.8.f can be approved.
We find that new CSR 199-1-4.8.g is consistent with and no less
effective than the Federal regulations at 30 CFR 850.15(b)(1), which
provide that a certification shall be suspended or revoked upon a
finding of willful conduct, and can be approved. In addition, we find
that new CSR 199-1-4.8.g satisfies the required program amendment
codified in the Federal regulations at 30 CFR 948.16(a). The required
amendment at 30 CFR 948.16(a) requires that the State must amend CSR
199-1-4.9.a and 4.9.b, or must otherwise amend the West Virginia
program, to provide that upon finding of willful conduct, the Secretary
shall revoke or suspend a blaster's certification. The required
amendment can, therefore, be removed.
i. CSR 199-1-4.9. Subsection 4.9 concerns penalties, and has been
amended, reorganized and renumbered. A new title, ``Suspension and
Revocation'' has been added at Subsection 4.9.a. Existing Subsection
4.9.a. has been renumbered as 4.9.a.1 and 4.9.a.2. Existing Subsection
4.9.b has been renumbered as 4.9.a.3 and the reference to Subsection
12.1 deleted. New Subsection 4.9.a.4 has been added.
Existing Subsections 4.9.c and 4.9.d have been renumbered as 4.10
and 4.11, respectively. Finally, existing Subsections 4.10, 4.11, and
4.12 have been renumbered as Subsections 4.12, 4.13, and 4.14,
respectively. As amended, Subsections 4.9, and 4.10 through 4.14
provide as follows:
4.9. Penalties.
4.9.a. Suspension and Revocation.
4.9.a.1. Suspension.--Upon service of a temporary suspension
order, the certified blaster shall be granted a hearing before the
Secretary to show cause why his or her certification should not be
suspended or revoked.
4.9.a.2. The period of suspension will be conditioned on the
severity of the violation committed by the certified blaster and, if
the violation can be abated, the time period in which the violation
is abated. The Secretary may require remedial actions and measures
and re-training and re-examination as a condition for re-instatement
of certification.
4.9.a.3. Revocation.--If the remedial action required to abate a
suspension order, issued by the Secretary to a certified blaster, or
any other action required at a hearing on the suspension of a
blaster's certification, is not taken within the specified time
period for abatement, the Secretary may revoke the blaster's
certification and require the blaster to relinquish his or her
certification card. Revocation will occur if the certified blaster
fails to re-train or fails to take and pass reexamination as a
requirement for remedial action.
4.9.a.4. In addition to suspending or revoking the certification
of a blaster, failure to comply with the requirements of this
subsection may also result in further suspension or revocation of a
blaster's certification.
4.10. Reinstatement--Subject to the discretion of the Secretary,
and based on a petition for reinstatement, any person whose blaster
certification has been revoked, may, if the Secretary is satisfied
that the petitioner will comply with all blasting law and rules,
apply to re-take the blasters certification examination, provided
the person meets all of the requirements for blasters certification
specified by this subsection, and has completed all requirements of
the suspension and revocation orders, including the time period of
the suspension.
4.11. Civil and Criminal Penalties.--Every certified blaster is
subject to the individual civil and criminal penalties provided for
in W. Va. Code Sec. 22-3-17.
4.12. Hearings and Appeals.--Any certified blaster who is served
a suspension order, revocation order, or civil and criminal
sanctions is entitled to the rights of hearings and appeals as
provided for in W. Va. Code Sec. Sec. 22-3-16 and 17.
4.13. Blasting Crew.--Persons who are not certified and who are
assigned to a blasting crew, or assist in the use of explosives,
shall receive directions and on-the-job training from a certified
blaster.
4.14. Reciprocity With Other States.--The Secretary may enter
into a reciprocal agreement with other states wherein persons
holding a valid certification in that state may apply for
certification in West Virginia, and upon approval by the Secretary,
be certified without undergoing the training or examination
requirements set forth in this rule.
In its submittal of the amendments to this provision, the WVDEP
stated that
[[Page 10782]]
the amendments provide clarification and remove an incorrect reference.
In addition, the WVDEP stated that Subsection 4.9 has been reorganized
and renumbered for clarity reasons, as required by the Council of Joint
Rulemaking. The deletion of the reference at re-numbered Subsection
4.9.a.3 eliminates an incorrect reference and improves the clarity of
the provision. We find that the amendment to re-numbered Subsection
4.9.a.3 does not render this provision inconsistent with the Federal
blasting requirements at 30 CFR 850.15(b) and can be approved.
We find that the new language at Subsection 4.9.a.4, concerning
further suspension or revocation of a blasters certification upon
failure to comply with the provisions of CSR 199-1-4.9, is not
inconsistent with the Federal suspension and revocation provisions at
30 CFR 850.15(b) and can be approved.
As mentioned, the other changes listed above at Subsections 4.10
through 4.14 resulted from the renumbering of Subsections 4.9 through
4.12. The revisions are non-substantive changes that relate primarily
to the reorganization of this section.
3. Committee Substitute for House Bill 3033
WV Code 22-3-11 has been amended by adding new Subdivision 22-3-
11(h)(2)(B) to provide as follows:
(2) In managing the Special Reclamation Program, the Secretary
shall:
* * * * *
(B) Conduct formal actuarial studies every two years and conduct
informal reviews annually on the Special Reclamation Fund.
On May 29, 2002 (67 FR 37610), OSM approved amendments to the West
Virginia program that satisfied a required program amendment which
required the State to eliminate the deficit in the State's alternative
bonding system, commonly referred to as the Special Reclamation Fund
(Fund), and to ensure that sufficient money will be available to
complete reclamation, including the treatment of polluted water, at all
existing and future bond forfeiture sites (Administrative Record Number
WV-1308). An important component of OSM's approval of that amendment
was the fact that West Virginia had previously established, at W. Va.
Code 22-1-17, the Special Reclamation Fund Advisory Council (Advisory
Council) to oversee the State's alternative bonding system (see OSM's
approval in the December 28, 2001, Federal Register notice, 66 FR
67446).
One of the duties of the Advisory Council is to study the
effectiveness, efficiency and financial stability of the Special
Reclamation Fund. Another duty of the Advisory Council, as provided by
W. Va. Code 22-1-17(f)(5), is to contract with a qualified actuary to
determine the Fund's fiscal soundness. The first actuarial study was
required to be completed by December 31, 2004. Additional actuarial
studies must be completed every four years thereafter.
In the proposed amendment at WV Code 22-3-11, West Virginia has
added language at Subdivision 22-3-11(h)(2)(B) that requires the
Secretary of the WVDEP to conduct actuarial studies every two years and
to conduct annual informal reviews of the Special Reclamation Fund. As
drafted, it appears that the actuarial studies required under new
Subdivision 22-3-11(h)(2)(B) will be in addition to those performed
under contract of the Advisory Council, because the State has not
submitted any amendment to the statutory requirements of the Advisory
Council at W. Va. Code 22-1-17. However, State officials acknowledge
that the actuarial studies to be conducted under Subdivision 22-3-
11(h)(2)(B) are to be done in lieu of those required under Subdivision
22-1-17(f)(5). The State intends to submit an amendment in the future
that will correct this oversight. Nevertheless, we still find that the
new requirement at Subdivision 22-3-11(h)(2)(B) is consistent with the
bases of our previous approvals of State program amendments regarding
the financial stability of the State's Special Reclamation Fund. The
bi-annual actuarial studies and the annual, informal financial reviews
of the Special Reclamation Fund should assist the WVDEP and the State
in ensuring that sufficient money will be available to complete land
reclamation and water treatment at existing and future bond forfeiture
sites within the State, a requirement that parallels the criterion for
approval of a State's alternative bonding system under 30 CFR
800.11(e)(1). Therefore, we are approving the amendment to Subdivision
22-3-11(h)(2)(B) of the W. Va. Code regarding the State's Special
Reclamation Fund.
4. House Bill 3236
This Bill amended the W. Va. Code by adding new Section 22-3-11a
and new Section 22-3-32a to provide as follows:
22-3-11a. Special reclamation tax; clarification of imposition
of tax; procedures for collection and administration of tax;
application of Tax Procedure and Administration Act and Tax Crimes
and Penalties Act.
(a) It is the intent of the Legislature to clarify that from the
date of its enactment, the special reclamation tax imposed pursuant
to the provisions of section eleven of this article is intended to
be in addition to any other taxes imposed on persons conducting coal
surface mining operations including, but not limited to the tax
imposed by section thirty-two of this article, the tax imposed by
article twelve-b, chapter eleven of this code, the taxes imposed by
article thirteen-a of said chapter and the tax imposed by article
thirteen-v of said chapter.
(b) Notwithstanding any other provisions of section eleven of
this article to the contrary, under no circumstance shall an
exemption from the taxes imposed by article twelve-b, thirteen-a or
thirteen-v, chapter eleven of this code be construed to be an
exemption from the tax imposed by section eleven of this article.
(c) When coal included in the measure of the tax imposed by
section eleven of this article is exempt from the tax imposed by
article twelve-b, chapter eleven of this code, the tax imposed by
section eleven of this article shall be paid to the tax commissioner
in accordance with the provisions of sections four through fourteen,
inclusive, article twelve-b, chapter eleven of this code, which
provisions are hereby incorporated by reference in this article.
(d) General procedure and administration.--Each and every
provision of the ``West Virginia Tax Procedure and Administration
Act'' set forth in article ten, chapter eleven of the code applies
to the special tax imposed by section eleven of this article with
like effect as if such act were applicable only to the special tax
imposed by said section eleven and were set forth in extenso in this
article, notwithstanding the provisions of section three of said
article ten.
(e) Tax crimes and penalties.--Each and every provision of the
``West Virginia Tax Crimes and Penalties Act'' set forth in article
nine of said chapter eleven applies to the special tax imposed by
section eleven of this article with like effect as if such act were
applicable only to the special tax imposed by said section eleven
and set forth in extenso in this article, notwithstanding the
provisions of section two of said article nine.
22-3-32a. Special tax on coal; clarification of imposition of
tax; procedures for collection and administration of tax.
(a) It is the intent of the Legislature to clarify that from the
date of its enactment, the special tax on coal imposed pursuant to
the provisions of section thirty-two of this article is intended to
be in addition to any other taxes imposed on every person in this
state engaging in the privilege of severing, extracting, reducing to
possession or producing coal for sale profit or commercial use
including, but not limited to the tax imposed by section eleven of
this article, the tax imposed by article twelve-b, chapter eleven of
this code, the taxes imposed by article thirteen-a of said chapter
and the tax imposed by article thirteen-v of said chapter.
(b) Notwithstanding any other provisions of section thirty-two
of this article to the contrary, under no circumstance shall an
exemption from the taxes imposed by article twelve-b, thirteen-a or
thirteen-v, chapter
[[Page 10783]]
eleven of this code be construed to be an exemption from the tax
imposed by section thirty-two of this article.
(c) When coal included in the measure of the tax imposed by
section thirty-two of this article is exempt from the tax imposed by
article twelve-b, chapter eleven of this code, the tax imposed by
section thirty-two of this article shall be paid to the tax
commissioner in accordance with the provisions of sections four
through fourteen, inclusive, article twelve-b, chapter eleven of
this code, which provisions are hereby incorporated by reference in
this article.
The HB 3236 provides for two new sections of the West Virginia
Code, designated Sections 22-3-11a and 22-3-32a. These new provisions
relate to the special reclamation tax (at W. Va. Code 22-3-11), which
provides revenue to the State's Special Reclamation Fund, and the
special tax on coal (at W. Va. Code 22-3-32), which is used to
administer the State's approved regulatory program. The preamble to HB
3236 states that the new provisions are intended to clarify that both
of these taxes apply to the production of thin seam coal and provide
for payment thereof. Thus, this change will result in additional
revenue for the reclamation of bond forfeiture sites and for program
support. The HB 3236 also provides that the special reclamation tax is
subject to the West Virginia Tax Crimes and Penalties Act and the West
Virginia Tax Procedure and Administration Act.
While there is no direct Federal counterpart to the clarifications
provided at new W. Va. Code 22-3-11a, we find that the provision is not
inconsistent with SMCRA section 509(b) and 30 CFR 800.11(e), which
provide that an alternative bonding system must have available
sufficient revenue to complete all reclamation obligations at any given
time. The proposed revision will enable the State to meet its bond
forfeiture reclamation obligations under the Special Reclamation Fund.
Therefore, we find that new W. Va. Code 22-3-11a is not inconsistent
with the aforementioned Federal requirements and can be approved.
Further, there is no direct Federal counterpart to the
clarifications provided at new W. Va. Code 22-3-32a. However, section
503(a)(3) of SMCRA, concerning State program approval, provides that a
State regulatory authority must have, among other things, sufficient
funding to enable the State to regulate surface coal mining and
reclamation operations in accordance with the requirements of SMCRA. We
find that the revisions provided at new W. Va. Code 22-3-32a are not
inconsistent with SMCRA section 503(a)(3) and can be approved.
5. CSR 38-2-14.14.g.2.A.6 Removal of Erosion Protection Zone (EPZ)
This amendment consists of information provided by the WVDEP,
including a draft memorandum, to support its assertion that OSM should
reverse its previous disapproval of language concerning EPZ at CSR 38-
2-14.14.g.2.A.6. In its submittal concerning this provision, the WVDEP
stated that in a letter to OSM dated March 8, 2005 (the letter's date
was March 9, 2005, Administrative Record Number WV-1418), the State had
explained its position on EPZ and the circumstances when the EPZ could
be left in place as a permanent structure. The WVDEP's March 9, 2005,
letter was in response to OSM's disapproval of language concerning EPZ
at CSR 38-2-14.14.g.2.A.6 that was part of a proposed amendment
submitted to OSM by letter dated March 18, 2003 (Administrative Record
Number WV-1352). The language was not approved, WVDEP stated, based on
the lack of U.S. Environmental Protection Agency (EPA) concurrence with
the State's proposed language. Background information on OSM's previous
disapproval of language concerning EPZ at CSR 38-2-14.14.g.2.A.6 is
presented below.
Under the Federal regulations at 30 CFR 732.17(h)(11)(ii), OSM is
required to obtain written concurrence from EPA for proposed provisions
of a State program amendment that relate to air or water quality
standards issued under the authority of the Clean Water Act (33 U.S.C.
1251 et seq.) or the Clean Air Act (42 U.S.C. 7401 et seq.). On April
1, 2003, we asked EPA for concurrence and comments on the proposed
amendments that were submitted to OSM by letter dated March 18, 2003
(Administrative Record Number WV-1355).
The EPA responded by letter dated June 13, 2003, (Administrative
Record Number WV-1363). The EPA stated that it reviewed the proposed
revisions and had concerns about the requirement of EPZ associated with
single-lift valley fills at CSR 38-2-14.14.g.1 (Durable Rock Fills).
OSM published its decision on a proposed West Virginia program
amendment that addressed, in part, the addition of new language
concerning EPZ related to durable rock fills on July 7, 2003 (see 68 FR
40157, finding 19, pages 40161 and 40162). In that finding, OSM did not
approve language at CSR 38-2-14.14.g.2.A.6 that would have allowed the
permanent retention of EPZ if approval were granted in the reclamation
plan. In particular, OSM did not approve the words ``Unless otherwise
approved in the reclamation plan'' because approval would have been
inconsistent with EPA's conditional concurrence to remove fill material
associated with EPZs from streams and to reconstruct the stream
channels after mining.
The EPA stated that it understands that an EPZ is a buffer zone
between the toe of a single lift valley fill and its downstream
sedimentation pond. It consists of a wide and low fill, revegetated to
dissipate runoff energy from the valley fill face and prevent pond
overloading during severe storm periods. The EPA stated that a single
lift fill is particularly subject to erosion, since it is constructed
in a downstream direction toward the pond with no reclamation or
revegetation of the fill face until completion of mining.
The EPA stated that it was concerned that EPZs may result in
permanent stream fills after completion of mining. According to CSR 38-
2-14.14.g.2.A.1, the EPA stated, a 250-foot long EPZ would be required
for a 500-foot high valley fill, which, EPA stated, is not unusual in
southern West Virginia. Although Section 14.14.g.2.A.6 requires EPZ
removal, regrading, and revegetating after mining, EPA stated, it does
not appear to include the removal of the stream fill associated with
the EPZ or reconstruction of the stream channel. An alternative valley
fill design, which appears more environmentally acceptable, EPA stated,
is also indicated in Section 14.14.g.1 and further described in Section
14.14.g.3. The EPA stated that this involves starting valley fill
construction from the toe and proceeding upstream in multiple lifts
(layers) of 100 feet or less in thickness. The EPA stated that the face
of each lift would be reclaimed and revegetated before starting the
next lift. The toe of the first lift would be at the sedimentation
pond, the EPA stated, and an EPZ would not be necessary due to better
erosion control features.
The EPA stated that it concurred with the proposed revisions
submitted by the State on March 18, 2003, under the condition that a
requirement be included to remove stream fills associated with EPZs
after mining and reconstruct the stream channels. The EPA stated that
it should also be noted that stream filling during EPZ construction
requires authorization under section 404 of the Clean Water Act,
administered by the U.S. Army Corps of Engineers. Considering the high
erosion potential of single-lift valley fills, the EPA stated, it (EPA)
recommends that the single lift method be replaced by the more
environmentally favorable approach of
[[Page 10784]]
starting at the toe and proceeding upwards in multiple lifts. The EPA
stated that it will likely make this recommendation for any proposed
single lift fill coming before it for section 404 review.
In response to EPA's conditional concurrence, OSM did not approve
the words ``Unless otherwise approved in the reclamation plan'' at CSR
38-2-14.14.g.2.A.6 because leaving an EPZ in place would be
inconsistent with EPA's conditional concurrence to remove stream fills
associated with EPZs and to reconstruct the stream channels after
mining (see the July 7, 2003, Federal Register, Finding 19, pages 40161
and 40162). In addition, OSM approved CSR 38-2-14.14.g.2.A.6 only to
the extent that following mining, all stream fills associated with EPZs
will be removed and the stream channels shall be reconstructed.
In its June 13, 2005, submittal letter, the WVDEP requested that
OSM reconsider its decision to disapprove certain language at CSR 38-2-
14.14.g.2.A.6 (Administrative Record Number WV-1421). In support of its
request, the WVDEP stated that following the submittal of its March 9,
2005, letter, discussion ensued among representatives of WVDEP, EPA,
and OSM. The WVDEP stated that EPA expressed concern that the EPZ rule
did not reference section 404 of the Clean Water Act and that it wasn't
clear that the operator had to demonstrate leaving the EPZ would
provide benefits to or protection to the environment and/or the public.
The WVDEP stated that it reiterated that the present wording of the
State rule requires removal and/or reclamation of EPZ areas and
restoration of the stream, unless otherwise approved by the reclamation
plan. The WVDEP further stated that the circumstances under which such
areas could become permanent would be at the discretion of WVDEP, with
a demonstration by the applicant to the satisfaction of the Secretary
of the WVDEP that the environment/public benefits outweigh any
anticipated impacts.
The WVDEP also stated that in addition to the mining requirements
imposed by WVDEP, such construction is subject to provisions of section
404 of the Clean Water Act and under the ultimate jurisdiction of the
U.S. Army Corps of Engineers and EPA. The WVDEP also submitted a draft
memorandum to its staff for OSM's consideration in support of its
request that OSM reconsider its previous decision on the EPZ provision
at CSR 38-2-14.14.g.2.A.6. The draft memorandum submitted by the WVDEP
is quoted below:
Interoffice Memorandum
To: All DMR Employees.
From: Randy Huffman, Director.
Date:
Subject: Durable rock fills with erosion protection zone.
38-2-14.14.g.2.A.6 requires removal and reclamation of erosion
protection zone, and restoration of the stream and does provide that
erosion protection zone may become permanent structure approved in
the reclamation plan. It states:
``Unless otherwise approved in the reclamation plan, the erosion
protection zone shall be removed and the area upon which it was
located shall be reg[ra]ded and revegetated in accordance with the
reclamation plan.''
For an erosion protection zone to become a permanent structure,
the applicant must provide a demonstration to the satisfaction of
the Secretary that leaving the erosion protection zone provides
benefits to or protection to the environment and/or public. Such
benefits or protection include, but are not limited to; runoff
attenuation, wildlife and wetland enhancement, and stream scour
protection. This approval will be contingent upon the applicant
obtaining all other necessary permits and/or approvals.
On November 22, 2005, EPA acknowledged that since it provided its
conditional concurrence on June 13, 2003, discussions with WVDEP and
OSM provided it additional information which lessened its concern about
EPZs (Administrative Record Number WV-1449). EPA further stated that it
was emphasized that EPZs would be left in place only where
environmental/public benefits would outweigh any anticipated impacts
and that EPZ construction would be subject to CWA section 404 under the
jurisdiction of the U.S. Army Corps of Engineers and EPA. EPA concluded
that these requirements were reiterated in the State's submission to
OSM. With this understanding, EPA agreed to remove its condition for
concurrence with CSR 38-2-14.14.g.2.A.6. Therefore, we are approving
the provision at CSR 38-2-14.14.g.2.A.6 which provides, ``Unless
otherwise approved in the reclamation plan,'' and we find that the
disapproval, which is codified at 30 CFR 948.12(g), has been fully
resolved.
6. State Water Rights and Replacement Policy
WVDEP submitted a policy dated August 1995 regarding water rights
and replacement (Administrative Record Number WV-1425). As noted in the
policy, its purpose is to define the time periods for providing
temporary and permanent water replacement. This policy is to supplement
the proposed regulatory revisions that the State made at CSR 38-2-
14.5(h). The policy is in response to our Part 732 notification dated
June 7, 1996, regarding subsidence and water replacement
(Administrative Record Number WV-1037(a)). The Federal regulations at
30 CFR 817.41(j) require prompt replacement of a residential water
supply that is contaminated, diminished, or interrupted by underground
mining activities conducted after October 24, 1992. We advised WVDEP
that its program lacked guidance concerning timing of water supply
replacement. A proposed statutory revision that was intended to address
this issue failed to pass the Legislature. The policy is intended to
satisfy the Federal requirement by setting forth the time periods
within the State program for providing temporary and permanent water
replacement. The policy provides as follows:
WV Division of Environmental Protection
Office of Mining and Reclamation
Inspection and Enforcement
Series: 14
Pg. No: 1 of 1
Revised: 8-95
Subject: Water Rights and Replacement.
1. Purpose: Define time periods as they relate to water rights
and replacement.
2. Definitions:
3. Legal Authority: 22-3-24
4. Policy/Procedures: Upon receipt of notification that a water
supply was adversely affected by mining, the permittee shall provide
drinking water to the user within twenty-four (24) hours.
Within seventy two (72) hours, the permittee shall have the user
hooked up to a temporary water supply. The temporary supply shall be
hooked up to existing plumbing, if any, to allow the user to conduct
all normal activities associated with domestic water use. This
includes drinking, cooking, bathing, washing, non commercial
farming, and gardening.
Within thirty (30) days of notification, the permittee shall
begin activities to establish a permanent water supply or submit a
proposal to the WVDEP outlining the measures and timetables to be
utilized in establishing a permanent supply. The total elapsed time
from notification to permanent supply hook-up cannot exceed two (2)
years.
The permittee is responsible for payment of operation and
maintenance costs on a replacement water supply in excess of
reasonable and customary delivery costs that the user incurred.
Upon agreement by the permittee and the user (owner), the
obligation to pay such operation and maintenance costs may be
satisfied by a one-time lump sum amount agreed to by the permittee
and the water supply user (owner).
The Federal provision at 30 CFR 817.41(j) was approved on March 31,
1995 (60 FR 16722, 16749). In the preamble to that approval, OSM
provided the following guidance
[[Page 10785]]
concerning the meaning of the term ``prompt replacement'' that was
intended to assist regulatory authorities in deciding if water supplies
have been ``promptly'' replaced:
OSM believes that prompt replacement should typically provide:
emergency replacement, temporary replacement, and permanent
replacement of a water supply. Upon notification that a user's water
supply was adversely impacted by mining, the permittee should
reasonably provide drinking water to the user within 48 hours of
such notification. Within two weeks of notification, the permittee
should have the user hooked up to a temporary water supply. The
temporary water supply should be connected to the existing plumbing,
if any, and allow the user to conduct all normal domestic usage such
as drinking, cooking, bathing, and washing. Within two years of
notification, the permittee should connect the user to a
satisfactory permanent water supply.
We find that West Virginia's Water Rights and Replacement Policy
dated August 1995 is consistent with the Federal guidelines concerning
the ``prompt replacement'' of water supply quoted above. The State
policy provides for emergency, temporary, and permanent replacement of
a water supply as does the Federal guidance. The State's policy also
provides reasonable timeframes for replacement that are consistent with
the Federal guidance. We find that the provision of the State's policy
which provides that the permittee is responsible for payment of
operation and maintenance costs on a replacement water supply in excess
of reasonable and customary delivery costs that the user incurred is
consistent with the Federal definition of ``replacement of water
supply'' at 30 CFR 701.5. We also find that the State's policy
provision which provides that upon agreement by the permittee and the
user (owner), the obligation to pay such operation and maintenance
costs may be satisfied by a one-time lump sum amount agreed to by the
permittee and the water supply user (owner) is consistent with the
Federal definition of ``replacement of water supply'' at 30 CFR 701.5,
Subsection (a). Therefore, we find that the State's Water Rights and
Replacement Policy is consistent with the Federal regulations at 30 CFR
817.41(j) concerning the prompt replacement of water supply, and it can
be approved.
7. Bond Release Certification
The State submitted the Permittee's Request for Release Form dated
March 2005 (Administrative Record Number WV-1424). The form was being
submitted in response to our Part 732 notification dated July 22, 1997
(Administrative Record Number WV-1071). In that letter, we advised the
State that the Federal regulations at 30 CFR 800.40(a)(3) were amended
to require that each application for bond release must include a
written, notarized statement by the permittee affirming that all
applicable reclamation requirements specified in the permit have been
completed. We notified WVDEP that the State regulations at CSR 38-2-
12.2 did not contain such a requirement. In response, the State revised
its bond release form by adding new item Number 11, which requires that
all copies of the Permittee's Request For Release Form include the
following: ``11. A notarized statement by the permittee that all
applicable reclamation requirements specified in the permit have been
completed.'' Therefore, we find that, with the addition, the revised
State form dated March 2005 is consistent with the Federal regulations
at 30 CFR 800.40(a)(3), and it can be approved.
IV. Summary and Disposition of Comments
Public Comments
On August 26, 2005, we published a Federal Register notice and
asked for public comments on the amendment (Administrative Record
Number WV-1429). In addition, on September 9, 2005, we solicited
comments from various interest groups within the State on the proposed
amendment (Administrative Record Number WV-1433). At the request of the
West Virginia Coal Association (WVCA), the comment period was extended
for five days and closed on September 30, 2005 (Administrative Record
Number WV-1437). We received comments from the WVCA (Administrative
Record Number WV-1445).
1. House Bill 3033. The WVCA requested that OSM suspend further
review and approval of the provisions that OSM cited in the proposed
rule notice published on August 26, 2005. The WVCA stated that OSM's
review of the amendment at W. Va. Code 22-3-11(h)(2)(A) and 22-3-
11(h)(2)(B) is inappropriate, because the changes do not present
substantive changes to the West Virginia regulatory program. As we
stated above at ``Section II. Submission of the Amendment'', we have
determined that the amendment to W. Va. Code 22-3-11(h)(2)(A) is non-
substantive and, therefore, does not require OSM's approval. Therefore,
we are not addressing WVCA's comments regarding W. Va. Code 22-3-
11(h)(2)(A).
The WVCA asserted that OSM's decision to review and approve
language at W. Va. Code 22-3-11(H)(2)(B) is inappropriate for the same
reasons that OSM stated that it would not review other provisions at W.
Va. Code 22-3-11:
These new provisions only direct the Secretary of WVDEP to
conduct various studies and authorize the Secretary of WVDEP to
propose legislative rules as appropriate. These provisions do not
modify any duties or functions under the approved West Virginia
program and do not, therefore, require OSM's approval.
The WVCA further stated that while the amendment does modify the
duties and functions of the Secretary of WVDEP, it requires only
studies and informal review. The WVCA asserted that these studies and
reviews do not represent substantive changes to the approved West
Virginia program. Such review and approval, the WVCA asserted,
``equates to federal interference into the inter-workings of the
approved state program.''
We disagree. As we discussed above at Finding 3, on May 29, 2002
(67 FR 37610), OSM approved amendments to the West Virginia program
that satisfied a required program amendment which required the State to
eliminate the deficit in the State's alternative bonding system (ABS)
and to ensure that sufficient money will be available to complete
reclamation, including the treatment of polluted water, at all existing
and future bond forfeiture sites (Administrative Record Number WV-
1308). An important component of OSM's approval of that amendment was
the fact that West Virginia had previously established, at W. Va. Code
22-1-17, the Special Reclamation Fund Advisory Council (Advisory
Council) to oversee the State's ABS (see OSM's approval in the December
28, 2001, Federal Register notice at 66 FR 67446). One of the duties of
the Advisory Council is to study the effectiveness, efficiency and
financial stability of the Special Reclamation Fund. Another duty of
the Advisory Council, as provided by W. Va. Code 22-1-17(f)(5), is to
contract with a qualified actuary to determine the Fund's fiscal
soundness. Following the initial actuarial study, additional studies
are to be conducted every four years.
As drafted, it appears that the actuarial studies required under
new Subdivision 22-3-11(h)(2)(B) will be in addition to those performed
under contract of the Advisory Council, because the State has not
submitted any amendment to the statutory requirements of the Advisory
Council at W. Va. Code 22-1-17. However, State officials acknowledge
that the actuarial studies to be conducted under
[[Page 10786]]
Subdivision 22-3-11(h)(2)(B) are to be done in lieu of those required
under Subdivision 22-1-17(f)(5). The State intends to submit an
amendment in the future that will correct this oversight. Consequently,
the amendment at Subdivision 22-3-11(h)(2)(B) appears to represent a
significant and substantive change that may greatly assist the WVDEP in
assessing the financial stability of the State's ABS.
At Finding 3 above, we found that the new requirements at
Subdivision 22-3-11(h)(2)(B) are consistent with the bases of our
previous approvals of State program amendments regarding the financial
stability of the State's Special Reclamation Fund. The bi-annual
actuarial studies and the annual informal reviews of the Special
Reclamation Fund should assist the State in ensuring that sufficient
money will be available to complete land reclamation and water
treatment at existing and future bond forfeiture sites within the
State, a requirement that parallels the criterion for approval of a
State's alternative bonding system under 30 CFR 800.11(e)(1).
2. Revisions to CSR 38-2-7.5.j.3.B. This provision concerns the
recovery and use of soil, and the State is deleting language that
provides as follows:
* * * except for those areas with a slope of at least 50%, and other
areas from which the applicant affirmatively demonstrates and the
Secretary finds that soil cannot reasonably be recovered.
As we discuss above at Finding 2.kk, this revision is intended to
comply with the required program amendment codified in the Federal
regulations at 30 CFR 948.16 (kkkkk). The requirement at 30 CFR 948.16
(kkkkk) provides that CSR 38-2-7.5.j.3.B must be amended by deleting
the phrase, ``except for those areas with a slope of at least 50%,''
and by deleting the phrase, ``and other areas from which the applicant
affirmatively demonstrates and the Director of the WVDEP finds that
soil cannot reasonably be recovered.''
The WVCA requested that OSM reconsider the required amendment
codified in the Federal regulations at 30 CFR 948.16(kkkkk). The WVCA
stated that the State's rule language should be retained because of its
importance to serious safety concerns on certain areas, especially on
steep slopes. The WVCA also stated that a similar provision concerning
an exception for areas with a slope of at least 50%, at CSR 38-2-
7.4.b.1.D.2, was approved by OSM after it had reconsidered the required
amendment at 30 CFR 948.16.(vvvv), which had required the deletion of
the 50% provision at Subsection 7.4.b.1.D.2. The WVCA asserted that the
same reasoning relied upon by OSM in its reconsideration of the 50%
provision at CSR 38-2-7.4.b.1.D.2 applies with respect to the proposed
revision at CSR 38-2-7.5.j.3.B currently at issue. Further, WVCA
stated, OSM has admitted in past rulemaking that the Federal
regulations contain no counterparts to CSR 38-2-7.5 concerning
Homesteading as a post-mining land use. Therefore, WVCA asserted that
OSM's concerns with respect to this section of the rules are misplaced
and fall outside of OSM's statutorily-granted authority of review and
approval of State program amendments.
We disagree. We reviewed the required program amendment codified in
the Federal regulations at 30 CFR 948.16(kkkkk) and we believe the
State's former rule language remains a problem for the following
reasons. The State's provisions concerning the 50-percent slope and
related provisions for Commercial Forestry, at CSR 38-2-7.4.b.1.D.2,
differ significantly from those for Homesteading, at CSR 38-2-
7.5.j.3.B, such that the rationale we used to approve the 50-percent
provision in the Commercial Forestry rules is not applicable to the
Homesteading rules. Specifically, concerning the Commercial Forestry
rule, OSM asserted that while the topsoil might not be separately
recovered on slopes over 50 percent, the soil would be recovered with
the underlying brown sandstone that is required to be recovered by
related provisions at CSR 38-2-7.4.b.1.D.3, D.4., and D.5. However, the
50-percent slope provision and related provisions in the Homesteading
rule do not lend themselves to that same rationale. The Homesteading
provision at CSR 38-2-7.5.j.3.D provides that if the brown sandstone
from within 10 feet of the soil surface cannot reasonably be recovered,
``brown sandstone taken from below 10 feet of the soil from anywhere in
the permit area may be substituted.'' This appears to mean that the
upper 10 feet of material together with the topsoil may not be saved,
and material below the 10-foot level from anywhere on the permit area
could be substituted for it. This still renders the provision less
effective than the Federal regulations at 30 CFR 816.22 concerning
topsoil and subsoil, because the substitution of other material for
topsoil may be based upon criteria other than quality of the substitute
material.
We are also concerned with the language at CSR 38-2-7.5.j.3.B that
would exempt ``other areas from which the applicant affirmatively
demonstrates and the Secretary finds that soil cannot reasonably be
recovered.'' This language also appears to render the provision less
effective than the Federal requirements. When approving the 50-percent
slope provision for Commercial Forestry, we recognized concern about
the safety of trying to separately recover soil from other material
within the top 10 feet on such steep slopes. The safety issue does not
seem applicable to the ``other areas'' provision for Homesteading. In
addition, the phrase ``cannot reasonably be recovered'' is not in the
approved Commercial Forestry rules. Therefore, as noted above at
Finding 3, we are approving the State's deletion of the language that
concerns the exception for 50-percent slopes and other areas where soil
cannot reasonably be recovered.
3. Erosion Protection Zone CSR 38-2-14.14.g.2.A.6. The WVCA stated
that it supports the WVDEP's position that OSM should reconsider its
initial disapproval of language regarding the Erosion Protection Zone
(EPZ) related to durable rock fills. The WVCA stated that it believes
that the information supplied by WVDEP should be sufficient to address
the concerns of both OSM and EPA. The WVCA also stated that it also
maintains that the ability to leave the EPZ in place after fill
construction is essential to overall regulatory success of the revised
valley fill construction rules. The WVCA also stated that OSM's
decision to review and approve provisions of State regulations that
have no parallel in the Federal program has jeopardized the overall
success of new State regulations.
As discussed above under Finding 5, EPA reconsidered its earlier
decision regarding EPZs. EPA stated that recent discussions with WVDEP
and OSM provided it additional information which lessened its concern
about EPZs. EPA noted that EPZs would be left in place only where
environmental/public benefits would outweigh any anticipated impacts
and that EPZ construction would be subject to CWA section 404 under the
jurisdiction of the U.S. Army Corps of Engineers and EPA. Because these
requirements were reiterated in the State's submission to OSM, EPA
agreed to remove its condition for concurrence with CSR 38-2-
14.14.g.2.A.6.
Federal Agency Comments
Under 30 CFR 732.17(h)(11)(i) and section 503(b) of SMCRA, we
requested comments on the amendment from various Federal agencies with
an actual or potential interest in the West Virginia program
(Administrative Record Number WV-1427). We received comments from the
U.S. Department of Labor, Mine Safety and Health
[[Page 10787]]
Administration (MSHA) (Administrative Record Number WV-1435). MSHA
stated that its review of the State's amendments revealed that only
those amendments which addressed impoundment design/construction and
blasting practices were relevant to miners' health and safety. MSHA
stated that it had determined that there was no inconsistency in those
areas of the State's amendment with MSHA's regulations.
The Department of the Interior, National Park Service (NPS)
responded with comments (Administrative Record Number WV-1434). The NPS
commented on the amendment to CSR 38-2-7.4.b.1.A.3(b), and the phrase
``an approved geologist shall create a certified geology map showing *
* *.'' We note that this language is currently part of the approved
West Virginia program, was not amended, and we did not request comment
on that language. Therefore, we will not address that comment.
The NPS commented on CSR 38-2-7.4.b.1.B.1, and the phrase ``* * *
that a professional soil scientist employed by the Secretary * * *''
and again at CSR 38-2-7.4.b.1.I.1, and the phrase ``* * * a
professional soil scientist shall certify * * *.'' The NPS stated that
soils scientists also come with national or State certifications.
Though West Virginia does not have a certification program for soils
scientists, the West Virginia Association of Professional Soils
Scientists (WVAPSS) does have a registry of certified ``Professional
Soils Scientists.'' The NPS recommended changing the language to
specifically reflect a certified professional status for performing
soils analysis. The NPS also stated that the proposed revisions call
for the use of registered professional foresters or registered
professional engineers. By requiring certified soils scientists and
geologists, the NPS stated, the State would be creating a coherent and
professional image throughout the WVDEP regulatory program.
In response, we note that there is no specific Federal counterpart
to the language at CSR 38-2-7.4.b.1.B.1. The intent of this provision
is to require that a professional soil scientist employed by the
Secretary of the WVDEP review and field verify the soil slope and
sandstone mapping information provided in a commercial forestry and
forestry reclamation plan. The amendment merely deletes the word
``certified'' because West Virginia does not have a State certification
system for soil scientists. As we noted above in Finding 2.o, we find
that as amended, CSR 38-2-7.4.b.1.B.1 is not inconsistent with the
requirements of SMCRA at section 515(c)(3)(B) and the Federal
regulations at 30 CFR 785.14(c) concerning mountaintop removal mining
operations. However, as suggested by NPS, and though not mandatory, we
did encourage the State to require the use of a registry such as the
WVAPSS or a similar one.
The U.S. Department of Agriculture, Forest Service responded with
comments (Administrative Record Number WV-1430). The U.S. Forest
Service urged that the amendment contain stronger language to restrict
using any seed or mulch that is not certified as weed free. In
response, the U.S. Forest Service's comments concern provisions that
were not amended by the State. Therefore, we will not address those
comments here.
The U.S. Forest Service also encouraged the involvement of the West
Virginia Division of Forestry to provide the WVDEP evidence of meeting
the various standards of success when pertaining to forestry-related
items. For example, the U.S. Forest Service stated that CSR 38-2-9.3.e,
concerning final inspection for final bond release, could be re-written
to require that, ``[u]pon receipt of such request, the WV Division of
Forestry shall conduct an inspection to verify the final vegetative
evaluation for the Secretary.'' The U.S. Forest Service stated that
involving the WV Division of Forestry for final inspections and
certification for the Secretary of the WVDEP assures that an impartial
entity with both the expertise and the public trust carries out that
assignment rather than continuing to rely on a forestry consultant. In
response, while this recommendation by the U.S. Forest Service has
merit, the requirement at CSR 38-2-9.3.e that the Secretary of the
WVDEP conduct the inspection for final bond release is no less
effective than the Phase III bond release requirements in the Federal
regulations at 30 CFR 800.40(c)(3). In addition, WVDEP has already
solicited and received approval from the WV Division of Forestry and
the Wildlife Resources Section of the Division of Natural Resources
with regard to the State's stocking rates and planting arrangements as
required by 30 CFR 816.116(b)(3)(i).
Environmental Protection Agency (EPA) Concurrence and Comments
Under 30 CFR 732.17(h)(11) (ii), we are required to obtain written
concurrence from EPA for those provisions of the program amendment that
relate to air or water quality standards issued under the authority of
the Clean Water Act (33 U.S.C. 1251 et seq.) or the Clean Air Act (42
U.S.C. 7401 et seq.).
By letter dated August 2, 2005, we requested comments and the
concurrence from EPA on the State's program amendments (Administrative
Record Number WV-1426). EPA responded by letter dated November 22, 2005
(Administrative Record Number WV-1449) and further clarified its
response on December 13, 2005 (Administrative Record Number WV-1452).
On November 22, 2005, EPA advised us that it had reviewed the
State's proposed revisions that we had submitted, and it had not
identified any apparent inconsistencies with CWA, Clean Air Act, or
other statutes and regulations under EPA's jurisdiction. EPA,
therefore, concurred with the proposed State revisions pertaining to
environmental standards.
EPA also provided the following comments on the proposed revisions.
1. Environmental Protection Zones--CSR 38-2-14.14.g.2.A.6
According to EPA, this proposed revision allows placement of
erosion protection zones (EPZs) between valley fills and sedimentation
ponds. EPZs consist of low, wide fills up to a few hundred feet long
depending on the heights of the valley fills. Their purpose would be to
slow down storm runoff from valley fills, prior to completion of
reclamation and revegetation, in order to prevent scouring of
sedimentation ponds.
EPA stated that on June 13, 2003, it provided conditional
concurrence with this same proposed revision. Its concern was that the
stream fills associated with EPZs would remain permanently. EPA's
condition for concurrence required that the stream fills would be
removed and stream channel reconstructed after completion of mining and
reclamation.
According to EPA, since then, information received during its
discussions with WVDEP and OSM lessened its concern about EPZs. EPA
acknowledged that EPZs would be left in place only where environmental/
public benefits would outweigh any anticipated impacts and that EPZ
construction would be subject to CWA section 404 under the jurisdiction
of the U.S. Army Corps of Engineers and EPA. According to EPA, these
requirements were reiterated in a June 13, 2005, letter from WVDEP to
OSM, a copy of which was included in documents submitted to EPA on
August 2, 2005. It was with this understanding that EPA removed its
condition for concurrence with CSR 38-2-14.14.g.2.A.6.
As discussed above under Finding 5, OSM is now approving, with
EPA's concurrence, the provision at CSR 38-
[[Page 10788]]
2-14.14.g.2.A.6 which provides, ``Unless otherwise approved in the
reclamation plan.'' In the future, EPZs will be left in place only
where environmental/public benefits will outweigh any anticipated
impacts, and EPZ construction will be subject to CWA section 404 under
the jurisdiction of EPA and the U.S. Army Corps of Engineers. WVDEP's
draft EPZ policy identified under Finding 5 further describes the type
of benefits that must be demonstrated before an EPZ can become a
permanent structure.
2. Alternative Bonding Requirements--House Bill 3033
EPA acknowledged that House Bill 3033 proposes feasibility studies
for alternative bonding approaches, including a possible separate
funding mechanism for water treatment. EPA said that it supports all
efforts toward finding the most effective approaches for preventing
drainage problems after mine closure. To prevent perpetual postmining
drainage problems, EPA stated that it is important to have a well
funded bonding program to provide for postmining contingencies. Also
important, is an effective permit review program which identifies acid-
producing potentials of proposed mining sites and denies permits where
it is determined that treatment of postmine drainage would likely be
necessary.
OSM agrees that an alternative bonding system must provide
sufficient revenue to complete the reclamation plans for any sites that
may be in default at any time as required by 30 CFR 800.11(e). As
discussed above, we concluded that the requirement for the State to
pursue cost effective alternative water treatment strategies does not
represent a substantive change to the State program, and it has no
immediate effect on its implementation. Furthermore, we concluded that
if the State does identify any needed regulatory revisions, such
changes will be subject to further review and approval. Therefore, OSM
determined that the proposed State revision at W.Va. Code 22-3-
11(h)(2)(A) regarding alternative water treatment strategies does not
require our approval.
3. Good Samaritan Act--House Bill 2333
EPA stated that the intent of House Bill 2333 is to increase
incentives for non-profit volunteer groups to reclaim abandoned mines
and abate mine drainage. According to EPA, the bill is intended to
provide immunity from civil liability, under the laws of West Virginia,
for injury or pollution problems which may result from these
activities. EPA said that to avoid projects which have the potentials
for creating additional pollution, the bill requires WVDEP's review and
approval and a determination that the completed project would likely
result in improved water quality. EPA stated that it supports volunteer
programs for abating abandoned mine drainage and certainly does not
want liability concerns to dissuade good faith efforts. EPA noted that
its non-point source program under CWA section 319 is very active in
providing funds to citizen watershed organizations for addressing these
situations throughout the coal-mining states. However, to assure that
this State legislation is clearly understood to accomplish its intended
purpose and not to limit EPA's jurisdiction or authority in any way,
EPA requested that that following text be included in House Bill 2333,
``Nothing herein is intended to abrogate the jurisdiction or authority
of the United States Environmental Protection Agency.''
In response, we notified EPA Region III, that apparently there was
some concern about the intended purpose of the State's legislation and
that it could limit EPA's jurisdiction or authority. We noted that the
State's statutory provisions cannot be amended without further
legislative action. EPA responded on December 13, 2005, and stated that
it was not their intention that their recommendation should be
interpreted as a condition of concurrence. EPA acknowledged that it did
not wish to delay implementation of this provision and rather than
requiring a statutory change, it concurred with OSM's alternative
approach (Administrative Record Number WV-1452).
As discussed above under Finding 1, EPA has launched a Good
Samaritan Initiative, but it does not have these requirements under
either the CWA or its implementing regulations. Although EPA supports
the proposed State requirements, it needed assurance that the State
provisions would not limit its authority. Therefore, as acknowledged in
Finding 1, OSM approved the State's Environmental Good Samaritan Act at
W.Va. Code 22-27-1 et seq. with the understanding that none of the
provisions therein can be interpreted now or in the future as
abrogating the authority or jurisdiction of the EPA under the CWA.
V. OSM's Decision
Based on the above findings, we are approving, except as noted
below, the program amendment that West Virginia sent us on June 13,
2005, and that was modified on August 23, 2005. In addition, the
following required program amendments are satisfied and can be removed:
30 CFR 948.16(a), (sss), (wwww), (fffff), (iiiii), (jjjjj), (kkkkk),
(lllll), (ooooo), (ppppp), and (rrrrr).
W.Va. Code 22-27-1 et seq. (the State's Environmental Good
Samaritan Act) is only approved to the extent that none of the
provisions therein can be interpreted as abrogating the authority or
jurisdiction of the EPA.
CSR 38-2-3.29.a is approved with the understanding that the State
will insert a period after ``IBR'' and delete the words, ``or where it
has been demonstrated to the satisfaction of the Secretary that limited
coal removal on areas immediately adjacent to the existing permit.''
CSR 38-2-5.4.b.10 is approved with the understanding that it
provides for a 1.3 minimum static safety factor for all other
impoundments that do not meet the size or other criteria of 30 CFR
77.216(a) or are not impoundments that meet the Class B or C criteria
for dams in TR-60, and are not coal mine waste impounding structures.
CSR 38-2-5.4.b.12 is approved with the understanding that the
reference to CSR 38-2-5.4.b.10 in the proposed provision means that
foundation investigations and any necessary laboratory testing of
foundation materials must be performed for impoundments that meet the
Class B or C criteria for dams at TR-60, the size or other criteria of
MSHA at 30 CFR 77.216(a), or the West Virginia Dam Control Act.
CSR 38-2-5.4.c remains approved with the understanding that
stability analyses will be conducted for all structures that meet the
Class B or C criteria for dams in TR-60 as required by 30 CFR
780.25(f).
CSR 38-2-5.4.d.4 is approved with the understanding that design
plans for impoundments that meet the Class B or C criteria for dams in
TR-60 and meet or exceed the size or other criteria of MSHA at 30 CFR
77.216(a) will be prepared by, or under the direction of, and certified
by a registered professional engineer as provided by 30 CFR
780.25(a)(2). Also, CSR 38-2-5.4.d.3 is approved with the understanding
that the design plans for all other structures not included in
Subsections 3.6.h.5 or 5.4.d.4 will be prepared by, or under the
direction of, and certified by a registered professional engineer or
licensed land surveyor as provided by 30 CFR 780.25(a)(3). Subsection
38-2-5.4 is approved with the understanding that the design plan
requirements at Subsection 3.6.h apply to those impoundments that meet
the Class B or
[[Page 10789]]
C criteria for dams in TR-60 or meet or exceed the size or other
criteria of MSHA at 30 CFR 77.216(a) as provided by 30 CFR
780.25(a)(2). Subsection 5.4 to the extent that the design plan
requirements at Subsection 3.6.h apply to all other impoundments not
identified above as provided by 30 CFR 780.25(a)(3).
At CSR 38-2-5.4.e.1, the words ``Impoundments meeting'' are not
approved.
CSR 38-2-7.4.b.1.D.11 is approved with the understanding that
sufficient forestry mine soil shall be placed on valley fill faces to
sustain vegetation and support the approved postmining land use.
At CSR 38-2-7.4.b.1.J.1(c), the deletion of the following words is
not approved: ``surface material shall be composed of soil and the
materials described in subparagraph 7.4.b.1.D.''
CSR 38-2-9.3.d and 9.3.e are approved with the understanding that
the statistically valid sampling technique to be used must receive the
approval of the regulatory authority, and it will be a part of the
approved permit application.
At CSR 38-2-14.14.g.2.A.6, the language which provides ``Unless
otherwise approved in the reclamation plan,'' is approved and the
disapproval codified at 30 CFR 948.12(g) has been fully resolved.
To implement this decision, we are amending the Federal regulations
at 30 CFR part 948, which codify decisions concerning the West Virginia
program. We find that good cause exists under 5 U.S.C. 553(d)(3) to
make this final rule effective immediately. Section 503(a) of SMCRA
requires that the State's program demonstrate that the State has the
capability of carrying out the provisions of the Act and meeting its
purposes. Making this rule effective immediately will expedite that
process. SMCRA requires consistency of State and Federal standards.
VI. Procedural Determinations
Executive Order 12630--Takings
The provisions in the rule based on counterpart Federal regulations
do not have takings implications. This determination is based on the
analysis performed for the counterpart Federal regulations. The
revisions made at the initiative of the State that do not have Federal
counterparts have also been reviewed and a determination made that they
do not have takings implications. This determination is based on the
fact that the provisions are administrative and procedural in nature
and are not expected to have a substantive effect on the regulated
industry.
Executive Order 12866--Regulatory Planning and Review
This rule is exempt from review by the Office of Management and
Budget under Executive Order 12866.
Executive Order 12988--Civil Justice Reform
The Department of the Interior has conducted the reviews required
by section 3 of Executive Order 12988 and has determined that this rule
meets the applicable standards of subsections (a) and (b) of that
section. However, these standards are not applicable to the actual
language of State regulatory programs and program amendments because
each program is drafted and promulgated by a specific State, not by
OSM. Under sections 503 and 505 of SMCRA (30 U.S.C. 1253 and 1255) and
the Federal regulations at 30 CFR 730.11, 732.15, and 732.17(h)(10),
decisions on proposed State regulatory programs and program amendments
submitted by the States must be based solely on a determination of
whether the submittal is consistent with SMCRA and its implementing
Federal regulations and whether the other requirements of 30 CFR parts
730, 731, and 732 have been met.
Executive Order 13132--Federalism
This rule does not have Federalism implications. SMCRA delineates
the roles of the Federal and State governments with regard to the
regulation of surface coal mining and reclamation operations. One of
the purposes of SMCRA is to ``establish a nationwide program to protect
society and the environment from the adverse effects of surface coal
mining operations.'' Section 503(a)(1) of SMCRA requires that State
laws regulating surface coal mining and reclamation operations be ``in
accordance with'' the requirements of SMCRA, and section 503(a)(7)
requires that State programs contain rules and regulations ``consistent
with'' regulations issued by the Secretary pursuant to SMCRA.
Executive Order 13175--Consultation and Coordination With Indian Tribal
Governments
In accordance with Executive Order 13175, we have evaluated the
potential effects of this rule on Federally-recognized Indian tribes
and have determined that the rule does not have substantial direct
effects on one or more Indian tribes, on the relationship between the
Federal Government and Indian tribes, or on the distribution of power
and responsibilities between the Federal Government and Indian tribes.
The basis for this determination is that our decision is on a State
regulatory program and does not involve Federal regulations involving
Indian lands.
Executive Order 13211--Regulations That Significantly Affect The
Supply, Distribution, or Use of Energy
On May 18, 2001, the President issued Executive Order 13211 which
requires agencies to prepare a Statement of Energy Effects for a rule
that is (1) considered significant under Executive Order 12866, and (2)
likely to have a significant adverse effect on the supply,
distribution, or use of energy. Because this rule is exempt from review
under Executive Order 12866 and is not expected to have a significant
adverse effect on the supply, distribution, or use of energy, a
Statement of Energy Effects is not required.
National Environmental Policy Act
This rule does not require an environmental impact statement
because section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that
agency decisions on proposed State regulatory program provisions do not
constitute major Federal actions within the meaning of section
102(2)(C) of the National Environmental Policy Act (42 U.S.C.
4332(2)(C)).
Paperwork Reduction Act
This rule does not contain information collection requirements that
require approval by OMB under the Paperwork Reduction Act (44 U.S.C.
3507 et seq.).
Regulatory Flexibility Act
The Department of the Interior certifies that a portion of the
provisions in this rule will not have a significant economic impact on
a substantial number of small entities under the Regulatory Flexibility
Act (5 U.S.C. 601 et seq.) because they are based upon counterpart
Federal regulations for which an economic analysis was prepared and
certification made that such regulations would not have a significant
economic effect upon a substantial number of small entities. In making
the determination as to whether this rule would have a significant
economic impact, the Department relied upon the data and assumptions
for the counterpart Federal regulations. The Department of the Interior
also certifies that the provisions in this rule that are not based upon
counterpart Federal regulations will not have a significant economic
impact on a substantial
[[Page 10790]]
number of small entities under the Regulatory Flexibility Act (5 U.S.C.
601 et seq.). This determination is based on the fact that the
provisions are administrative and procedural in nature and are not
expected to have a substantive effect on the regulated industry.
Small Business Regulatory Enforcement Fairness Act
This rule is not a major rule under 5 U.S.C. 804(2), the Small
Business Regulatory Enforcement Fairness Act. This rule: (a) Does not
have an annual effect on the economy of $100 million; (b) Will not
cause a major increase in costs or prices for consumers, individual
industries, Federal, State, or local government agencies, or geographic
regions; and (c) Does not have significant adverse effects on
competition, employment, investment, productivity, innovation, or the
ability of U.S.-based enterprises to compete with foreign-based
enterprises. This determination is based upon the fact that a portion
of the State provisions are based upon counterpart Federal regulations
for which an analysis was prepared and a determination made that the
Federal regulation was not considered a major rule. For the portion of
the State provisions that is not based upon counterpart Federal
regulations, this determination is based upon the fact that the State
provisions are administrative and procedural in nature and are not
expected to have a substantive effect on the regulated industry.
Unfunded Mandates
This rule will not impose an unfunded mandate on State, local, or
tribal governments or the private sector of $100 million or more in any
given year. This determination is based upon the fact that a portion of
the State submittal, which is the subject of this rule, is based upon
counterpart Federal regulations for which an analysis was prepared and
a determination made that the Federal regulation did not impose an
unfunded mandate. For the portion of the State provisions that is not
based upon counterpart Federal regulations, this determination is based
upon the fact that the State provisions are administrative and
procedural in nature and are not expected to have a substantive effect
on the regulated industry.
List of Subjects in 30 CFR Part 948
Intergovernmental relations, Surface mining, Underground mining.
Dated: January 12, 2006.
Michael K. Robinson,
Acting Regional Director, Appalachian Region.
0
For the reasons set out in the preamble, 30 CFR part 948 is amended as
set forth below:
PART 948--WEST VIRGINIA
0
1. The authority citation for part 948 continues to read as follows:
Authority: 30 U.S.C. 1201 et seq.
0
2. Section 948.12 is amended by removing and reserving paragraph (g)
and adding new paragraph (i) to read as follows.
Sec. 948.12 State statutory, regulatory, and proposed program
amendment provisions not approved.
* * * * *
(i) We are not approving the following provisions of the proposed
program amendment that West Virginia submitted on June 13, 2005, and
modified on August 23, 2005:
(1) At CSR 38-2-5.4.e.1, the words ``Impoundments meeting.''
(2) At CSR 38-2-7.4.b.1.J.1(c), the deletion of the words ``surface
material shall be composed of soil and the materials described in
subparagraph 7.4.b.1.D.''
0
3. Section 948.15 is amended by adding a new entry to the table in
chronological order by ``Date of publication of final rule'' to read as
follows:
Sec. 948.15 Approval of West Virginia regulatory program amendments.
* * * * *
------------------------------------------------------------------------
Date of
Original amendment submission publication of Citation/
date final rule description
------------------------------------------------------------------------
* * * * * * *
June 13, 2005, and modified on March 2, 2006..... W.Va. Code 22-3-
August 23, 2005. 11(h)(2)(B); 11a;
32a; 22-27-1
through 12. CSR
38-2-2.92;
3.29.a; 5.4.a,
b.9, b.10, b.12,
c.7, d.3, d.4,
e.1, f;
7.4.b.1.A.1, A.3,
A.3(b), A.4, B.1,
C.1, C.2, C.3,
C.4, C.5, D.6,
D.8, D.9, D.11,
H.1, H.2, H.6,
I.1, I.2, I.3,
I.4, J.1; 7.5.a,
b.3, i.10, j.3.A,
j.3.B, j.3.E,
l.4.A, o.2;
9.3.d, 9.3.e;
14.5.h,
14.14.g.2.A.6;
14.15.c.3;
20.6.d, 20.6.j.
CSR 199-1-2.36a,
2.36b, 2.37;
3.3.b, 3.7; 4.8,
4.8.c, 4.8.f,
4.8.g, 4.9; Water
Rights and
Replacement
Policy (August
1995); September
2003 MOA between
WVDEP, DMR and
WVDNR, Wild
Resources
Section;
Permittee's
Request for
Release form,
Item 11, dated
March 2005.
------------------------------------------------------------------------
Sec. 948.16 [Amended]
0
4. Section 948.16 is amended by removing and reserving paragraphs (a),
(sss), (wwww), (fffff), (iiiii), (jjjjj), (kkkkk), (lllll), (ooooo),
(ppppp), and (rrrrr).
[FR Doc. 06-1901 Filed 3-1-06; 8:45 am]
BILLING CODE 4310-05-P