# West Virginia Regulatory Program > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/fr%3A02-10759 ## Record - **Collection:** Federal Register - **Document type:** Rule - **Published:** May 1, 2002 - **Citation:** 67 FR 21904 ## Text DEPARTMENT OF THE INTERIOR Office of Surface Mining Reclamation and Enforcement 30 CFR Part 948 [WV-088-FOR] West Virginia Regulatory Program AGENCY: Office of Surface Mining Reclamation and Enforcement, Interior. ACTION: Final rule; approval of amendment. SUMMARY: We, the Office of Surface Mining Reclamation and Enforcement (OSM), are approving proposed amendments to the West Virginia regulatory program (the “West Virginia program”) authorized under the Surface Mining Control and Reclamation Act of 1977 (SMCRA or the Act). The amendments consist of the State's responses to several required program amendments codified in the Federal regulations at 30 CFR 948.16. The amendments are intended to revise the West Virginia program to be consistent with the corresponding Federal regulations and SMCRA. EFFECTIVE DATE: May 1, 2002. FOR FURTHER INFORMATION CONTACT: Mr. Roger W. Calhoun, Director, Charleston Field Office, 1027 Virginia Street East, Charleston, West Virginia 25301. Telephone: (304) 347-7158, Internet address: chfo@osmre.gov. SUPPLEMENTARY INFORMATION: I. Background on the West Virginia Program II. Submission of the Amendments III. OSM's Findings IV. Summary and Disposition of Comments V. OSM's Decision VI. Procedural Determinations I. Background on the West Virginia Program Section 503(a) of the Act permits a State to assume primacy for the regulation of surface coal mining and reclamation operations on non-Federal and non-Indian lands within its borders by demonstrating that its State program includes, among other things, “a State law which provides for the regulation of surface coal mining and reclamation operations in accordance with the requirements of the Act * * *; and rules and regulations consistent with regulations issued by the Secretary pursuant to the Act.” See 30 U.S.C. 1253 (a)(1) and (7). On the basis of these criteria, the Secretary of the Interior conditionally approved the West Virginia program on January 21, 1981. You can find background information on the West Virginia program, including the Secretary's findings, the disposition of comments, and the conditions of the approval in the January 21, 1981, Federal Register (46 FR 5915). You can also find later actions concerning the West Virginia program and program amendments at 30 CFR 948.10, 948.12, 948.13, 948.15, and 948.16. II. Submission of the Amendments By letter dated November 30, 2000 (Administrative Record Number WV-1189), West Virginia sent us an amendment to its program, under SMCRA (30 U.S.C. 1201 et seq. ). The amendment includes numerous attachments and was submitted in response to the following required program amendments: 30 CFR 948.16(a), (dd), (ee), (oo), (tt), (xx), (mmm), (nnn), (ooo), (qqq), (sss), (vvv)(1), (2), (3), and (4), (www), (xxx), (zzz), (aaaa), (bbbb), (ffff), (gggg), (hhhh), (iiii), (jjjj), (kkkk), (llll), (mmmm), (nnnn), (oooo), and (pppp). However, in a previous decision dated October 1, 1999 (64 FR 53200), we found that the State had satisfied the required amendment codified at 30 CFR 948.16(mmm) and, therefore, it was removed. In another previous decision dated August 18, 2000 (65 FR 50409), we found that the State had satisfied the required amendments codified at 30 CFR 948.16(www) and (xxx), and, therefore, we removed them. We announced receipt of the proposed amendment in the January 3, 2001, Federal Register (66 FR 335-340). In the same document, we opened the public comment period and provided an opportunity for a public hearing or meeting on the amendment's adequacy (Administrative Record Number WV-1194). We did not hold a public hearing or meeting, because no one requested one. The public comment period ended on February 2, 2001. However, a public commenter requested an extension of the public comment period, and to accommodate that request we extended the comment period to February 28, 2001. We received comments from one environmental organization and three Federal agencies. We are also including in this final rule document our decisions on the State's responses to required program amendments that were submitted to us as part of a separate program amendment package dated May 2, 2001. We will address the remainder of the May 2, 2001, amendment in a separate final rule document at a later date. In a letter dated May 2, 2001 (Administrative Record Number WV-1209) West Virginia Department of Environmental Protection (WVDEP) submitted revisions to its Surface Mining Reclamation Regulations, Code of State Regulations (CSR) 38-2. Enrolled Committee Substitute for House Bill 2663 (Administrative Record Number WV-1210) that passed the Legislature on April 14, 2001, and was signed into law by the Governor on May 2, 2001, authorized WVDEP to promulgate the regulatory revisions. A notice (66 FR 28682) announcing receipt and a public comment period on the amendment was published in the Federal Register on May 24, 2001 (Administrative Record Number WV-1213). The amendments that we are deciding here were submitted by WVDEP to address the required amendments codified at 30 CFR 948.16(xx), (qqq), (zzz), (ffff), (gggg), (hhhh), (jjjj), (nnnn), and (pppp). The comment period closed on the program amendment on June 25, 2001. We received comments on the State's responses to the required amendments noted above from two Federal agencies. We are also including in this final rule document our decisions on the State's responses to required program amendments that were submitted to us as part of a separate program amendment package dated November 28, 2001. We will address the remainder of the November 28, 2001, amendment in a separate final rule document at a later date. The amendments that we are deciding here were submitted by WVDEP to address the required amendments codified at 30 CFR 948.16(kkkk), (llll), and (mmmm). A notice (67 FR 4689-4692) announcing receipt and a public comment period on the program amendment package was published in the Federal Register on January 31, 2002 (Administrative Record Number WV-1267). The public comment period closed on March 4, 2002. We received comments on the required amendments noted above from three Federal agencies. On January 15, 2002 (Administrative Record Number WV-1271), we met with the State to discuss the required amendments codified at 30 CFR 948.16. In that meeting, WVDEP agreed to provide us with further clarification on how and when they would provide additional information, amend policies set forth in its Permit, Inspection and Technical Handbooks, or propose rulemaking that would resolve specific issues. By letter dated February 26, 2002, WVDEP sent us a status report regarding the required program amendments codified at 30 CFR 948.16 (Administrative Record Number WV-1276). The report included 14 attachments, and outlined actions taken in an attempt to satisfy the required program amendments. The actions include proposed policies, rules and laws, form changes, and referrals to legal staff. Several actions include further justification of why WVDEP considers the State program to be sufficient. WVDEP stated that the law and rule changes would be proposed during the 2002 regular legislative session, and that none of the proposed revisions would be implemented without OSM approval. By letter dated March 8, 2002, WVDEP sent us revisions to two of the attachments it had sent us in its February 26 letter (Administrative Record Number WV-1280). The March 8, 2002, letter also included one new attachment intended to address the required amendment at 30 CFR 948.16(sss). In the March 25, 2002, Federal Register (67 FR 13577-13585) we reopened the comment period to provide the public an opportunity to review and comment on the topics discussed in the January 15, 2002, meeting; WVDEP's February 26 and March 8, 2002, submittals; and related information that we provided to WVDEP (Administrative Record Number WV-1285). The comment period closed on April 9, 2002. We received comments from one industry group and two Federal agencies. III. OSM's Findings Following are the findings we made pursuant to SMCRA and the Federal regulations at 30 CFR 732.15 and 732.17 concerning the proposed amendments to the West Virginia program. We are approving these amendments and removing the required amendments. Any revisions that we do not specifically discuss below concern nonsubstantive wording or editorial changes. We are presenting our findings below in the following format: a description of the required amendment codified at 30 CFR 948.16; followed by a quotation or a description of the State's response to the required amendment; and our finding. 1. Blasting. 30 CFR 948.16(a) provides that West Virginia must submit copies of proposed regulations or otherwise propose to amend its program to provide that all surface blasting operations (including those using less than five pounds and those involving surface activities at underground mining operations) shall be conducted under the direction of a certified blaster. State Response This required program amendment should be removed. Current language in [subsection] 6.1 of the rules states “a blaster certified by the Division of Environmental Protection shall be responsible for all blasting operations”. A letter dated August 30, 1994 from James Blankenship (OSM) to David C. Callaghan (WVDEP Director) stated “required amendment 30 CFR 948.16(a) will be removed because the state has removed the offending language”. (Federal counterpart 816.61(c)) In the above referenced August 30, 1994, letter (Administrative Record Number WV-934) we acknowledged that the West Virginia program does require all blasting operations to be conducted by a certified blaster. Revised CSR 38-2-6.1 provides that “a blaster certified by the Department of Environmental Protection shall be responsible for all blasting operations including the transportation, storage and use of explosives within the permit area in accordance with the blasting plan.” We find, therefore, that the requirement of 30 CFR 948.16(a) is satisfied and can be removed. 2. Revegetation. 30 CFR 948.16(dd) provides that West Virginia must submit proposed revisions to Subsection CSR 38-2-9.3 of its Surface Mining Reclamation Regulations or otherwise propose to amend its program to establish productivity success standards for grazing land, pasture land and cropland; require use of the 90 percent statistical confidence interval with a one-sided test using a 0.10 alpha error in data analysis and in the design of sampling techniques; and require that revegetation success be judged on the basis of the vegetation's effectiveness for the postmining land use and in meeting the general revegetation and reclamation plan requirements of Subsections 9.1 and 9.2. Furthermore, West Virginia must submit for OSM approval its selected productivity and revegetation sampling techniques to be used when evaluating the success of ground cover, stocking or production as required by 30 CFR 816.116 and 817.116. State Response Productivity: The WVDEP has developed a policy (Attachment 1) that will use productivity standards developed by the Natural Resources Conservation Service (NRCS) or other publications of the United States Department of Agriculture. These standards will be compared to yields obtained from the particular site. Ground cover: WVDEP has reviewed the modified Rennie-Farmer Method in addition to methods used in other states and has developed a policy (Attachment 1) which references section 3 of “Technical Guides of Reference Areas and Technical Standards for Evaluating Surface Mine Vegetation in OSM Regions I and II,” by Robert E. Farmer, Jr. et al., OSM_J5701442/TV-54055A, 1981, U.S. Department of the Interior, Office of Surface Mining Reclamation and Enforcement. Productivity: As discussed in the May 23, 1990, Federal Register , the State's regulations at Subsection 9.3(f) required the measurement of productivity, but they did not establish productivity success standards for grazing land, pasture land and cropland (55 FR 21322). In addition, the State failed to select and submit its productivity sampling technique(s) to be used in evaluating productivity. WVDEP submitted a policy on February 26, 2002, addressing this issue. The policy was revised and resubmitted to us on March 8, 2002, as Attachment 1. The policy provides that the productivity standards for grazing land and hayland will be based upon determinations for similar map units as published in the productivity tables in NRCS soil surveys for the county or from average county yields recognized by the U.S. Department of Agriculture (USDA). We note that “The West Virginia Bulletin,” which is published annually by the West Virginia Agricultural Statistics Service, in cooperation with the USDA, lists average county yields for various principal crops throughout the State. The yields for grazing land or hayland will be measured in material produced per acre or animal units supported. The success of production shall be equal to or greater than that of the standard obtained from the tables. The evaluation methods for productivity to be used are described in Section 1 of “Technical Guides of Reference Areas and Technical Standards for Evaluating Surface Mine Vegetation in OSM Regions I and II,” by Robert E. Farmer, Jr. et al., OSM_J5701442/TV-54055A, 1981, U.S. Department of the Interior, Office of Surface Mining Reclamation and Enforcement. CSR 38-2-9.3.f of the State's existing Surface Mining Reclamation Regulations, which establishes the success standard for grazing land and pasture land, provides where the postmining land use requires legumes and perennial grasses, the operator shall achieve at least a ninety (90) percent ground cover and a productivity level as set forth in the (Technical) Handbook during any two years of the responsibility period except for the first year. The State does not intend to revise the Technical Handbook that is referenced in its rules. Instead, the proposed policy will become part of the Permitting or Inspector Handbook. According to the policy, the productivity success standard for cropland will be determined using yields for reference crops from unmined lands. Reference crop yields shall be determined from the current yield records of representative local farms in the surrounding area or from the average county yields recognized by the U.S. Department of Agriculture. The success of production shall be equal to or greater than that of the reference crop from unmined areas. Evaluation methods for productivity to be used are described in Section 1 of the “Technical Guides of Reference Areas and Technical Standards for Evaluating Surface Mine Vegetation in OSM Regions I and II,” by Robert E. Farmer, Jr. et al., OSM_J5701442/TV-54055A, 1981, U.S. Department of the Interior, Office of Surface Mining Reclamation and Enforcement. The policy further provides that the company (permit applicant) is responsible for providing WVDEP with copies of the productivity tables and/or data used to determine reference crop yield. Where the USDA or other agricultural data for productivity does not exist for a particular county, the applicant will work with WVDEP and USDA to develop standards for the proposed area. CSR 38-2-9.3.f.2 provides that for areas to be used for cropland, the success of crop production from the mined area shall be equal to or greater than that of the approved standard for the crop being grown over (the) last two (2) consecutive seasons of the five growing season liability period. The proposed policy clarifies that the success standard for cropland is based on yields for reference crops from “unmined” lands. The policy further provides that reference crop yields shall be based on current yield records of representative local farms in the surrounding area or from the average county yields. The existing rules do not provide for the use of reference areas in evaluating the productivity success of cropland. As proposed in the policy, an operator will be required to use reference areas in the vicinity of the proposed mining operation or average county yield records in setting the success standard when cropland is the approved postmining land use. To ensure that management levels and other factors are given proper consideration, we recommend that yield data from both the reference areas and county records be given equal weight when establishing productivity success standards for cropland. We encourage WVDEP to cite in its rules and/or policy the specific productivity standards developed by NRCS and the other publications of the USDA that the State plans to use. We also recommend the use of the “West Virginia Bulletin” published by the WV Department of Agriculture and the USDA. A copy of “West Virginia Bulletin 2001, No. 32” was provided to WVDEP on February 6, 2002. NRCS officials say that some soil surveys lack sufficient information to rate the yields for a particular soil type, especially in certain mining counties, and most yield information is based on higher levels of management. Although the WV Bulletin lacks yield information based on soil type, NRCS concurs that a combination of reports may be best to use, especially when the soil survey states that the soil is too variable to rate. Nevertheless, the lack of reference to specific publications does not render the proposed policy less effective than the Federal requirements. When submitting permit applications or permit modifications for existing operations with agricultural postmining land uses, applicants will be expected to include productivity data from the most current NRCS soil surveys and USDA publications for WVDEP review and approval. The applicant will be required to consult with WVDEP, NRCS and USDA to verify existing information or to develop data when production data is insufficient or missing for a particular county or area. CSR 38-2-9.3.d and 9.3.e provide that when evaluating vegetative success, WVDEP must use a statistically valid sampling technique with a 90 percent statistical confidence interval. The proposed policy requires the use of a sampling technique for measuring productivity as set forth in Section 1 of the “Technical Guides of Reference Areas and Technical Standards for Evaluating Surface Mine Vegetation in OSM Regions I and II.” Section 1 is entitled, “Planning and Evaluating Agricultural Land Uses on Surface-Mined Areas.” As mentioned above, 30 CFR 948.16(dd) requires the establishment of productivity success standards for grazing land, pastureland, and cropland. Because the proposed policy establishes productivity success standards for grazing land, pastureland and cropland that are no less effective than those standards set forth in 30 CFR 816.116 and 817.116, this portion of the required amendment has been satisfied and can be removed. In addition, because State rules at CSR 38-2-9.3.d and 9.3.e require the use of a statistically valid sampling technique with a 90 percent statistical confidence interval and the proposed policy provides for the use of a productivity sampling technique that uses a 90-percent statistical confidence interval (i.e., one-sided test with a 0.10 alpha error) for measuring grazing land, pastureland and cropland, that portion of the required amendment has been satisfied and can be removed. Ground Cover: As discussed in the May 23, 1990, Federal Register (55 FR 21322), the State program did not require that revegetation success be judged on the basis of the vegetation's effectiveness for the postmining land use and in meeting the general revegetation and reclamation plan requirements of Subsections 9.1 and 9.2. Furthermore, the State has failed to submit for OSM approval its selected revegetation sampling techniques to be used when evaluating ground cover. Initially, WVDEP submitted its modified Rennie-Farmer Method as its preferred method for evaluating the success of ground cover. After further evaluation of that method and other State methods, WVDEP submitted a policy on February 26, 2002, and revised it on March 8, 2002, which provides that ground cover success shall be based on the Rennie and Farmer technique described in Section 3 of the “Technical Guides of Reference Areas and Technical Standards for Evaluating Surface Mine Vegetation in OSM Regions I and II,” by Robert E. Farmer, Jr. et al., OSM_J5701442/TV-54055A, 1981, U.S. Department of the Interior, Office of Surface Mining Reclamation and Enforcement. Section 3 is entitled, “An Inventory System for Evaluating Revegetation of Reclaimed Surface Mines to Forest Resource Conservation Standards,” and contains a statistical technique for evaluating ground cover and stockings. CSR 38-2-9.3.d and 9.3.e. provide that when evaluating vegetative success, WVDEP must use a statistically valid sampling technique with a 90 percent statistical confidence interval. Ground cover, production, or stocking can only be considered equal to the approved success standard when they are not less than 90 percent of the success standard. When evaluating vegetative success, an inspection report must be filed by the inspector. Only after the applicable success standards have been met and documented can Phase II or Phase III bond release be approved by the State. Because State rules at CSR 38-2-9.3 and the proposed policy require the use of a statistical sampling technique for measuring ground cover and that measurement technique requires the use of a 90-percent statistical confidence interval (i.e., one-sided test with a 0.10 alpha error), that portion of the required amendment at 30 CFR 948.16(dd) has been satisfied and can be removed. The West Virginia program at CSR 38-2-9.1.a. and 9.1.d. provide for the establishment of a diverse, effective and permanent vegetative cover of the same seasonal variety native to the area of disturbed land, or introduced species that are compatible with the approved postmining land use. The requirement that the established vegetation be compatible with the approved postmining land use satisfies the requirement at 30 CFR 948.16(dd) which states that revegetation must be judged on the basis of the vegetation's effectiveness for the postmining land use. Therefore, that portion of 30 CFR 948.16(dd) has been satisfied and can be removed. 30 CFR 948.16(dd) also requires that the West Virginia program contain the requirement that revegetation success be judged on the basis of the vegetation's effectiveness in meeting the general revegetation and reclamation plan requirements of subsections CSR 38-2-9.1 and 9.2. As mentioned above, CSR 38-2-9.3.e., concerning the final bond release inspection, satisfies this requirement by providing that, “. . . if applicable standards have been met, the Director shall release the remainder of the bond.” CSR 38-2-12.2.c.3 further provides that only upon successful completion of the reclamation requirements of the Act, these rules and the permit conditions, may final bond release be approved by the Director. The “applicable standards” referred to at CSR 38-2-9.3.e. include the revegetation success standards and the “reclamation requirements” at CSR 38-12.2.c.3 would include all other requirements of the West Virginia program, including those requirements at CSR 38-2-9.1 and 9.2. Therefore, the remaining portion of 30 CFR 948.16(dd) has been satisfied and can be removed. 3. Prime Farmland. 30 CFR 948.16(ee) provides that West Virginia must submit documentation that the NRCS has been consulted with respect to the nature and extent of the prime farmland reconnaissance inspection required under Subsection 38-2-10.1 of the State's Surface Mining Reclamation Regulations. In addition, the State shall either delete paragraphs (a)(2) and (a)(3) of Subsection 38-2-10.2 or submit documentation that the NRCS State Conservationist concurs with the negative determination criteria set forth in these paragraphs. State Response Comments from NRCS resolve this issue (WV Administrative Record No. WV-1203). The NRCS stated in their comment letter dated February 9, 2001, to OSM that all prime farmlands in the State have been mapped and are available. WVDEP has contacted the NRCS and has drafted a letter seeking further concurrence (Attachment 1A). In an attempt to clarify these issues and to gain further insight into NRCS comments of February 9, 2001 (Administrative Record Number WV-1203), we had several discussions with NRCS officials about these issues. Through these discussions we learned that NRCS does not have soil surveys completed for all counties in West Virginia. NRCS has completed soil surveys for approximately 98 percent of the State. They have draft reports for Logan, Mingo, Lincoln, and McDowell Counties that still need to be published. The final reports will not be published until late 2002 or early 2003. In the meantime, NRCS will have to conduct soil investigations in counties that do not have completed soil surveys. NRCS does not feel that it is necessary to conduct prime farmland reconnaissance inspections in all counties of West Virginia. However, the procedural details for identifying and protecting prime farmland within the State need to be negotiated through a memorandum of understanding (MOU) or an exchange of letters between NRCS and WVDEP. In its February 25, 2002, letter that comprised Attachment 1A, WVDEP provided NRCS a copy of its rules governing prime farmlands at CSR 38-2-10. WVDEP requested that NRCS address its reconnaissance inspection requirements and concur with its negative determination criteria. WVDEP described the State's reconnaissance inspection process as it currently exists. Included in that description were the following criteria, one or more of which can be the basis for a prime farmland negative determination: (1) No historical use of the land as cropland; (2) The slope of the land in the permit area is greater than 10 percent; (3) Other factors (i.e., rocky surface, frequent flooding) disqualify the land as prime farmland; and (4) A soil survey by a qualified person. The letter further stated that WVDEP reviews the applicant's information in the application and will check county soil survey maps. The soils in the area are compared to a list from “West Virginia's Prime Farmland Soil Mapping Units” by NRCS (Attachment 3P). If the soils in the proposed mining area are not on the list, then the negative determinations are approved. If the negative determination is not approved, then the NRCS is consulted. If prime farmland is identified, then a much more detailed plan is required. For counties where no mapping has been published, WVDEP's procedure is described in Attachment 2P. If the slopes are less than 10 percent and the area has historically been used as cropland, then NRCS is consulted. WVDEP further stated that the criteria for both the slope and the rocky or flooded land were based on NRCS literature. Of all the soils identified in the “West Virginia's Prime Farmland Soil Mapping Units” document, not one has a slope greater than 10 percent and that same document says that prime farmland cannot be in areas that are flooded frequently nor in areas that are rocky (10 percent cover of rock fragments coarser than 3 inches). Attachment 2P contains a proposed policy regarding prime farmlands identifications. The policy provides that soil surveys prepared by the NRCS will be the basis for the final determination of prime farmlands in West Virginia involving surface mining permits. In the cases where soil surveys are not complete in a county and prime farmland involvement is possible, the NRCS will conduct a soil survey for the permit area for final determination. If a permit application contains any areas with less than 10 percent slope and it is evident the area has been used for crops at least 5 years out of the last 20 years, it is possible that these areas could be considered prime farmland. If this condition is present, the applicant should check the NRCS soil survey for that county. If a soil survey does not exist for a particular county, the applicant should consult the local NRCS District Conservationist for a prime farmland determination. In counties where soil surveys have been published, the applicant must locate the permit on the soils map and by using the symbols on the map, determine the soil types in the proposed area. Then, comparison with the attached list of soils constituting prime farmlands in West Virginia will have to be made. If the soil type is considered prime farmland on the list, the District Conservationist for that county must be contacted for final determination. If the permit application involves prime farmland, all provisions of Sections 507(b)(16) and 515(b)(7) of Public Law 95-87 (Sections 22-3-9(a)(15) and 22-3-13(b)(7) of the West Virginia Surface Coal Mining and Reclamation Act) and Section 10 of the West Virginia Surface Mining Reclamation Regulations will apply. Attachment 3P contains the publication entitled, “West Virginia's Prime Farmland Soil Mapping Units.” This publication contains a listing prime farmland soil mapping units throughout the State. The publication is dated April 1982. As discussed in the May 23, 1990, Federal Register (55 FR 21322), although the State's negative determination criteria appeared generally consistent with the national criteria established at 7 CFR 657, Federal rules allow the NRCS to alter these criteria and establish others. Furthermore, the definition of “prime farmland” at 30 CFR 701.5 vests responsibility for establishing prime farmland qualification criteria with the U.S. Secretary of Agriculture. To ensure that the State program is no less effective than the Federal definition of “prime farmland” in 30 CFR 30 CFR 701.5, West Virginia was required to submit documentation that the NRCS has concurred with all negative determination criteria contained in Subsection 10.2, except those of paragraph (a)(1), which pertain to historical use for cropland. In addition to demonstrating compliance with the consultation requirements of 30 CFR 785.17(b)(1), the State was to submit documentation that it has consulted with the NRCS State Conservationist in determining the nature and extent of the reconnaissance inspection. On March 7, 2002, NRCS responded to WVDEP's inquiries regarding prime farmland (Administrative Record Number WV-1290). The NRCS acknowledged that it is the Federal agency with delegated authority under law to make determinations on the existence of prime farmland. NRCS acknowledged that it provides information on prime farmland through the soil survey program as part of its technical assistance effort to the fourteen soil conservation districts in West Virginia. With respect to reconnaissance inspections, NRCS acknowledged that it could be satisfied by using locally available information. The soil map units in the soil survey are listed for prime farmland and are cross-referenced in the local Field Office Technical Guide. NRCS found that the reconnaissance inspection procedures outlined in WVDEP's proposed policy, “Prime Farmlands Identifications,” Attachment 2P, were acceptable to them. However, they requested that WVDEP change “SCS” to “NRCS.” In regard to the negative determination criteria, NRCS stated that its definitions were not consistent with several parts of CSR 38-2-10. Because cropping history is not considered in the NRCS definition of prime farmland, it could not agree with any historic use of the land as set forth in Subsections 10.2.a.1 through 10.2.a.1.C. According to the NRCS, prime farmland can be cultivated, cropland, pasture, or forestland. However, it cannot be built up land or water. The Federal regulations at 30 CFR 701.5 define prime farmland to mean those lands which are defined by the Secretary of Agriculture in 7 CFR Part 675 and which have historically been used for cropland. The State's requirements regarding historical use as cropland, like the Federal definition of prime farmland at 30 CFR 701.5, is consistent with Section 701(20) of SMCRA. That section defines prime farmland to have the same meaning as that previously prescribed by the Secretary of Agriculture on the basis of such factors as moisture availability, temperature regime, chemical balance, permeability, surface layer composition, susceptibility to flooding, erosion characteristics, and which historically have been used for intensive agricultural purposes. As discussed above, West Virginia was required to submit documentation that the NRCS concurs with all negative determination criteria contained in Subsection 10.2, except those of paragraph (a)(1), which pertain to historical use for cropland. In addition, the State's regulations at subsection 10.2.a.1 through 10.2.a.1.C are substantively identical to the Federal regulations at 30 CFR 701.5 (definition of “historically used for cropland”). NRCS concurred with Subsection 10.2.a.2 and 10.2.a.3 relating to slopes greater than 10 percent and the presence of stones on the surface. It also agreed with Subsection 10.2.a.4 and recommended the use of soil surveys in making negative determinations. NRCS concluded that nearly all areas in the State have basic information on prime farmland. If new mapping is in progress, they would provide advance information at the mapping scale used. Generally, NRCS makes prime farmland determinations at the scale of mapping used for the soil survey, either 1:12,000 or 1:24,000. This information is published through the soil survey or the local Field Office Technical Guide and provided through West Virginia's fourteen soil conservation districts. NRCS stated that it was presently updating its prime farmland statewide list. Because the NRCS concurs with the State's negative determination criteria set forth at CSR 38-2-10.2.a.2 and 10.2.a.3, regarding steepness, stoniness and flooding, OSM finds that the State prime farmland requirements at CSR 38-2-10.2 are no less effective than the Federal requirements at 30 CFR 785.17. Therefore, that portion of the required amendment at 30 CFR 948.16(ee) regarding negative determination criteria has been satisfied and can be removed. In addition, the State was to submit documentation demonstrating that it had consulted with the NRCS in determining the nature and extent of the reconnaissance inspection as provided under CSR 38-2-10.1. As mentioned above, the NRCS found the reconnaissance inspection procedures outlined in WVDEP's proposed policy, “Prime Farmlands Identifications,” to be acceptable. Because the NRCS concurs with the State's proposed reconnaissance inspection procedures, OSM finds the State's reconnaissance inspection requirements as set forth at CSR 38-2-10.1 and further defined in the proposed policy, “Prime Farmlands Identifications,” to be no less effective than those Federal requirements set forth at 30 CFR 785.17(b), which require a reconnaissance inspection in all instances. Therefore, the remaining portion of the required amendment at 30 CFR 948.16(ee) requiring the concurrence of NRCS on the State's reconnaissance inspection procedures has been satisfied and can be removed. 4. Spillway Design . 30 CFR 948.16(oo) provides that West Virginia must submit proposed revisions to Subsection 38-2-5.4(b)(8) of its Surface Mining Reclamation Regulations to require that excavated sediment control structures, which are at ground level and that have an open exit channel constructed of non-erodible material, be designed to pass the peak discharge of a 25-year, 24-hour precipitation event. State Response The WVDEP is proposing language (Attachment 2) that all sediment control structures spillways will be designed based on a 25-year/24-hour storm, except for haulroads. State rules at CSR 38-2-5.4.b.8 currently require all sediment control structures or other water retention structures be designed with spillways to safely pass a 25-year, 24-hour precipitation event. However, subsection 5.4.b.8 contains a provision that allows excavated sediment control structures, which are at ground level and have an open exit channel constructed of non-erodible material, to be designed to pass the peak discharge of a 10-year, 24-hour precipitation event. As discussed in the October 4, 1991, Federal Register (56 FR 50260) notice, the Federal regulations require that all sediment control structures not meeting the size or other criteria of 30 CFR 77.216(a) must have spillways designed to pass the peak discharge of a 25-year, 6-hour precipitation event. Therefore, the requirement at subsection 5.4.b.8 was found to be less effective than the Federal requirements at 30 CFR 816/817.46(c)(2)(ii)(B) [now 30 CFR 816/ 817.46(c)(2) and 30 CFR 816/817.49(a)(9)(ii)(C)]. The Federal regulations at 30 CFR 816/817.46(c)(2) provide that a sedimentation pond must include either a combination of principal and emergency spillways or single spillway configured as specified in 30 CFR 816/817.49(a)(9). The Federal regulations at 30 CFR 816/817.49(a)(9)(ii)(C) further provide that the spillway for an impoundment not included in paragraph (a)(9)(ii) (A) and (B) of this section must be designed and constructed to safely pass a 25-year, 6-hour or greater precipitation event as specified by the regulatory authority. On August 30, 1994, we provided the State a follow-up letter regarding several proposed revisions that the State had made to its program in 1993 (Administrative Record Number WV-934). As mentioned above, in October 1991, we had required the State to amend its program and provide that that all sediment control structures not meeting the size or other criteria of 30 CFR 77.216(a) must have spillways designed to pass the peak discharge of a 25-year, 6-hour precipitation event. Although we required the State to amend its program, the State had not proposed any revisions at the time. Instead, the State maintained that these types of structures by their vary nature are not subject to catastrophic failure or excessive erosion. According to the State, the design storm criteria are established to address these potentials and are of not significance for these structures. Initially WVDEP thought that the Illinois program contained a provision similar to the 10-year, 24-hour standard for excavated sediment control structures that WVDEP was seeking to adopt for West Virginia. However, we explained that the Illinois program does not contain such a standard. Rather, the Illinois program contains an exemption from the quarterly inspection requirements for excavated sediment control structures. The inspection frequency was reduced because most excavated sediment control structures have no embankments to examine for structural weaknesses or other hazardous conditions. West Virginia has a similar standard. WVDEP stated that a spillway design for a 25-year, 24-hour precipitation event would adversely affect the effectiveness of the on-bench sediment control system. We and WVDEP decided that an OSM engineer and a WVDEP engineer would be assigned to review the spillway design standards and determine if the proposed change would actually reduce the effectiveness of on-bench sediment control systems. Upon completion of the joint State/Federal review, it was determined that spillways designed to safely pass a 25-year, 24 hour precipitation event would only require minor changes, and they would not impact the use of excavated sediment control structures (Administrative Record Number WV-1273). In addition, the engineers determined that there is no peak discharge control problem because the open exit channels for these sediment control structures are currently larger than required due to the size of the equipment used to construct them. As the result of the review, WVDEP proposed revisions to its spillway design requirements at 30 CFR 38-2-5.4.b.8. In its February 26, 2002, submission, Attachment 2 contains a proposed revision for CSR 38-2-5.4.b.8. As amended, the provision that exempted excavated sediment control structures from the 25-year, 24-hour spillway design requirement is deleted. In its place, is language that provides the following: “provided, however that this subsection does not apply to haulroads.” As proposed, CSR 38-2-5.4.b.8. now reads as follows. 5.4.b.8. Be designed to safely pass a twenty-five (25) year, twenty-four (24) hour precipitation event. The combination of both principal and/or emergency spillway of the structures shall be designed to safely pass the peak discharge of a twenty-five (25) year, twenty-four (24) hour precipitation event, provided, that a single open channel spillway may be used only if it is of non-erodable construction and designed to carry sustained flows; or earth or grass-lined and designed to carry short term, infrequent flows at non-erosive velocities where sustained flows are not expected; provided, however, that this subsection does not apply to haulroads. The proposed exemption from the 25-year, 24-hour design standard for a haulroad drainage control system is consistent with 30 CFR 816/817.151(d) and CSR 38-2-4.6, which provides that ditch lines, culverts, bridges or other structures associated with haulroads must be capable of passing the peak discharge of a 10-year, 24-hour precipitation event. The State submitted the proposed rule changes to the Legislature in February 2002. However, because of a procedural error, the Legislature did not adopt the revised language. To correct this oversight, on April 19, 2002, WVDEP filed these changes with the Secretary of State as emergency rules. According to State law, emergency rules can remain in effect for not more than 15 months. Final legislative rules are to be adopted by the State during a special legislative session or during the regular 2003 legislative session. We will review the emergency and final rules adopted by the State to ensure that the language of those rules is substantively identical to the language that we are approving today, with the exception of the correction of typographical and grammatical errors such as the two noted in Finding 19. Any substantive differences in the language are subject to further public review as a program amendment under 30 CFR 732.17. We find that the proposed revisions at CSR 38-2-5.4.b.8 regarding spillway design requirements for sediment control and other water retention structures are no less effective than the Federal requirements at 30 CFR 816/817.46(c)(2) and 816/817.49(a)(9)(ii)(C). On May 23, 1990, we approved the 24 hour event standard as being no less effective than a 6-hour event standard (55 FR 21304, 21318). Therefore, the required amendment at 30 CFR 948.16(oo) has been satisfied and can be removed. Upon promulgation of a final rule by the State, WVDEP will be required to provide a copy of it to OSM. OSM will review it to ensure that the language contained therein is identical to that language which is being approved today. Any substantive differences in the language will be subject to further public review and approval by us as a program amendment. 5. Certification of Sediment Control Structures . 30 CFR 948.16(tt) provides that West Virginia must submit proposed revisions to subsections 38-2-5.4(b)(1) and 5.4(d)(1) to require that all structures be certified as having been built in accordance with the detailed designs submitted and approved pursuant to subsection 3.6(h)(4), and to require that as-built plans be reviewed and approved by the regulatory authority as permit revisions. State Response This required program amendment should be removed. The WVDEP has developed a procedure for review of as-built certifications (This procedure is included in the WVDEP Inspection and Enforcement Handbook B copy attached) For structures with minor design changes, the inspector will submit as-built plans in accordance with 5.4.b. Minor changes are those within the construction tolerances described in 3.35 of the rules. For structures with major design changes, a permit revision in accordance with 3.28.c of the rules is required to be submitted and approved prior to certification. The “as built” certifications are after review incorporated as part of the permit and the Aas built” drawings become the design for the structure. A 1988 OSM directive (copy attached) describes the federal policy and procedures for processing construction certifications when they indicate that a structure has been constructed differently from the approved design and this OSM directive treats “as built” certifications in a manner similar to the WV program. In its response to this required amendment, quoted above, WVDEP stated that minor changes are those within the construction tolerances described in subsection 3.35 of the rules. Sediment control structures that have been constructed with minor changes that are within approved construction tolerances are, in effect, built in accordance with the approved, certified designs in the preplan. Therefore, we find that such structures are built in compliance with the requirement at CSR 38-2-5.4.b.1. which provides that sediment control structures be “constructed in accordance with the plans, criteria, and specifications set forth in the preplan.” WVDEP also stated that a permit revision is required for as-built structures with major design changes. Therefore, the requirements at CSR 38-2-3.28 concerning permit revisions would apply. In addition, CSR 38-2-5.4.b.1., concerning design and construction requirements, provides that as-built plans must be submitted by the operator and approved by WVDEP immediately following construction. The as-built plans shall indicate the original design, the extent of changes, and reference points. CSR 38-2-5.4.b.1. also provides that all sediment control or other water retention structures be certified in accordance with CSR 38-2-5.4.d. This satisfies the portion of 30 CFR 948.16(tt) that requires certification in accordance with the detailed design plans submitted and approved pursuant to subsection 3.6.h.4, which requires the Secretary to approve detailed design plans for a structure before construction begins. CSR 38-2-5.4.d.1. provides that if as-built plans are submitted, the certification shall describe how and to what extent the construction deviates from the proposed design, and the explanation and certification of how the structure will meet the performance standards. We find that the West Virginia program requires that as-built sediment control structures be reviewed and approved as permit revisions, and that all sediment control structures shall be certified. Therefore, the required amendment at 30 CFR 948.16(tt) is satisfied and can be removed. 6. Constructed Outcrop Barriers . 30 CFR 948.16(xx) provides that West Virginia must revise CSR 38-2-14.8(a) to specify design requirements for constructed outcrop barriers that will be the equivalent of natural barriers and will assure the protection of water quality and will insure the long-term stability of the backfill. State Response The State added a new provision at CSR 38-2-14.8.a.6. The new language is as follows: 14.8.a.6. Constructed outcrop barriers shall be designed using standard engineering procedures to inhibit slides and erosion to ensure the long-term stability of the backfill. The constructed outcrop barriers shall have a minimum static safety factor of 1.3, and where water quality is paramount, the constructed barriers shall be composed of impervious material with controlled discharge points. In addition, the State contended in its February 26, 2002, program submissions that: The word “inhibit” as in “to inhibit slides and erosion” is (no) less effective than the Federal standard of “prevent” at 30 CFR 816.99(a). The State statutory language for outcrop barriers at W.Va. Code 22-3-13(b)(25) requires the retention of the natural barrier to “inhibit” slides and erosion. As set forth in the Federal Register dated January 21, 1981, OSM agrees that provisions regarding natural barriers at W.Va. Code 22-3-13(b)(25) and (c)(4) were found to be consistent with Section 515(b)(25) of SMCRA. Standard Engineering Practices The constructed outcrop barriers are designed structures that have a required minimum long-term static safety factor, while the natural outcrop barriers are not designed structures and are not required to have a minimum factor of safety. Furthermore, the analysis of stability includes consideration of the material to be placed, the foundation, and site conditions. The WVDEP is in the process of developing guidelines for constructed outcrop barriers that will include: requirements for the outslope; sequencing of construction of the outcrop barrier; and minimum factor of safety when barrier is part of the sediment control system (Attachment 9). The State guideline for constructed outcrop barriers is contained in Attachment 9. It is entitled “Constructed Outcrop Barriers.” Attachment 9 provides that standard engineering practices for constructed outcrop barriers shall include the following: 1. The design of the constructed barrier shall take into consideration site conditions. 2. The construction of the outcrop barrier shall occur simultaneously with the removal of the natural barrier and be located at or near the edge of the lowest coal seam being mined. Temporary measures must be (in) place until the barrier is constructed. 3. The recommended outslope of the constructed barrier is 2v:1v (This is a typographical error and should be 2h:1v) with a static safety factor of 1.3. 4. If the proposed outslope is steeper than 2v:1v (This is a typographical error and should be 2h:1v), the constructed barrier shall be designed to have a static safety factor of 1.5. 5. If constructed barrier is part of the sediment control system (sediment ditch), the constructed barrier shall be designed to have a static safety factor of 1.5. As discussed in the January 21, 1981, Federal Register (46 FR 5919) notice, State law provides for the use of constructed outcrop barriers to prevent slides and erosion, while Section 525(b)(25) of SMCRA requires the retention of a natural barrier. It was determined in 1981 that the State's alternative for a constructed barrier may be more stringent than the SMCRA requirement. However, at the time, the State program lacked specific criteria for the design of constructed outcrop barriers that will ensure that their performance in preventing slides and erosion would be more effective than that of a natural barrier. In April 1983, West Virginia submitted specific design criteria for outcrop barriers. The approval of the design criteria for constructed outcrop barriers was announced in the November 16, 1983, Federal Register notice (48 FR 52037). However, the design criteria were inadvertently deleted from the State program. As discussed in the October 4, 1991, Federal Register notice (56 FR 50265), we required the State to specify design requirements for constructed outcrop barriers. We later published a notice in the February 21, 1996, Federal Register (61 FR 6525) which announced the modification of the required amendment at 30 CFR 948.16(xx) requiring that the State amend its program at CSR 38-2-14.8.a to specify design requirements of outcrop barriers that will be equivalent to natural barriers and will assure the protection of water quality and ensure the long-term stability of the backfill. The proposed rule and the new guideline are intended to satisfy that requirement. Section 22-3-13(b)(25) of the Code of West Virginia (W. Va. Code) provides that constructed barriers may be allowed under specified circumstances, provided that, at a minimum, the constructed barrier must be of sufficient width and height to provide adequate stability and the stability factor must equal or exceed that of the natural outcrop barrier. Furthermore, where water quality is paramount, the constructed barrier must be composed of impervious material with controlled discharge points. As discussed above, the revised rule at CSR 38-2-14.8.a.6 further provides that constructed outcrop barriers shall be designed using standard engineering procedures to inhibit slides and erosion to ensure the long-term stability of the backfill. The constructed outcrop barriers shall have a minimum static safety factor of 1.3, and where water quality is paramount, the constructed barriers shall be composed of impervious material with controlled discharge points. The proposed rule was included in WVDEP's program amendment of May 2, 2001 (Administrative Record Number WV-1209). The promulgation of CSR 38-2-14.8.a.6 was authorized by Enrolled Committee Substitute for House Bill 2663. The bill was passed by the Legislature on April 14, 2001, and signed into law by the Governor on May 2, 2001 (Administrative Record Number WV-1210). In addition, WVDEP has proposed a guideline that further clarifies what standard engineering practices will be followed when allowing for the removal of a natural barrier and constructing an outcrop barrier. Approval of the proposed guideline is being made with the understanding that the State will correct the typographical errors noted above. We find that the specific design criteria described above will ensure that constructed outcrop barriers will be as effective as natural barriers in preventing slides and erosion. In addition, we find that the proposed rule at CSR 38-2-14.8.a.6, together with the proposed guideline containing standard engineering practices for the design of constructed outcrop barriers, are in accordance with Section 515(b)(25) of SMCRA. Therefore, the required program amendment codified at 30 CFR 948.16(xx) regarding constructed outcrop barriers is satisfied with the adoption of the proposed rule and guideline and can be removed. 7. Unjust Hardship Criterion. 30 CFR 948.16(nnn) provides that West Virginia must submit either a proposed amendment or a description of an amendment to be proposed, together with a timetable for adoption, to revise Section 22B-1-7(d) to remove unjust hardship as a criterion to support the granting of temporary relief from an order or other decision issued under Chapter 22, Article 3 of the W. Va. Code. State Response The WVDEP is proposing language (Attachment 3) to exclude unjust hardship as criteria to support the granting of temporary relief under WV Code 22-3. In its February 26, 2002, submission, WVDEP included Attachment 3. Attachment 3 contains a proposed revision to W. Va. Code Section 22B-1-7, Appeals to boards. The attachment consists of additions and deletions to language at paragraphs (d) and (h) of Section 22B-1-7 and identifies how these statutory provisions are to be amended. Only paragraph (d) pertains to the required amendment relating to unjust hardship. WVDEP proposes to amend paragraph (d) by adding a proviso that provides as follows: “Provided; however, the criterion of unjust hardship cannot be used to support the granting of temporary relief for an order or other decision issued under article three, chapter twenty-two of this code.” The proposed language was submitted to the Legislature for consideration. On February 27, 2002, the proposed language was modified and reported out of committee as Senate Bill 735. The revised language reads as follows: “Provided, That unjust hardship shall not be grounds for granting a stay or suspension of such order, permit or official action for an order issued pursuant to article three, chapter twenty-two of this code.” Engrossed Senate Bill 735 passed the Senate on March 1, 2002, and was reported to the House Judiciary Committee where it died in committee without further action by the Legislature. As announced in the February 21, 1996, Federal Register (61 FR 6516) on we did not approve the language at Section 22B-1-7(d) concerning allowing temporary relief where the appellant demonstrates that the executed decision appealed from will result in the appellant suffering an “unjust hardship,” because the language is inconsistent with Sections 514(d) and 525(c) of SMCRA, which do not allow temporary relief to be granted based on a showing of unjust hardship. As discussed in the July 14, 1998, Federal Register notice (63 FR 37775), our earlier required amendment regarding unjust hardship was modified based on a settlement agreement in West Virginia Mining and Reclamation Association v. Babbitt, Civil Action No. 2:96-0371 (S.D. W.Va., July 11, 1997). We clarified our earlier decision by stating that Section 22B-1-7(d) is not approved only to the extent that it includes unjust hardship as a criterion to support the granting of temporary relief from an order or other decision issued under Chapter 22, Article 3 of the W. Va. Code, which is the State counterpart to SMCRA. WVDEP has informed the Surface Mine Board that unjust hardship is an invalid basis for granting temporary relief for SMCRA purposes. In our meeting with the WVDEP on January 15, 2002, WVDEP stated that, to its knowledge, the Surface Mine Board has not used this criterion, and the State has never asked that it be a consideration in granting a stay or suspending an order pursuant to W. Va. Code 22B-1-7(d) (Administrative Record Number WV-1271). On October 26, 1988, the West Virginia Supreme Court of Appeals in Canestraro v. Faerber ruled that, “When a provision of the West Virginia Surface Coal Mining and Reclamation Act, W.Va. Code 22A-3-1 et seq. , is inconsistent with Federal requirements in the Surface Mining Control and Reclamation Act, 30 U.S.C. § 1201 et seq. , the State Act must be read in a way consistent with the Federal Act.” See Canestraro v. Faerber, 179 W. Va. 793, 374 S.E.2d 319 (1988) (Administrative Record Number WV-761). In another decision rendered on July 12, 1996, the West Virginia Supreme Court of Appeals held that, pursuant to 30 CFR 731.17(g), whenever changes to laws or regulations that make up the approved State program regarding surface mining reclamation are proposed by the State, no such change to the laws or regulations shall take effect for purposes of a State program until approved as an amendment by OSM. In addition, the Supreme Court ruled that a State regulation enacted pursuant to the West Virginia Surface Coal Mining and Reclamation Act (WVSCMRA), W. Va. Code 22A-3-1 to 40 (1993), [now West Virginia Code 22-3-1 to 32 (1994 and Supp.1995)], must be read in a manner consistent with Federal regulations enacted in accordance with SMCRA, 30 U.S.C. 1201 to 1328 (1986). See Charles Schultz v. Consolidation Coal Company, 197 W.Va. 375, 475 S.E.2d 467 (1996) (Administrative Record Number WV-1038). As discussed above, we have previously ruled that West Virginia's temporary relief provision at W. Va. Code Section 22B-1-7(d) cannot be approved “to the extent that the unjust hardship criterion supports the granting of temporary relief from an order or other decision issued under Chapter 22, Article 3 of the West Virginia Code” (63 FR 37775; July 14, 1998). The effect of that decision is that the unjust hardship criterion at W. Va. Code 22B-1-7(d) is not part of the State's approved regulatory program (63 FR 37775). Furthermore, as mentioned above, WVDEP has never asked that unjust hardship be a consideration by the Surface Mine Board in granting a stay or suspending an order pursuant to W. Va. Code 22B-1-7(d), and it has informed the Board that it should never be a basis for granting temporary relief under the approved State program. In addition, the West Virginia Supreme Court of Appeals has held that “when there is a conflict between the Federal and State provisions, the less restrictive State provision must yield to the more stringent Federal provision. * * * Canestraro, 374 S.E.2d at 321. In light of our disapproval of the statutory language that is the subject of this required amendment, and in light of the principles articulated in Canestraro, and Schultz, we now believe that the concerns identified in the required amendment at 30 CFR 948.16(nnn) have been satisfied, thereby rendering the required amendment unnecessary. Therefore, we are removing it. However, to avoid confusion or misinterpretation of the approved State regulatory program, we recommend that the statutory provision discussed above be deleted. 8. Economic Feasibility. 30 CFR 948.16(ooo) provides that West Virginia must submit either a proposed amendment or a description of an amendment to be proposed, together with a timetable for adoption, to revise W. Va. Code 22B-1-7(h) by removing reference to Article 3, Chapter 22. State Response In our meeting with the WVDEP on January 15, 2002, the WVDEP stated that W. Va. Code 22B-1-7(h) applies only to the Environmental Quality Board, which hears Clean Water Act appeals. In its February 26, 2002, submittal, WVDEP provided proposed language (at Attachment 3) to delete the reference to Article 3 Chapter 22 from W. Va. Code 22B-1-7(h). The language was included in Engrossed Senate Bill 735 and reported out of the Judiciary Committee on February 27, 2002. Despite WVDEP's good efforts, the bill did not pass the Legislature in the 2002 legislative session. We have previously ruled that West Virginia's administrative appeals provision at W. Va. Code 22B-1-7(h) could not be approved “only to the extent that it references Article 3, Chapter 22 of the W. Va. Code.” (63 FR 37774, 37775; July 14, 1998). The effect of that decision is that the reference to Article 3 Chapter 22 at W. Va. Code 22B-1-7(h) is not part of the approved West Virginia program. This disapproved provision should never be implemented by the State because the West Virginia Supreme Court of Appeals has held that “when there is a conflict between the federal and state provisions, the less restrictive state provision must yield to the more stringent federal provision. * * * Canestraro, 374 S.E.2d at, 321. As noted in Finding 7, the West Virginia Supreme Court of Appeals also held in Schultz that no change in a State surface mining law or regulation can take effect for purposes of a State program until approved by OSM, and State surface mining reclamation regulations must be read in a manner consistent with Federal regulations enacted in accordance with SMCRA, Schultz, 475 S.E.2d 467. (Administrative Record Number WV-1038). Because we have previously disapproved the language that is the subject of this required amendment, and because of the principle articulated in Canestraro and Schultz, we conclude that the required amendment at 30 CFR 948.16(ooo) has been satisfied. Therefore, we are removing it. 9. Bond Release. 30 CFR 948.16(qqq) provides that West Virginia must revise CSR 38-2-2.20, or otherwise revise the West Virginia program to clarify that a bond may not be released where passive treatment systems are used to achieve compliance with applicable effluent limitations. State Response CSR 38-2-12.2.e was amended to provide as follows. 12.2.e. Notwithstanding any other provisions of this rule, no bond release or reduction will be granted if, at the time, water discharged from or affected by the operation requires chemical or passive treatment in order to comply with applicable effluent limitations or water quality standards. Measures approved in the permit and taken during mining and reclamation to prevent the formation of acid drainage shall not be considered passive treatment; Provided, That the Director may approve a request for Phase I but not Phase II or III, release if the applicant demonstrates to the satisfaction of the Director that either. * * * CSR 38-2-12.2.e was amended, in effect, by prohibiting bond release if water discharged from the permit area requires chemical or passive treatment. In addition, a new sentence is added that clarifies that measures approved in the permit and taken during mining and reclamation to prevent the formation of acid drainage shall not be considered passive treatment. We find that as amended, the provision satisfies the required program amendment codified at 30 CFR 948.16(qqq) which can, therefore, be removed. We also find that the new language which clarifies that measures approved in the permit and taken during mining and reclamation to prevent the formation of acid drainage shall not be considered passive treatment, does not render the West Virginia program less effective than the Federal regulations. Such measures might include, for example, selective placement of acid-generating materials in the backfill, placing limestone or other alkaline-generating materials in the backfill in close proximity to acid-generating materials, and the use of underdrains to prevent groundwater from wetting acid-generating materials. Measures such as these are taken to prevent the formation of acid discharges, and not to treat such discharges once they are discovered. Therefore, we find the new provision does not render the West Virginia program less effective than the Federal regulations concerning bond release at 30 CFR 800.40, and the provisions concerning hydrologic balance protection at 30 CFR 816.41 and the backfilling and grading requirements at 30 CFR 816/817.102(f) and can be approved. 10. Water Supply Replacement Waiver. 30 CFR 948.16(sss) provides that West Virginia must submit either a proposed amendment or a description of an amendment to be proposed, together with a timetable for adoption, to revise CSR 38-2-14.5(h) and W. Va. Code 22-3-24(b) to clarify that the replacement of water supply can only be waived under the conditions set forth in the definition of “Replacement of water supply,” paragraph (b), at 30 CFR 701.5. State Response In our January 15, 2002, meeting with WVDEP, State officials said they would reevaluate the Federal language set forth in the definition of “Replacement of water supply” paragraph (b), at 30 CFR 701.5. Subsequently, in its March 8, 2002, letter, WVDEP stated that it had reevaluated its water replacement and waiver requirements at W. Va. Code 22-3-24 and in its rules. WVDEP stated that it plans to propose changes for the 2003 regular legislative session that would clarify that replacement of an affected water supply that is needed for the existing land use or for the post-mining land use cannot be waived. WVDEP stated that historically, under the State program, replacement waivers are not sought nor granted for such water supplies. In addition, WVDEP stated that, until it amends its program explicitly to be consistent with the Federal water replacement requirement, it will only allow water replacement waivers in accordance with the provisions in the definition of “Replacement of water supply,” paragraph (b), at 30 CFR 701.5. W. Va. Code 22-3-24(b) states that “[a]ny operator shall replace the water supply of an owner of interest in real property who obtains all or part of the owner's supply of water for domestic, agricultural, industrial or other legitimate use from an underground or surface source where the supply has been affected by contamination, diminution or interruption proximately caused by the surface-mining operation, unless waived by the owner.” CSR 38-2-14.5(h) limits the availability of a waiver. It provides that “[a] waiver of water supply replacement granted by a landowner as provided in subsection (b) of section 24 of the Act shall apply only to underground mining operations, provided that a waiver shall not exempt any operator from the responsibility of maintaining water quality.” The limitation of maintaining water quality is not sufficient to be no less effective than the corresponding Federal requirements. 30 CFR 701.5 defines the term “Replacement of water supply.” Part (b) of the definition states that replacement requirements may be satisfied by demonstrating that a suitable alternative water source is available and could feasibly be developed, but only “[i]f the affected water supply was not needed for the land use in existence at the time of loss, contamination, or diminution, and if the supply is not needed to achieve the postmining land use.* * *” Thus, under Federal regulations, actual replacement of water supply is required unless consideration is given to effect on premining and postmining land uses. West Virginia's waiver provision contains no equivalent consideration. Federal law is therefore more restrictive and the State regulations are less effective. We have previously ruled that West Virginia's water replacement waiver provision could not be approved “to the extent that* * * [it] would not be implemented in accordance with the definition of “Replacement of water supply” at 30 CFR 701.5.” (61 FR at 6524, February 21, 1996). In addition, OSM required that the West Virginia program be further amended to clarify that under W. Va. Code Section 22-3-24(b) and CSR 38-2-14.5.h, the replacement of water supply can only be waived under the conditions set forth in the definition of “Replacement of water supply at 30 CFR 701.5(b). In the February 9, 1999, Federal Register , OSM announced the approval of the State's definition of replacement of water supply at W.Va. Code 22-3-3(z), but we required that the State adopt a counterpart to 30 CFR 701.5(b) (64 FR at 6202-6203). As noted above, the WVDEP has committed to allowing waivers only in a manner consistent with the Federal definition. This commitment complies with the mandate of the West Virginia Supreme Court of Appeals, which has held that “when there is a conflict between the federal and state provisions, the less restrictive state provision must yield to the more stringent federal provision* * * Canestraro, 379 S.E.2.d, at 321. As noted above in Finding 7, the West Virginia Supreme Court of Appeals has ruled that “[w]hen a provision of the West Virginia Surface Coal Mining and Reclamation Act, W.Va. Code 22A-3-1 et seq. , is inconsistent with Federal requirements in the Surface Mining Control and Reclamation Act, 30 U.S.C. § 1201 et seq. , the State Act must be read in a way consistent with the Federal Act.” Canestraro, 374 S.E.2d at 321 (Administrative Record Number WV-761). In addition, State rules must be read in a manner consistent with Federal regulations, Schultz. As noted above in Finding 7, the West Virginia Supreme Court of Appeals also held in Schultz that no change in a State surface mining law or regulation can take effect for purposes of a State program until approved by OSM, and State surface mining reclamation regulations must be read in a manner consistent with Federal regulations enacted in accordance with SMCRA, Schultz, 475 S.E.2d 467. (Administrative Record Number WV-1038). Because of the State's commitment to comply with the more restrictive Federal waiver requirement, and because of the principles established in Canestraro and Schultz, we conclude that the required amendment at 30 CFR 948.16(sss) has been satisfied. Therefore, we are removing it. We recommend that the provision be included in the program at some future date to avoid confusion or misinterpretation. 11. Existing Structures and Approximate Original Contour (AOC). 30 CFR 948.16(vvv)(1) provides that West Virginia must amend its program to be consistent with 30 CFR 701.11(e)(2) by clarifying that the exemption at CSR 38-2-3.8(c) does not apply to the requirements to restore the land to AOC. State Response This required program amendment should be removed. The State regulation in subsection 3.8.c. was amended to not apply to new and existing coal waste facilities and was submitted to the Office of Surface Mining on March 17, 2000, as a program amendment. A copy of the revised subsection 3.8.c. is attached and is pending OSM action. The State saw no need to add language about approximate original contour to regulation at subsection 3.8(c) since the WV Surface Coal Mining and Reclamation Act performance standard at Section 22-3-13(b)(3) is clear about the requirement to restore the approximate original contour with respect to surface mines. On August 18, 2000 (65 FR 50413), we approved the State's change which clarifies that the exemption at CSR 38-2-3.8.c. does not apply to new and existing coal waste facilities. In that same notice, we revised 30 CFR 948.16(vvv)(1) by deleting the requirement to clarify that the exemption at CSR 38-2-3.8(c) does not apply to the requirements for new and existing coal mine waste disposal facilities. However, we continued to require at revised 30 CFR 948.16(vvv)(1) that the State clarify that the exemption at CSR 38-2-3.8(c) does not apply to the requirement to restore the land to approximate original contour (AOC). In its response quoted above, WVDEP stated that Section 22-3-13(b)(3) of the West Virginia Surface Coal Mining and Reclamation Act is clear about the requirement to restore the AOC with respect to surface mines. W.Va. Code at 22-3-13(b)(3) requires surface mines to be restored to AOC, except those which receive a variance under W.Va. Code 22-3-13(c) concerning mountaintop removal mining operations, and for those situations where the overburden is thin and the resulting material is insufficient to achieve AOC. In addition, W.Va. Code 22-3-13(d) and (e) provide for variances from AOC for steep slope mining operations under certain circumstances. Given this clarification, we are approving the State's response to the required amendment at 30 CFR 948.16(vvv)(1) to the extent that the exemption at CSR 38-2-3.8(c) does not apply to the requirement to restore the land to AOC. Therefore, to the extent that CSR 38-2-3.8(c) is limited to existing facilities and does not apply to the requirement to restore the land to AOC, we find that the required amendment codified at 30 CFR 948.16(vvv)(1) is satisfied and can be removed. 12. Certification of Haulroads. 30 CFR 948.16(vvv)(2) provides that West Virginia must amend CSR 38-2-4.12 to reinstate the following deleted language: “and submitted for approval to the Director as a permit revision.” State Response The WVDEP has established guidelines (Series 20 Effective 1-97, page 22 of the I&E Handbook, Attachment 4) for approval of minor revisions to the original design. Minor deviations from the approved plan for haulroads (width, grade, etc.) are permissible as long they are within the construction tolerance specified in 38-3.35 [38-2-3.35]. The provision at CSR 38-2-4.12 concerns the certification of haulroads. However, the procedures that were initially submitted to OSM only applied to the approval of as-built certifications for drainage systems. During the January 15, 2002, meeting WVDEP agreed to reevaluate this issue and, if necessary, amend its policy to make it applicable to haulroads (Administrative Record Number WV-1271). On February 26, 2002, WVDEP submitted revised guidelines for the approval of minor revisions to the original design of haulroads (Administrative Record Number WV-1276). The guidelines are set forth in Attachment 4. As noted above, the State clarified that minor deviations from the approved plan for haulroads are permissible so long as they are within the construction tolerance limits specified in CSR 38-2-3.35, not 38-3.35 as quoted above. Attachment 4 is entitled, “Minor Revisions Approvable by Field Level Personnel” and contains the following language: Purpose: Establish guidelines for approval of minor adjustments to original proposals. Policy/Procedures: Minor revisions to original designs must be within the construction tolerances specified in 38-2-3.35. If not, a permit revision is required. The following are examples of minor revisions that are approvable at the field inspector level. 1. Minor drainage structure configuration changes (i.e., round vs. square, spillway one one side instead of the other, etc.) as long as the required sediment storage capacity is maintained. (Approved by virtue of the inspector signing off on the as-built certification) 2. Minor road width/slope configuration (as long as the width/slope do not compromise safety considerations). (Approved as an as-built certification) 3. Additional sediment control capacity (i.e., additional sumps on roads, pre sumps in front of sediment ponds). (Approved as an as-built certification) 4. Species substitution on planting plans (i.e., substituting legume for legume, hardwoods for hardwoods, etc.). Approved by letter submittal and inspector signs off on it. 5. Minor bench size changes on fills (i.e., wider than twenty (20) feet. (Approved on the final certification) 6. Outlets/spillways constructed of different material than originally proposed. (Approved on the as-built certification) 7. Additional rock flumes on backfill areas (letter approval when constructed). 8. Minor encroachment of the permit boundary (i.e., slips, shootovers, etc.). These need to be covered with a notice of violation (NOV) then shown on a progress map or on the final map. The acreage involved has to be included in the disturbed acreage number on the Phase I release application, and the bond reduction calculated accordingly. Keep in mind that some of these changes need to be delineated on the “map of record.” This can be done by requesting a progress map to accompany the certification or letter, or at a mid term review, or at the time of final map submittal (Phase I release). As described in the July 24, 1996, Federal Register notice (61 FR 38384), we approved West Virginia's haulroad certification requirements, except to the extent that the Director (now Secretary) is removed from the responsibility of reviewing permit revisions as required under 30 CFR 774.11(c). In addition, we required the State to reinstate the following deleted language at CSR 38-2-4.12, “and submitted for approval to the Director as a permit revision.” CSR 38-2-3.35 provides that all grade measurements and linear measurements in the State's rules shall be subject to a tolerance of two (2) percent. All angles in the rules shall be measured from the horizontal and shall be subject to a tolerance of five (5) percent. Provided, however, this allowable deviation from the approved plan does not affect storage capacity and/or performance standards. We announced our approval of these requirements in the February 9, 1999, Federal Register (64 FR 6208). The approved tolerances pertain to the amount of allowed variance between the approved designs in the permit application and the “as built” measurements of those designs. Only Item (2) of the proposed guidelines described above relates to haulroads. As noted in Attachment 4, a minor road width/slope configuration, as long as the width/slope revision is within the construction tolerance limits specified in CSR 38-2-3.35 and does not compromise safety considerations, can be approved as an as-built certification by field personnel. All other as-built haulroad configurations must be approved by the Secretary as permit revisions. Neither SMCRA nor the Federal regulations provides for the approval of as-built certifications that are within the construction tolerance limits as set forth in CSR 38-2-3.35. However, we find that the existing State requirements regarding as-built certifications, together with the proposed State clarification regarding minor changes in the width and/or slope of haulroads, as described in Item (2) of Attachment 4, appear reasonable and are not inconsistent with SMCRA or the Federal regulations. Because the State has clarified that only minor deviations from the approved designs for haulroads are permissible as long as they are within the construction tolerance limits specified at CSR 38-2-3.35, and all other as-built haulroad configurations that exceed those limits require the Secretary's approval as permit revisions, we are approving the State's proposal and removing the required amendment at 30 CFR 948.16(vvv)(2) which requires that all as-built certifications for haulroads be submitted and approved as permit revisions. This approval is limited to minor as-built haulroad certifications as described herein and does not apply to the other proposed minor revisions that field personnel may authorize as described in Attachment 4, “Minor Revisions Approvable by Field Level Personnel,” Series 20, page 22 of the Inspection and Enforcement Handbook. The other revisions mentioned therein do not pertain to this rulemaking. 13. Slurry Impoundments. 30 CFR 948.16(vvv)(3) provides that West Virginia must amend its program by clarifying that the requirements at CSR 38-2-5.4(c) also apply to slurry impoundments. State Response The WVDEP is proposing a change to subsection 5.4.d.4 (Attachment 5) which clarifies that non-MSHA size coal processing waste dams and embankments will be certified by a registered professional engineer as indicated in 30 CFR 780.25. In the July 24, 1996, Federal Register (61 FR 38384), we found that the removal of the words, “which may include slurry impoundments” from CSR 38-2-5.4.c. made it unclear as to whether slurry impoundments are subject to the impoundment requirements at CSR 38-2-5.4.c. If CSR 38-2-5.4.c. does not apply to slurry impoundments (which appeared to be the purpose of the deletion), the provision is rendered less effective than 30 CFR 816.49 and 817.49. The State's existing rules at CSR 38-2-22.4.c. governing small impoundments state that coal refuse sites which result in impoundments which are not subject to the Dam Control Act or the Federal Mine Health and Safety Act shall be designed, constructed, and maintained subject to the requirements of this subsection and subsections CSR 38-2-5.4 and 22.5.j.6. By referencing subsection 5.4, the required amendment at 30 CFR 948.16(vvv)(3) appears to be satisfied in so far as it is clear that all non-MSHA size or small coal refuse impoundments must comply with the State's impoundment requirements at subsection 5.4. However, because CSR 38-2-5.4.d allows certain impoundments to be certified by a registered professional engineer or a licensed land surveyor, we questioned whether the State's existing requirements were as effective as the Federal rules. The Federal requirements at 30 CFR 780.25(a)(3)(i) provides that all coal refuse impoundments, regardless of size, must be certified by a registered professional engineer. In addition, it was unclear if coal refuse dams and embankments which are subject to the Dam Control Act or the Federal Mine Health and Safety Act are subject to the impoundment requirements at CSR 38-2-5.4(c). On February 26, 2002, WVDEP submitted the proposed revision described above to its program (Administrative Record Number WV-1276). Attachment 5 contains a proposed revision to CSR 38-2-5.4.d. According to the State, this provision is to be amended at subdivision 38-2-5.4.d.3. by adding the words “except all coal processing waste dams and embankments covered by subsection 22.4.c. shall be certified by a registered professional engineer.” As amended, CSR 38-2-5.4.d.3. would read as follows: Design and construction certification of embankment type sediment control structures may be performed only by a registered professional engineer or licensed land surveyor experienced in construction of embankments “except all coal processing waste dams and embankments covered by subsection 22.4.c. shall be certified by a registered professional engineer.” The State submitted the proposed rule changes to the Legislature in February 2002. However, because of a procedural error, the Legislature did not adopt the revised language. To correct this oversight, on April 19, 2002, WVDEP filed these changes with the Secretary of State as emergency rules. According to State law, emergency rules can remain in effect for not more than 15 months. Final legislative rules are to be adopted by the State during a special legislative session or during the regular 2003 legislative session. We will review the emergency and final rules adopted by the State to ensure that the language of those rules is substantively identical to the language that we are approving today, with the exception of the correction of typographical and grammatical errors such as the two noted in Finding 19. Any substantive differences in the language are subject to further public review as a program amendment under 30 CFR 732.17. As discussed above, CSR 38-2-22.4.c. clarifies that CSR 38-2-5.4 applies to small, non-MSHA size coal refuse dams and embankments. In addition, the proposed revision at CSR 38-2-5.4.d.3 clarifies that all small coal refuse dams and embankments must be certified by a registered professional engineer. Furthermore, CSR 38-2-5.4.d.4. provides that the design and construction of coal refuse impoundments meeting the MSHA size or other requirements at 30 CFR 77.216(a) may only be performed by a registered professional engineer. Given that there are design and construction certification requirements for both MSHA and non-MSHA size coal refuse impoundments at CSR 38-2-5.4.d, the structure of this section implies that all coal refuse impoundments must comply with the impoundment requirements at CSR 38-2-5.4.c. In addition, CSR 38-2-22.1 requires that all coal slurry impoundments, including MSHA size impoundments, must comply with all applicable requirements of the State program. These would include those requirements contained in CSR 38-2-5.4. In accordance with 30 CFR 780.25(a)(3)(i) and 784.16(a)(3)(i), we are approving the proposed revision at CSR 38-2-5.4.d.3. which provides that all coal processing waste dams and embankments covered by subsection 22.4.c. shall be certified by a registered professional engineer. Furthermore, given that the State has clarified that slurry impoundments, regardless of size, are subject to the requirements of CSR 38-2-5.4.c., we find that the required amendment at 30 CFR 948.16(vvv)(3) is satisfied and can be removed. Upon promulgation of a final rule by the State, WVDEP will be required to provide a copy of it to OSM. OSM will review it to ensure that the language contained therein is identical to that language which is being approved today. Any substantive differences in the language will be subject to further public review and approval by us as a program amendment. 14. Coal Refuse Disposal in the Backfill. 30 CFR 948.15(vvv)(4) provides that West Virginia must amend CSR 38-2-14.15(m), or otherwise amend its program to require compliance with 30 CFR 816/817.81(b), (d), and (e) regarding coal refuse disposal, foundation investigations and emergency procedures and to clarify that where the coal processing waste proposed to be placed in the backfill contains acid-or toxic-producing materials, such material must not be buried or stored in proximity to any drainage course such as springs and seeps, must be protected from groundwater by the appropriate use of rock drains under the backfill and along the highwall, and be protected from water infiltration into the backfill by the use of appropriate methods such as diversion drains for surface runoff or encapsulation with clay or other material of low permeability. State Response This required program amendment should be removed. Coal refuse placed in the backfill pursuant to subsection 14.15(m) is placed into the mine workings or excavation areas. This placement, when done in accordance with the State's backfilling and grading, stability and toxic material handling plan requirements, is consistent with the provisions of 30 CFR 816.81 and 817.81. In our January 15, 2002, meeting with WVDEP (Administrative Record Number WV-1271), State officials agreed to clarify how the State's existing rules require that coal processing waste outside the permit area must be disposed of in accordance with the standards at 30 CFR 816/817.81(b). In addition, WVDEP would clarify how its rules require sufficient foundation investigations as required by 30 CFR 816/817.81(d). Further, WVDEP agreed to provide us with an explanation of how its other program requirements regarding underdrains, diversions, and toxic handling plans apply to the disposal of coal refuse as allowed by CSR 38-2-14.14.m. Finally, they noted that the State's emergency procedures at CSR 38-2-14.15.m.2. are no less effective than the Federal requirements at 30 CFR 816/817.81(e). Material from Outside the Permit Area: In its February 26, 2002, response State officials assured us that WVDEP requires the permittee to identify the source of the coal refuse to be disposed of in the backfill in addition to the laboratory testing. Any changes in the source of the coal refuse require the approval of the Secretary. The State noted that its rules at CSR 38-2-14.15.m.2. clearly require that prior approval of the Secretary is necessary before placing coal refuse material in the backfill, regardless of where the material originates. This assurance from the State and the existing requirements at CSR 38-2-14.15.m.2. ensure that, as required by 30 CFR 816/817.81(b), coal refuse from activities located outside the permit area must be approved by the Secretary, and the approval must be based on a showing that the disposal will be in accordance with the standards set forth in CSR 38-2-14.15.m. Foundation Investigations: According to State officials, the part of the required program amendment relating to foundation investigations is satisfied due to the requirements at CSR 38-2-14.15.a. and 14.15.m. Those requirements provide that the backfill must be designed and certified by a registered professional engineer so that a minimum long-term static safety factor of 1.3 is achieved for the final graded slope. All stability analyses include properties of the material to be placed, properties of the foundation (whether on solid bench or backfill) and include site conditions that will affect stability. The State requirements at CSR 38-2-14.15.a. and 14.15.m. ensure that sufficient foundation investigations, including any necessary laboratory testing of foundation material, will be performed prior to placing any coal refuse in a backfill as required by 30 CFR 816/817.81(d). Acid Material Handling Plan: In its February 26, 2002, response WVDEP clarified that coal processing waste cannot be placed in the backfill pursuant to CSR 38-2-14.15.m., unless it is non-acid and/or non-toxic producing or is rendered non-acid and/or non-toxic producing pursuant to subsection 14.15.m.2. CSR 38-2-14.15.m.2. provides the following: The coal processing waste will not be placed in the backfill unless it has been demonstrated to the satisfaction of the Secretary that: The coal processing waste to be placed based upon laboratory testing to be non-toxic and/or non-acid producing; or An adequate handling plan including alkaline additives has been developed and the material after alkaline addition is non-toxic and/or non-acid producing. WVDEP officials stated that the rules at subsection 14.6. apply to the handling of all acid producing material. CSR 38-2-14.6.a. requires that all acid-forming or toxic-forming material be handled and treated in accordance with the approved toxic handling plan. According to State officials, all coal refuse must be rendered non-toxic or non-acid producing before it is placed in the backfill. Furthermore, any alkaline addition that may be required must occur prior to placement in the backfill. In addition, CSR 38-2-14.6.b. provides that, “[a]cid-forming or toxic-forming material shall not be buried or stored in proximity to a drainage course or groundwater system.” Therefore, when a toxic handling plan for the disposal of acid-forming or toxic-forming materials is submitted under CSR 38-2-14.15.m.2.B., the plan must identify whether or not a drainage course or groundwater system exists in proximity to the burial site. If such a drainage course or groundwater system exists in proximity to the burial site, the Secretary must disapprove the burial of the acid-producing or toxic-producing material at the proposed site. This requirement ensures that where the coal processing waste proposed to be placed in the backfill contains acid- or toxic-producing materials, such materials cannot be buried or stored in proximity to any drainage course such as springs and seeps as required by 30 CFR 816/817.83(a) and 30 CFR 816/817.102(e). In addition, we note that CSR 38-2-14.16.g. also provides that the disposal of coal processing waste and underground development waste in the mined out area of previously mined areas must be done in accordance with Section 22, except that a long-term static safety factor of 1.3 must be achieved. Subsection 14.16.g. ensures that coal refuse placed in the backfill on previously mined areas is protected from groundwater by the appropriate use of rock drains under the backfill and along the highwall and from water infiltration into the backfill by the use of appropriate methods such as diversion drains for surface runoff or encapsulation with clay or other material of low permeability. Subsection 14.16.g. contains requirements regarding the disposal of coal processing waste in the backfill that are no less effective than the Federal requirements at 30 CFR 816/817.83(a) and 30 CFR 816/817.102(e) Emergency Procedures: 30 CSR 38-2-14.15.m.2. provides that a qualified registered professional engineer, experienced in the design of similar earth and waste structures, shall certify the design of the disposal facility. If any examination or inspection discloses that a potential hazard exists, the Secretary shall be informed promptly of the finding and of the emergency procedures formulated for public protection and remedial action. If adequate procedures cannot be formulated or implemented, the Secretary shall be notified immediately, and the Secretary will then notify the appropriate agencies that other emergency procedures are required to protect the public. Subsection 14.15.m.2. contains emergency procedures that are substantively identical to the Federal requirements at 30 CFR 816/817.81(e). As discussed above, we find that CSR 38-2-14.15.m.2. provides that the disposal of coal processing waste outside the permit area must be disposed of in accordance with the standards at CSR 38-2-14.15.m., as required by 30 CFR 816/817.81(b). The State's backfilling requirements at subsections 14.15.a. and 14.15.m. ensure that sufficient foundation investigations, including any necessary laboratory testing of foundation material, will be performed prior to placing any coal refuse in a backfill as required by 30 CFR 816/817.81(d). The State program provisions at CSR 38-2-14.15.m.2., CSR 38-2-14.6. and CSR 38-2-14.16.g. prohibit the burial or storage of acid-forming or toxic-forming materials in the backfill in proximity to a drainage course or groundwater system and ensure the protection of acid- or toxic-forming material from groundwater or from infiltration into the backfill as required by 30 CFR 816/817.83(a) and 30 CFR 816/817.102(e). Finally, CSR 38-2-14.15.m.2. contains emergency procedures that are no less effective than the Federal emergency procedures at 30 CFR 816/817.81(e). Therefore, we find that the required program amendment codified at 30 CFR 948.16(vvv)(4) relating to the disposal of coal refuse in the backfill has been satisfied and can be removed. 15. Subsidence Control Plan. 30 CFR 948.16(zzz) provides that West Virginia must submit either a proposed amendment or a description of an amendment to be proposed, together with a timetable for adoption to revise 38-2-3.12.a.1., or otherwise amend the West Virginia program to require that the map of all lands, structures, and drinking, domestic and residential water supplies which may be materially damaged by subsidence show the type and location of all such lands, structures, and drinking, domestic and residential water supplies within the permit and adjacent areas, and to require that the permit application include a narrative indicating whether subsidence, if it occurred, could cause material damage to or diminish the value or reasonably foreseeable use of such structures or renewable resource lands or could contaminate, diminish, or interrupt drinking, or residential water supplies. State Response In its May 2, 2001, submittal, the State amended CSR 38-2-3.12.a.1. concerning subsidence control plans by adding the words, “a narrative indicating” to the survey and map requirements of this subsection. As amended, this provision requires a survey, map, and a narrative indicating whether or not subsidence could cause material damage to the identified structures and water supplies. We find that the addition of the words “a narrative indicating” satisfies the narrative requirement codified at 30 CFR 948.16(zzz). In our January 15, 2002, meeting with WVDEP, State officials agreed to modify its permit application to ensure that the identification of structures would also indicate the type of structures being identified. In its February 26, 2002, letter, WVDEP submitted (at Attachment 6) a portion of its permit application that it had modified to require the identification of the location and type of structures, streams, renewable resource lands and water works. Therefore, the applicant must identify both the location and type of structures within a 30-degree angle of draw. With that submittal, the State has satisfied the requirement that the map show the location and type of structures that could be materially damaged by subsidence. We find that the revised permit application together with revised CSR 38-2-3.12.a.1. satisfy the requirements at 30 CFR 948.16(zzz) and can be approved. Therefore, 30 CFR 948.16(zzz) can be removed. 16. Water Supply Survey. 30 CFR 948.16(aaaa) provides that West Virginia must submit either a proposed amendment or a description of an amendment to be proposed, together with a timetable for adoption to revise CSR 38-2-3.12.a.2., or otherwise amend the West Virginia program to require that the water supply survey required by CSR 38-2-3.12.a.2. include all drinking, domestic, and residential water supplies within the permit area and adjacent area, without limitation by an angle of draw, that could be contaminated, diminished, or interrupted by subsidence. State Response In our January 15, 2002, meeting, WVDEP agreed to amend its program. By letter dated February 26, 2002, WVDEP sent us draft language (at Attachment 7) that it had submitted to the State Legislature for approval. The proposed amendment clarifies that the State reserves the right to request surveys within a larger area based on evaluation of the application. As submitted, the revised language at CSR 38-2-3.12.a.1. provides that the applicant for an underground coal mining permit must provide a survey on a map that identifies structures, perennial and intermittent streams or renewable resource lands and a narrative indicating whether or not subsidence could cause material damage or diminution of value or use of such structures or renewable resource lands both on the permit and adjacent areas within an angle of draw of at least 30 degrees “unless a greater area is specified by the Secretary.” In addition, the State has revised CSR 38-2-3.12.a.2. to also require a survey of the quality and quantity of water supplies that could be contaminated, diminished or interrupted by subsidence “within the permit area and adjacent areas.” The State submitted the proposed rule changes to the Legislature in February 2002. However, because of a procedural error, the Legislature did not adopt the revised language. To correct this oversight, on April 19, 2002, WVDEP filed these changes with the Secretary of State as emergency rules. According to State law, emergency rules can remain in effect for not more than 15 months. Final legislative rules are to be adopted by the State during a special legislative session or during the regular 2003 legislative session. We will review the emergency and final rules adopted by the State to ensure that the language of those rules is substantively identical to the language that we are approving today, with the exception of the correction of typographical and grammatical errors such as the two noted in Finding 19. Any substantive differences in the language are subject to further public review as a program amendment under 30 CFR 732.17. We find that the emergency rules approved by West Virginia satisfy the requirements codified at 30 CFR 948.16(aaaa) and can be approved. Therefore, 30 CFR 948.16(aaaa) can be removed. Upon promulgation of a final rule by the State, WVDEP will be required to provide us with a copy. We will review it to ensure that the language contained therein is identical to that language which is being approved today. Any substantive differences in the language will be subject to further public review and approval by us. 17. Presubsidence Survey. 30 CFR 948.16(bbbb) provides that West Virginia must submit either a proposed amendment or a description of an amendment to be proposed, together with a timetable for adoption to revise 38-2-3.12.a.2., or otherwise amend the West Virginia program to require that the permit applicant pay for any technical assessment or engineering evaluation used to determine the premining quality of drinking, domestic or residential water supplies, and to require that the applicant provide copies of any technical assessment or engineering evaluation to the property owner and to the regulatory authority. State Response In our January 15, 2002, meeting, WVDEP agreed to amend its program to clarify that the permit applicant must pay for any surveys, including technical assessments or engineering evaluations, conducted to determine the premining quality and quantity of water supplies and to require that copies of any technical assessments or engineering evaluations prepared as part of the survey be provided to the property owner and the WVDEP. In its February 26, 2002, letter, WVDEP submitted language at Attachment 7 to amend CSR 38-2-3.12.a.2.B. to address this issue. As amended, CSR 38-2-3.12.a.2.B. provides that “at the cost of the applicant,” a written report of the survey “containing any technical assessments and engineering evaluation used in the survey” shall be prepared and signed by the person or persons who conducted the survey. The provision also provides that copies of the report shall be provided to the property owner and to the Secretary The State submitted the proposed rule changes to the Legislature in February 2002. However, because of a procedural error, the Legislature did not adopt the revised language. To correct this oversight, on April 19, 2002, WVDEP filed these changes with the Secretary of State as emergency rules. According to State law, emergency rules can remain in effect for not more than 15 months. Final legislative rules are to be adopted by the State during a special legislative session or during the regular 2003 legislative session. We will review the emergency and final rules adopted by the State to ensure that the language of those rules is substantively identical to the language that we are approving today, with the exception of the correction of typographical and grammatical errors such as the two noted in Finding 19. Any substantive differences in the language are subject to further public review as a program amendment under 30 CFR 732.17. We find that, to the extent that CSR 38-2-3.12.a.2.B. requires the permit applicant to pay for the actual technical assessments or engineering evaluations, these amendments satisfy the required amendment codified at 30 CFR 948.16(bbbb) and can be approved. Therefore, 30 CFR 948.16(bbbb) can be removed. Upon promulgation of a final rule by the State, WVDEP will be required to provide us with a copy. We will review it to ensure that the language contained therein is identical to that language which is being approved today. Any substantive differences in the language will be subject to further public review and approval by us. 18. Extension of the 90-Day Abatement Period. 30 CFR 948.16(ffff) provides that West Virginia must amend CSR 38-2-16.2.c.4. or otherwise amend the West Virginia program to be no less effective than the Federal regulations at 30 CFR 817.121(c)(5), which provide that an extension of the 90-day abatement period may be granted for one of only three reasons: that subsidence is not complete; that not all subsidence related material damage has occurred; or that not all reasonably anticipated changes have occurred affecting the protected water supply. State Response: In its program amendment submittal dated May 2, 2001 (Administrative Record Number WV-1209), the State amended CSR 38-2-16.2.c.4 regarding bonding for subsidence damage. CSR 38-2-16.2.c.4 has been revised in pertinent part as follows. The director may extend the ninety (90) day abatement period but such extension shall not exceed one (1) year from the date of the notice. Provided, however, the permittee demonstrates in writing, and the director concurs that subsidence is not complete, that not all probable subsidence related material [damage] has occurred to lands or structures; or that not all reasonably anticipated changes have occurred affecting the water supply, and that it would be unreasonable to complete repairs or replacement within the ninety (90) day abatement period. If extended beyond ninety (90) days, as part of the remedial measures, the permittee shall post an escrow bond to cover the estimated costs of repairs to land or structures, or the estimated cost to replace water supply. As discussed in the February 9, 1999, Federal Register notice, the State's rule at subsection 16.2.c.4. provided for an extension to the 90-day abatement period (64 FR 6212-6213). However, it allowed an extension if the permittee demonstrates that it would be unreasonable to complete repairs within the 90-day abatement period. Because Federal rules limit the circumstances under which an extension to the 90-day abatement period can be granted, it appeared that operators in West Virginia could get extensions to the abatement period for additional reasons. The required program amendment codified at 30 CFR 948.16(ffff) requires the State to amend the West Virginia program at CSR 38-2-16.2.c.4. to be no less effective than the Federal regulations at 30 CFR 817.121(c)(5), which provide that an extension of the 90-day abatement period may be granted for one of only three reasons: that subsidence is not complete; that not all subsidence-related material damage has occurred; or that not all reasonably anticipated changes have occurred affecting the protected water supply. We find that the State's amendment to CSR 38-2-16.2.c.4., as quoted above, provides for extensions to the 90-day abatement period that are no less effective than those set forth in 30 CFR 817.121(c)(5). Therefore, the required program amendment at 30 CFR 948.16(ffff) has been satisfied, and it can be removed. We are approving this revision with the understanding that the State will revise subsection 16.2.c.4. and insert the word “damage” after the words “subsidence-related material” in the third sentence to correct a typographical error. 19. Bonding for Water Supply Replacement. 30 CFR 948.16(gggg) provides that West Virginia must amend CSR 38-2-16.2.c.4, or otherwise amend the West Virginia program to be no less effective than the Federal regulations at 30 CFR 817.121(c)(5) by requiring additional bond whenever protected water supplies are contaminated, diminished, or interrupted by underground mining operations conducted after October 24, 1992. The amount of the additional bond must be adequate to cover the estimated cost of replacing the affected water supply. As discussed in the February 9, 1999, Federal Register , 30 CFR 817.121(c)(5) requires that the permittee post additional bond whenever protected water supplies contaminated, diminished or interrupted by underground mining activities conducted after October 24, 1992 are not replaced within a specified time (64 FR 6212-6213). However, the State rule limited this requirement to water supplies that are affected by subsidence whereas the Federal rule applies this requirement to all water supplies affected by underground mining operations in general. State response In its February 26, 2002, submission, WVDEP officials stated that additional bond would be required whenever a protected water supply is contaminated, diminished, or interrupted by underground mining, and the amount of bond to be posted would be based on the estimated cost of replacing the water supply (Administrative Record No. WV-1276). However, for clarification, WVDEP proposed to amend CSR 38-2-16.2.c.4. to read as follows: 16.2.c.4. Bonding for Subsidence Damage: The Secretary shall issue a notice to the permittee when subsidence related material damage has occurred to lands, structures, or when contamination, diminution or interruption occurs to a domestic or residential water supply, and that the permittee has ninety (90) days from the date of notice to complete repairs or replacement. The Secretary may extend the ninety (90) day abatement period but such extension shall not exceed one (1) year from the date of the notice. Provided, however, the permittee demonstrates in writing, and the Secretary concurs that subsidence is not complete, that not all probable subsidence related material [material damage] has occurred to lands or structures; or that not all reasonably anticipated changes have occurred affecting the water supply, and that it would be unreasonable to complete repairs or replacement within the ninety (90) day abatement period. If extended beyond ninety (90) days, as part of the remedial measures, the permittee shall post an escrow bond to cover the estimated costs of repairs to land or structures, or the estimated cost to replace water supply. The State submitted the proposed rule changes to the Legislature in February 2002. However, because of a procedural error, the Legislature did not adopt the revised language. To correct this oversight, on April 19, 2002, WVDEP filed these changes with the Secretary of State as emergency rules. According to State law, emergency rules can remain in effect for not more than 15 months. Final legislative rules are to be adopted by the State during a special legislative session or during the regular 2003 legislative session. We will review the emergency and final rules adopted by the State to ensure that the language of those rules is substantively identical to the language that we are approving today, with the exception of the correction of typographical and grammatical errors such as the two noted in Finding 19. Any substantive differences in the language are subject to further public review as a program amendment under 30 CFR 732.17. As proposed, the emergency rules at subsection 16.24.c.4. require additional bond whenever domestic or residential water supplies are contaminated, diminished, or interrupted by underground mining operations, not just by subsidence. In addition, the amount of the additional bond must be adequate to cover the estimated cost of replacing the affected water supply. Therefore, we find that proposed 30 CSR 38-2-16.24.c.4. is no less effective than the Federal requirements at 30 CFR 817.125(c)(5). The proposed revisions satisfy the required amendment at 30 CFR 948.16(gggg), which we are removing. Upon promulgation of a final rule by the State, WVDEP will be required to provide a copy to us. We will review it to ensure that it is substantively identical to the language being approved today. Any substantive differences in the language will be subject to further public review and approval by us. We are approving this revision with the understanding that the State will revise subsection 16.2.c.4. to replace the comma between “lands” and “structures” in the first sentence with “or” and to correct the spelling of the word “material” and insert the word “damage” after the words “subsidence-related material” in the third sentence as shown above. 20. Timetable for Posting Bond for Subsidence-Related Material Damage and Damaged Water Supplies. 30 CFR 948.16(hhhh) provides that West Virginia must submit either a proposed amendment or a description of an amendment to be proposed, together with a timetable for adoption to amend CSR 38-2-16.2.c.4., or to otherwise amend the West Virginia program, to be no less effective than the Federal regulations at 30 CFR 817.121(c)(5), by requiring that the 90-day period before which additional bond must be posted begin to run from the date of occurrence of subsidence-related material damage. State Response In a program amendment submittal dated May 2, 2001 (Administrative Record Number WV-1209), the State amended CSR 38-2-16.2.c.4. to read as follows: 16.2.c.4. Bonding for Subsidence Damage: The director shall issue a notice to the permittee that subsidence related material damage has occurred to lands, structures, or water supply, and that the permittee has ninety (90) days from the date of notice to complete repairs or replacement. The director may extend the ninety (90) day abatement period but such extension shall not exceed one (1) year from the date of the notice. Provided, however, the permittee demonstrates in writing, and the director concurs that subsidence is not complete, that not all probable subsidence related material [damage] has occurred to lands or structures; or that not all reasonably anticipated changes have occurred affecting the water supply, and that it would be unreasonable to complete repairs or replacement within the ninety (90) day abatement period. If extended beyond ninety (90) days, as part of the remedial measures, the permittee shall post an escrow bond to cover the estimated costs of repairs to land or structures, or the estimated cost to replace water supply. On February 26, 2002, WVDEP proposed to further amend CSR 38-2-16.2.c.4. by (1) replacing “director” with “Secretary,” (2) replacing “that” with “when” in the first sentence immediately after the word “permittee,” and (3) adding the words “when contamination, diminution or interruption occurs to a domestic or residential” before “water supply” in the first sentence. As amended, CSR 38-2-16.2.c.4. provides that the Secretary shall issue a notice to the permittee when subsidence-related material damage has occurred to lands [or] structures, or when contamination, diminution or interruption occurs to a domestic or residential water supply, and that the permittee has ninety (90) days from the date of notice to complete repairs or replacement. As discussed in the February 9, 1999, Federal Register , CSR 38-2-16.2.c.4. originally differed from its Federal counterpart at 30 CFR 817.121(c)(5) in that the State rule provided that the 90-day period during which no bond need be posted began with the issuance of a notice of violation to the permittee, rather than with the date of occurrence of damage (64 FR 6212-6213). As amended, the 90-day grace period in the State rule continues to commence upon issuance of a notice (although the notice is no longer a notice of violation), not the date of occurrence of the damage. For the reasons discussed below, we no longer believe that the State must amend its rule to provide that the grace period begins on the date of occurrence of the damage. The preamble to the Federal rule contains the following explanation of its basis and intent: The current rules at 30 CFR Part 800 already require the permittee to adjust the amount of the bond when the costs of future reclamation increase or when a reclamation obligation is established; for example, when material damage from subsidence occurs. The final rule is intended to avoid incomplete reclamation by clarifying the application to actual subsidence damage of the requirement in 30 CFR 800.15(a) that the regulatory authority specify a period of time or a set schedule to increase the amount of bond when the cost of reclamation changes. Thus, this provision assures that funds are available in a timely fashion to cover the cost of repairs in case of default by the permittee and to encourage prompt repair through the use of a grace period. 62 FR 16742, col. 1, March 31, 1995. While the Federal rule includes no provision for notice to the permittee, we find that the notice provision is both equitable and a practical means of implementing this requirement. The preamble quoted above indicates that we did not intend for the rule to apply before a reclamation obligation is established, which often requires some investigation. Furthermore, exact dates that damage occurred may be unknown or difficult to establish, particularly for damage to land and damage that occurs in a gradual fashion. The cause of a water supply loss can be extremely difficult to ascertain, especially when the loss occurs near a mine during adverse climatic conditions. Like the Federal rule, the State rule establishes a deadline for posting additional bond and a 90-day grace period to encourage prompt repair or replacement. The State rule requires issuance of notice to a permittee “when” damage occurs, which we interpret as obligating the State to (1) conduct prompt investigations upon receiving a damage complaint and (2) issue a notice as soon as the investigation is completed. The permittee would be required to post the additional bond upon notification by the State if the damage cannot be corrected within 90 days. In addition, West Virginia has an alternative bonding system approved under 30 CFR 800.11(e), which means that any reclamation obligations not covered by a permittee's site-specific bond are the responsibility of the Special Reclamation Fund. Therefore, we find that the State rule is no less effective than the Federal rule, and that it satisfies the requirements of 30 CFR 948.16(hhhh), which we are removing. The State submitted the proposed rule changes to the Legislature in February 2002. However, because of a procedural error, the Legislature did not adopt the revised language. To correct this oversight, on April 19, 2002, WVDEP filed these changes with the Secretary of State as emergency rules. According to State law, emergency rules can remain in effect for not more than 15 months. Final legislative rules are to be adopted by the State during a special legislative session or during the regular 2003 legislative session. We will review the emergency and final rules adopted by the State to ensure that the language of those rules is substantively identical to the language that we are approving today, with the exception of the correction of typographical and grammatical errors such as the two noted in Finding 19. Any substantive differences in the language are subject to further public review as a program amendment under 30 CFR 732.17. 21. Recreational Facilities Use. 30 CFR 948.16(iiii) provides that West Virginia must submit either a proposed amendment or a description of an amendment to be proposed, together with a timetable for adoption, to: Amend the term “recreational uses” at W. Va. Code 22-3-13(c)(3) to mean “recreational facilities use” at SMCRA section 515(c)(3). State Response In our January 15, 2002, meeting with the WVDEP, WVDEP asserted that when the West Virginia law and rules are read together, they are no less stringent than SMCRA at section 515(c)(3). In addition, by letter dated February 26, 2002, WVDEP stated that neither State code nor State rules define the term “public facility including recreational land use.” Furthermore, WVDEP provided the following policy statement to address this required amendment. It is the state position that the term “public facility including recreational land use,” implies structures or other significant developments that the public is able to use, or that confer some type of public benefit. Depending upon individual ci [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A02-10759. Public record. Not legal advice.