West Virginia Regulatory Program

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 948

West Virginia Regulatory Program

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

Interior.

ACTION: Final rule; approval of amendment.

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SUMMARY: OSM is approving an amendment to the West Virginia permanent

regulatory program under the Surface Mining Control and Reclamation Act

of 1977 (SMCRA). The amendment concerns West Virginia's regulations for

the design and construction of durable rock fills. The amendment will

revise the West Virginia program to be consistent with SMCRA and the

Federal regulations.

EFFECTIVE DATE: August 16, 1995.

FOR FURTHER INFORMATION CONTACT: Mr. James C. Blankenship Jr.,

Director, Charleston Field Office, Office of Mining Reclamation and

Enforcement, 1027 Virginia Street East, Charleston, West Virginia

25301, Telephone: (304) 347-7158.

SUPPLEMENTARY INFORMATION:

I. Background on the West Virginia Program

II. Submission of the Amendment

III. Director's Findings

IV. Summary and Disposition of Comments

V. Director's Decision

VI. Procedural Determinations

I. Background on the West Virginia Program

SMCRA was passed in 1977 to address environmental and safety

problems associated with coal mining. Under SMCRA, OSM works with

States to ensure that coal mines are operated in a manner that protects

citizens and the environment during mining, that the land is restored

to beneficial use following mining, and that the effects of past mining

at abandoned coal mines are mitigated.

Many coal-producing States, including West Virginia, have sought

and obtained approval from the Secretary of the Interior to carry out

SMCRA's requirements within their borders. In becoming the primary

enforcers of SMCRA, these ``primacy'' States accept a shared

responsibility with OSM to achieve the goals of the Act. Such States

join with OSM in a shared commitment to the protection of citizens--our

primary customers--from abusive mining practices, to be responsive to

their concerns, and to allow them full access to information needed to

evaluate the effects of mining on their health, safety, general

welfare, and property. This commitment also recognizes the need for

clear, fair, and consistently applied policies that are not

unnecessarily burdensome to the coal industry--producers of an

important source of our Nation's energy.

Under SMCRA, OSM sets minimum regulatory and reclamation standards.

Each primacy State ensures that coal mines are operated and reclaimed

in accordance with the standards in its approved State program. The

States serve as the front-line authorities for implementation and

enforcement of SMCRA, while OSM maintains a State performance

evaluation role and provides funding and technical assistance to States

to carry out their approved programs. OSM also is responsible for

taking direct enforcement action in a primacy State, if needed, to

protect the public in cases of imminent harm or, following appropriate

notice to the State, when a State acts in an arbitrary and capricious

manner in not taking needed enforcement actions required under its

approved regulatory program.

Currently there are 24 primacy states that administer and enforce

regulatory programs under SMCRA. These states may amend their programs,

with OSM approval, at any time so long as they remain no less effective

than Federal regulatory requirements. In addition, whenever SMCRA or

implementing Federal regulations are revised, OSM is required to notify

the States of the changes so that they can revise their programs

accordingly to remain no less effective than the Federal requirements.

A major goal of SMCRA is to ensure adequate reclamation of all

areas disturbed by surface coal mining.

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During reclamation, the removal of coal is followed by backfilling the

mine pit with spoil to return the land to its approximate original

contour. There is usually more spoil than is needed for backfilling

because solid rock that was removed when the mine pit was excavated

increases in volume. This excess rock is typically disposed of as fills

in valleys adjacent to the mine pit. A ``durable rock fill'' is an

excess spoil fill composed of at least 80 percent by volume of

sandstone, limestone, or other rocks that do not slake in water. It is

usually constructed in a single lift or layer and has an underdrain

system that is created by the natural segregation of rock and soil as

it is dumped and rolls downslope.

Background information on the West Virginia program, including the

Secretary's findings, the disposition of comments, and the conditions

of approval can be found in the January 21, 1981, Federal Register (46

FR 5915). Subsequent actions concerning the conditions of approval and

program amendments can be found at 30 CFR 948.10, 948.12, 948.13,

948.15, and 948.16.

II. Submission of the Amendment

In a series of three letters dated June 28, 1993, and July 30, 1993

(Administrative Record Nos. WV-888, WV-889 and WV-893), the West

Virginia Division of Environmental Protection (WVDEP) submitted an

amendment to its approved permanent regulatory program that included

numerous revisions to the West Virginia Surface Coal Mining and

Reclamation Act (referred to herein as ``the Act'', WVSCMRA Sec. 22A-3-

1 et seq.) and the West Virginia Surface Mining Reclamation Regulations

(CSR Sec. 38-2-1 et seq.). OSM grouped the proposed revisions that

concern durable rock fills into one amendment which is the subject of

this notice. The main provisions of the amendment will:

Require that certification forms for durable rock fills be

accompanied by statements attesting to the percentage of non-durable

material, foundation preparation, prohibited materials and sediment

control measures.

Establish criteria for testing spoil material to determine

if it qualifies as durable rock.

Require surface water runoff from areas above and adjacent

to the fill to be diverted into channels designed and constructed to

ensure stability of the fill, control erosion, and minimize water

infiltration.

Require additional sediment control measures if

construction and operation of the fill results in significant non-

compliance with effluent limits or water quality standards.

Prohibit certain materials from being placed in durable

rock fills.

OSM announced receipt of the proposed amendment in the August 12,

1993, Federal Register (58 FR 42903) and invited public comment on its

adequacy. Following this initial comment period, WVDEP revised the

amendment on September 1, 1994, and May 16, 1995 (Administrative Record

Nos. WV-937, and WV-979B). OSM reopened the comment period on August

31, 1994 (59 FR 44593), September 29, 1994 (59 FR 49619), and July 5,

1995 (60 FR 34934), and held a public hearing in Charleston, West

Virginia on September 7, 1993, and a public meeting on October 27,

1994.

III. Director's Findings

A. CSR Sec. 38-2-14.14(b)(4) Certification of Durable Rock Fills

West Virginia proposes to add a provision requiring that

certification forms, submitted to WVDEP by registered professional

engineers overseeing the construction of durable rock fills, be

accompanied by: (1) a statement attesting that the fill contains no

more than 20 percent non-durable material, (2) a statement attesting

that the foundation is proceeding in accordance with the design plans,

(3) a statement that the prohibited materials are not being placed,

deposited, or disposed of into the fill areas, and (4) a statement that

sediment control measures are constructed and being maintained in

accordance with the approved design plans and the terms and conditions

of the permit.

Under 30 CFR 816/817.73(c), the Federal rules require a qualified

registered engineer to certify that the design of a durable rock fill

will ensure the stability of the fill and meet all other applicable

requirements. Furthermore, 30 CFR 816/817.71(h) requires inspections at

least quarterly throughout construction and during critical

construction periods. Following each inspection, the qualified

registered professional engineer must submit certified reports to the

regulatory authority attesting that the fill has been constructed and

maintained in accordance with the approved plan and program

requirements. The report must include appearances of instability,

structural weakness, and other hazardous conditions. West Virginia's

program already contains these requirements. Other than described

above, the Federal rules do not specify that the certified report

include specific statements by the engineer. Since West Virginia

proposes to require a more detailed certification, the Director finds

that subsection 14.14(b)(4) is consistent with the Federal rules and is

hereby approved.

B. CSR Sec. 38-2-14.14(g)(1)(B) Testing of Fill Materials

State and Federal regulations for durable rock fills require that

no more than 20 percent of the volume of the fill may be spoil material

that is not durable rock as determined by tests performed by a

registered engineer and approved by the regulatory authority. Durable

rock is material that will not slake in water and will not degrade to

soil material. West Virginia proposes to add a provision at subsection

14.14(g)(1)(B) that defines soil material, as used in the definition of

durable rock, as material of which at least 50 percent is finer than

0.074 millimeters, which exhibits plasticity, and which meets the

criteria for group symbol ML, CL, OL, MH, CH, or OH, as determined by

the Unified Soil Classification System (ASTM D-2487). In support of

this amendment, the WVDEP submitted to OSM a durable rock testing

protocol which the State would implement in applying its proposed

regulations (Administrative Record No. WV-932). Under the protocol,

rock is first checked for durability by use of standard slake

durability tests. If a rock slakes in water, it is defined as non-

durable, regardless of whether or not it degrades to soil material. A

rock which passes the slake durability test may be further tested under

subsection 14.14(g)(1)(B), on a case-by-case basis, to determine

whether it would potentially degrade to soil particles exhibiting

plasticity and particle size below the specified limit.

The Federal rules do not define soil material in the context of

durable rock fills or provide a testing protocol to determine if rock

degrades to soil material. Since West Virginia's protocol adds a

screening test for durable rock not specifically required under the

Federal regulations, the Director finds that the proposed rule when

applied in conjunction with the State's protocol is no less effective

than 30 CFR 816/817.73(b) and is therefore approved.

C. CSR Sec. 38-2-14.14(g)(8) Drainage Control

WVDEP is proposing to revise subsection 14.14(g)(8) to read as

follows:

Surface water runoff from areas above and adjacent to the fill

shall be diverted into properly designed and constructed stabilized

diversion channels which have been designed, using best current

technology, to safely pass the peak runoff from a 100-year, 24-hour

precipitation event. The channel

[[Page 42439]]

shall be designed and constructed to ensure stability of the fill,

control erosion, and minimize water infiltration into the fill.

The Federal rules at 30 CFR 816/817.73(f) prohibit surface water

runoff from areas adjacent to and above the fill to flow onto the fill

and require water to be diverted into stabilized diversion channels

designed to safely pass the runoff from a 100-year, 6-hour

precipitation event. The Federal rule is more restrictive than the

proposed rule with regard to the location of surface drainage diversion

channels relative to the body of the fill. Under 30 CFR 816/817.73(f),

drainage diversion channels must divert surface runoff from areas

adjacent to and above the fill away from the fill. Such channels must

be located either completely off of the fill or at the interface of the

natural slope and the fill. West Virginia's proposed amendment would

allow drainage diversion channels to be located anywhere, including on

the fill itself, provided that the channels are designed and

constructed to ensure the stability of the fill, control erosion, and

minimize water infiltration into the fill.

The Federal requirement to divert runoff water away from durable

rock fills was adopted on March 13, 1979, as permanent program rule 30

CFR 816.74(d). While there were no specific comments pertaining to

diversions of water away from durable rock fills, commenters stated,

with regard to head-of-hollow fills, that stabilized diversion channels

``off of the fill'' created an unnecessary disturbance and that

channels on the fill could protect that portion of the fill from

erosion. In the preamble, OSM justified the requirement by stating that

``Diversion of water away from the fill surface is considered sound

engineering practice'' and cited several engineering references. OSM

concluded that, while more area will be disturbed where diversions are

placed off of the fill area, ``less environmental harm will result from

retaining the requirement to build diversions off the fill

structures.'' (44 FR 15206).

The intent of the Federal rule prohibiting runoff diversion onto

the fill, as explained in the preamble, was to prevent water erosion of

fill material and infiltration into the fill. West Virginia's proposed

rule, while not restricting the location of surface drainage diversion

channels, specifically requires control of erosion and minimization of

water infiltration, thus preserving the intent of the corresponding

Federal regulation. The proposed rule prohibits the diversion of water

into or through the fill because diversions must be designed and

constructed to minimize water infiltration.

An OSM ad hoc technical committee on excess spoil disposal

considered the proposed amendment for technical sufficiency. The

committee concluded that appropriate surface drainage control for

durable rock fills can be accomplished under the proposed West Virginia

amendment. The amendment's proposed language and the other excess spoil

provisions of the West Virginia regulatory program provide clear

authority for WVDEP to require permit applications containing

demonstrations and technical analyses addressing adequate hydraulic

design--including channel capacity, erosion control, and minimizing

infiltration into the fill mass. The committee also considered that a

proper channel design could overcome potential hydraulic problems from

intersecting flows at channel and terrace junctions, changes in channel

gradient, or anywhere hydraulic jump and/or overtopping would be likely

to occur. The committee recommended to WVDEP that a permittee show

designs and specifications, based upon maximum design velocities, which

would encompass riprap sizing, gradation, bedding, filters, and all

channel material placement. The design and specification should also

address how infiltration will be minimized (e.g., through channel

liners, etc.) and assure that runoff adjacent to the channel can enter

the drainage diversion system with a minimum of erosion. The committee

underscored the importance that runoff not be allowed over the face of

the fill in locations other than the diversion channel. Finally, the

committee provided WVDEP a series of recommendations on key areas of

the durable rock fill drainage control system that should be inspected

during and after fill construction (Administrative Record No. WV-1008).

In the absence of any clear congressional intent, OSM evaluated

this amendment by comparing the advantages and disadvantages of

locating surface water diversions off of-and-on fills from a public

safety and environmental standpoint. The perimeter or groin channels

required under the Federal rules would likely result in a larger

disturbed area, greater instability of the natural slope adjacent to

the fill and require more long-term maintenance when compared to

surface water diversions located on the fill itself. However, surface

diversions located off the fill are less likely to result in erosion

and in surface water infiltration to the fill mass than are diversions

located on the fill.

Weighing the advantages and shortcomings of both methods of

diversion construction, the Director concludes that neither method is

clearly more environmentally preferable than the other. Therefore, the

Director finds proposed subsection 14.14(g)(8) to be no less effective

than 30 CFR 816/817.73(f) and he is approving it.

D. CSR Sec. 38-2-14.14(g)(11) Sediment Control

WVDEP proposes to add a new provision which states that additional

storage capacity or sediment control measures may be required through

permit revision if sediment removal during operation and construction

of the fill is found to be deficient to the point that significant non-

compliance with applicable effluent limits and water quality standards

results. In support of this amendment WVDEP stated that the term

``significant'' refers to the NPDES permit and enforcement thereof and

that any failure to meet effluent limits constitutes a violation and a

notice of non-compliance is issued (Administrative Record No. WV-934).

The proposed subsection has no Federal counterpart. However, it is

consistent with 30 CFR 816/817.71(a)(1) which requires that excess

spoil be placed in designated disposal areas in a manner to minimize

the adverse affects of leachate and surface water runoff from the fill

on surface and ground waters. The Director is hereby approving

subsection 14.14(g)(11).

E. CSR Sec. 38-2-14.14(g)(12) Prohibited Materials

WVDEP proposes to add a provision which sets forth the materials

that can not be placed, deposited, or disposed of in a durable rock

fill or durable rock fill area. These prohibited materials include

surface soils except for surface soils used to establish vegetation or

surface soils placed in the fill if accounted for in design and

construction as nondurable materials and not placed in critical zones.

Other prohibited materials are mud, silt, or sediment; vegetation or

organic materials; non-coal wastes; and coal refuse. There is no

similar listing of materials prohibited from placement in durable rock

fills in the Federal rules. However, 30 CFR 816/817.73(b) does require

that at least 80 percent of the material in a fill be non-acid and non-

toxic-forming rock; 30 CFR 816/817.71(e) requires the removal of all

vegetation and organic materials from the disposal area prior to

placement of excess spoil; and 30 CFR 816/817.89(b) requires the final

disposal and noncoal waste in a designated disposal site in the permit

area or a

[[Page 42440]]

State approved solid waste disposal area. Furthermore, 30 CFR 816/

817.71(i) provides for the disposal of coal mine waste in excess spoil

fills if approved by the regulatory authority and certain conditions

are met. Since West Virginia's proposal does not allow placement in

durable rock fills of any material that is prohibited by the Federal

regulations, the Director finds that subsection 14.14(g)(12) is no less

effective than the Federal rules and he is hereby approving it.

IV. Summary and Disposition of Comments

Public Comments

The Director solicited public comments and provided an opportunity

for public hearings on the proposed amendment. A public hearing was

held on September 7, 1993, and a public meeting was held on October 27,

1994 (Administrative Records Nos. WV-906 and WV-958). Comments on

durable rock fills were received from GAI Consultants, Inc; Hobet

Mining; Terra Engineers, Inc.; West Virginia Mining and Reclamation

Association; West Virginia Coal Association; West Virginia Highlands

Conservancy; Pine Ridge Coal Corporation; Burko Resources and Eastern

Association Coal Corporation.

All comments received pertain to the drainage control provisions in

CSR Sec. 38-2-14.14(g)(8) as first submitted to OSM on July 30, 1993,

and revised on September 1, 1994 (Administrative Record Nos. WV-893 and

WV-937). In the July 30, 1993, submission, WVDEP proposed to delete the

existing requirement that runoff from areas above and adjacent to

durable rock fills be prohibited from flowing onto the fill and to add

new language requiring diversions to be designed and constructed to

pass runoff ``around and through the fill.'' This language was revised

on September 1, 1994, to read ``around or through the fill.'' OSM

objected to the design and construction of durable rock fills where

surface water runoff would be allowed to be diverted ``through the

fill''. However, all public comments received were in support of this

provision. OSM, State and industry representatives met and developed

new language tentatively acceptable to all parties. This was submitted

to OSM on May 16, 1995 (Administrative Record No. WV-979B). When OSM

reopened the public comment period on July 5, 1995, only one comment

was received on proposed CSR Sec. 38-2-14.14(g)(8) which had been

revised to allow drainage diversion channels to be located anywhere,

including on the fill itself, so long as the channels were designed and

constructed to ensure the stability of the fill, control erosion, and

minimize water infiltration into the fill. In the following section,

OSM is responding to all comments received, including those submitted

in response to WVDEP's July 30, 1993, and September 1, 1994, proposals,

even though these proposals were subsequently revised on May 16, 1995.

History of durable rock performance: Commenters reported that

numerous (up to about 4,000) excess spoil fills (including durable rock

fills) have been constructed in West Virginia over the past 20 to 25

years. Many of these are durable rock fills. According to commenters,

there are no documented massive or structural failures among the fills.

Commenters reported that problems identified have been minor and not

unique to subsurface or center drains. The results of a 1994 WVDEP

survey of fills revealed no substantive difference in structural

integrity among fills with different runoff diversion systems. One

commenter's review of recent (1990-94) citizens' complaints and WVDEP

and OSM inspection reports (July 1993-June 1994) supported the apparent

lack of failures or significant problems with existing fills and fills

under construction in the state.

In response, OSM notes that the similarity of earlier excess spoil

disposal practices in West Virginia to the present is uncertain. The

oldest fills in West Virginia are much smaller than many of those

currently under construction, are primarily of the lift type and are

influenced by smaller drainage areas. The more recent fills of up to

100,000,000 cubic yards have yet to stand the test of time, are

constructed by end-dumping methods, and would typically experience

significant runoff discharges from larger drainage areas. Moreover,

durable rock fills may experience a greater runoff/sediment influx due

to the larger upslope disturbed area found at modern-day mining

operations. The WVDEP survey, and the review of inspection records and

citizens' complaints would not necessarily reveal long-term subsurface

problems. OSM is unaware of any attempts to revisit sites of durable

rock fills that are beyond bond release. Therefore, the comparisons

drawn by commenters between earlier head-of-hollow fills and present-

day durable rock fills have limited value.

Commenters cited evidence for the efficacy and safety of drainage

systems on fills based on their successful use on abandoned-mine-land

(AML) sites. A direct comparison of diversions on AML coal refuse

projects and active excess spoil disposal areas is not possible. AML

project drainage control design options are very limited since fills

are in-place and site conditions may not be suitable for diversion in

natural ground. Excess spoil disposal designs provide greater

flexibility since the fill location can be selected and the fill

material has not yet been placed. Surface water diversions on AML

projects often involve linings of concrete, grouted rip rap, or other

less pervious material which minimize surface drainage infiltration

into the fill mass. Rarely do mine operators line channels in a similar

manner.

Future stability of durable rock fills: One commenter expressed

hope that ``* * * future generations will put these fills to good use

and will maintain surface drainage.'' The objective of the Federal and

State rules on excess spoil design and construction is to promote

permanent stability for the long term protection of the environment,

life, and safety of future generations. The question of permanent

stability is a fundamental issue affecting OSM's concerns about

subsurface and center drains. Destabilizing subsurface processes such

as piping, plugging, and pore-water pressure build-up can take place

over long periods of time without being expressed on the surface. A key

aspect underscoring this concern is the absence of any fill maintenance

following bond release.

Some commenters contended that problems with fill stability are

likely to appear during, and are limited to, the period of

construction. They claimed that, during construction, fill and

foundation-soil consolidation is incomplete; much of the non-durable

rock will already have degraded; the outslope is at the angle of repose

(i.e. not yet graded to a more stable configuration); and, sediment

production is greater than it will be when revegetation becomes

established. Problems stemming from inadequate drainage and a rising

phreatic surface or free-water elevation will also occur soon enough to

be detected and remediated. One commenter also pointed out that future

fill failures, if and when they take place, will be limited to slumping

of fill material into a more stable configuration. The commenter said

that, under steep-slope and poor foundation conditions, flow slides

would not occur, since one should not expect liquefaction in drained

rock-fill material.

Presently, there is very little use and maintenance of finished

excess spoil fills. The postmining land use for approximately 95 per

cent of the fills is forest. Future utilization of land downstream of

some fills in the form of housing developments, farming, park

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grounds, industrial facilities, etc. is possible. However, there is no

reason to assume that those using the land will have the knowledge or

resources available to address problems that may develop or to perform

needed maintenance. What maintenance will occur will partly depend on

what will be observed. Problems with surface drainage systems are

readily noticeable. This is not true for subsurface drains. Since OSM

cannot assume that future generations will assume the liability for

diversion maintenance, conservative performance standards maximizing

long-term diversion effectiveness are necessary.

There are no guarantees that most fill problems will occur during

construction. The benefits of fill/foundation consolidation and

regrading can be counteracted by increases in the fill-mass weight (by

addition of fill material or moisture during construction); or addition

of moisture after bond release. The claim that degradation will be

limited to the time of durable-rock-fill construction lacks supporting

data. Forces working within the fill during consolidation, and action

of water within the fill, can further degrade the fill following

construction. Sediment entering internal drainage systems may not be

adequately controlled by the amount of vegetation on the fill or mine-

site surface following bond release. Sites of natural landslides are

commonly considered to be prone to additional slides. The same can be

said for initial slumps or slides on a constructed fill. Also, even

limited or local slumps could result in more than limited consequences,

depending on the concurrent usage of the site. Finally, whether or not

massive flow slides will occur will depend on moisture conditions in

the fill and long-term strength characteristics of the material. It can

take a long time for steady-state seepage levels to occur. Thus, the

effects of piping, plugging, and rising pore-water pressure may occur

well beyond bond release.

Perimeter drainage channels: Several commenters in support of

center and subsurface drains for surface runoff control emphasized

disadvantages associated with perimeter diversion ditches. Some

commenters cited the effects of geologic degradation (weathering and

erosion of materials in the channels, filling of the channels from

landslides or slumps from adjacent steep slopes); seepage of surface

water into the fill mass through underlying colluvium; and, the

difficulty in achieving effective positive drainage in very long

diversion ditches. Some commenters stated that OSM Directive TSR-6

(Transmittal Number 400, November 10, 1987), which allows perimeter

ditches to be in contact with the fill mass, enhances differential

settlement and erosion.

One commenter noted the annual maintenance requirements of

perimeter ditches around coal refuse embankments as justification for

channels on the fill mass. Another compared fills constructed with

perimeter drains to those using center drains, claiming that the former

fill type experiences more problems with erosion and water penetration

into the fill mass.

OSM concurs that perimeter ditches--and other kinds of drainage

diversion ditches--can and, in fact, do have maintenance problems.

However, the problems are commonly the result of inadequate site

investigation, design, or construction and not necessarily an inherent

condition of all surface drains. Proper investigation of the proposed

diversion location, careful planning and design, along with careful

construction should alleviate many problems commonly encountered in the

field. As for problems that may not be avoided over the long term

(geologic degradation), surface drains still have an important

advantage over subsurface drains since problems can be easily detected

as they develop. Where a site investigation predicts the establishment

of an effective surface drainage system to be prohibitively difficult,

rejection of the site may be the best course of action.

OSM Directive TSR-6 permits contact between perimeter drainage

channels and fill material. While there is some potential for

differential settlement beneath interface channels, OSM does not agree

that the risk of this happening is greater than for center drains. The

thickness of fill material below the center channel is much greater,

and assuming the fill material behaves homogeneously during

consolidation, this location is more susceptible to differential

settlement than interface diversion channels. Furthermore, center-

channel failure could result in more erosion of the fill simply because

there is more fill above natural ground at this location than beneath

the interface channel. These concerns highlight the importance of

design and construction methods that ensure long-term channel stability

and mitigate erosion and water penetration into the fill mass.

Center drainage channels: Two commenters claimed that significant

amounts of seepage into the fill mass should not occur from surface

water flowing in center drains. One commenter claimed to have observed

standing water in center drains as evidence that infiltration was not

occurring. Another maintained that, barring barriers to free drainage,

infiltration will always be less than the drainage capacity in a dumped

rock fill, especially due to the compaction of near-surface materials

during construction. The latter commenter further suggested that ``. .

. infiltration from the ditch could be minimized by means of a

compacted zone of well-graded rockfill in which the voids are

completely choked with rock fines.''

OSM's position, in approval of this amendment, is that center

drains are conditionally acceptable. It must be pointed out that

barriers to free drainage in a constructed channel are difficult to

avoid. Because durable rockfill construction is typified by less-

permeable fine material in the upper reaches of the fill mass, OSM

agrees that a potentially workable method for minimizing seepage from a

center channel is the construction of a compacted zone of well-graded

rockfill.

Subsurface drainage systems: One commenter cited the results of his

flow-through model study in support of the State's original proposal

for surface drainage through fills which was subsequently withdrawn

from further consideration. The commenter concluded that the laboratory

bench-scale test proved that a durable rock fill is capable of

internally passing 24-hour, 100-year storm events. The commenter stated

that a draw-down of water level occurred in the model as flow

approached the toe of the simulated fill. The commenter also pointed

out that flow through rock voids seldom exceeds three feet per second

but can reach many times this value in surface perimeter ditches. Some

commenters have argued against the potential occurrence of plugging in

the subsurface drains by claiming that the end-dumping method produces

a graded fill that effectively prevents migration of fines. One

commenter emphasized the general absence of evidence for plugging,

stating that an autopsy of the simulated durable rock fill found only

rock dust covering the rock particles and/or a minor accumulation of

fines in the bottom of the fill. The commenter stated that there was no

evidence that ``* * * fines tended to migrate through the fill.''

Finally, the commenter suggested that fills with internal drains may

have the potential effect of flood mitigation via runoff attenuation.

The commenter stated that the model outflow was ``* * * a lot less than

the peak into it.''

The commenter also responded to OSM's (September-December 1993)

reviews of the model study. The reviews

[[Page 42442]]

concentrated on comparing the model with actual durable rock fills

constructed in the field. The commenter asserted that the model was

sufficiently representative of real-life fills with respect to its

materials, void ratio, particle gradation, and scale. The commenter

also disputed the OSM contention that durable rock fills have yet to be

tested by a 24-hour, 100-year storm event. The commenter stated that

the 1977 flood ``* * * generally recognized as a 100-year event over

much of Southern West Virginia;'' the 1985 flood over eastern and

central West Virginia ``* * * considered to be 500+ year event;'' and,

localized storms ``* * * equal to or greater than the 100 year 24 hour

storm.''

Again, OSM's position on routing surface runoff through subsurface

drains is based on the potential, long-term and not-readily-observed

effects of piping and plugging. Furthermore, it would appear that the

rock dust and minor sediment accumulation in the simulated fill could

not have occurred without migration of fine material. The model may not

represent actual conditions with respect to fine material. The position

that the end-dumping method prevents fines migration by producing a

graded fill is conceptually feasible, but scientifically undocumented.

The comments pertaining to precipitation events in West Virginia

are at variance with available data. Construction of the earliest West

Virginia durable-rock fills commenced around 1980. Hourly data recorded

at stations throughout West Virginia since 1980 do not show a 100-year,

24-hour event nor multiples of such events. Also, the suggestion that

routing surface runoff into subsurface drains may have a mitigating

effect on floods should create as much concern as it might portend a

potential advantage. Retained water increases the weight of a fill

mass, potentially increasing the driving force for sliding, and may

engender sufficient pore water pressures to reduce the fill's

resistance to failure.

Previous studies: Some comments included references to literature

that the commenter believed supports routing surface runoff through

subsurface drains. These include: the U.S. Department of Agriculture

Soil Conservation Service Engineering Handbook; WVDEP Mining and

Reclamation Handbook; OSM Engineering and Design Manual for Disposal of

Excess Spoil (1983); recommendations of the Durable Rockfill Committee

(1983); 1981 National Academy of Science report; Department of Energy

study by Skelly and Loy on excess-spoil disposal in the watersheds of

Buffalo Creek, Logan County; several issues of Green Lands Magazine;

and ``Embankment-Dam Engineering'' by Casagrande in 1973.

The commenters also reference a 1984 OSM drilling project

investigating fills placed in greater than four-foot lifts that

reported high calculated factors of safety (2.2-2.5) for these types of

fills. Another OSM project mentioned by a commenter is the Crown City

Mining Company experimental practice of single-lift fills with

structural faces in Gallia and Lawrence Counties, Ohio. According to

the commenter, this was reported to be a ``short term success.''

OSM has evaluated the above references and concluded that they do

not specifically promote or support the diversion of surface runoff

into subsurface drainage systems in durable rock fills. The fills that

were drilled by OSM in 1984 were placed in multiple lifts--a practice

not comparable to end-dumping methods being considered in this

rulemaking. The results of the experimental practice in Ohio are not

applicable because the fills involved placement of durable rock in a

non-steep-slope area and there was no routing of runoff through the

fill.

Design flexibility: Several proponents of routing surface runoff

into subsurface and center drains have contended that a mine operator

needs regulatory flexibility in order to design durable-rock-fill

drainage systems appropriate to site-specific conditions. A commenter

suggested that the requirement for fills to be designed by a

professional engineer experienced with earth and rock fills should be a

sufficient safeguard. Commenters said that detailed requirements, or

the insistence that a specified ``recipe'' be followed, result in

unnecessary costs to the mining industry and an impediment to the

development of design improvements.

In response, OSM notes that the only restriction at issue concerns

the use of subsurface drains for surface runoff control in durable-rock

excess spoil fills. Proposed CSR Sec. 38-2-14.14(g)(8) requires that

the fill be designed and constructed with diversion channels that

minimize surface water infiltration into the fill. Therefore, the

diversion of surface runoff into subsurface drains is prohibited. OSM

finds that if this condition is met the proposed rule allows adequate

flexibility for the engineer to design a drainage control system that

fits site-specific conditions.

Federal Agency Comments

Pursuant to section 503(b)(1) of SMCRA and 30 CFR 732.17(h)(11)(i),

OSM solicited comments on the proposed amendment from various Federal

agencies with an actual or potential interest in the West Virginia

program on four different occasions (Administrative Record Nos. WV-891,

WV-897, WV-936, and WV-942). Comments were received from the U.S.

Bureau of Land Management, the Mine Safety and Health Administration,

the U.S. Bureau of Mines, and the U.S. Army Corps of Engineers. These

Federal agencies acknowledged receipt of the amendment, but generally

had no comment or acknowledged that the revisions were satisfactory.

Environmental Protection Agency (EPA)

Pursuant to 30 CFR 732.17(h)(11)(ii), OSM is required to obtain the

written concurrence of the EPA with respect to those provisions of the

proposed program amendment that relate to air or water quality

standards promulgated under the authority of the Clean Water Act (33

U.S.C. 1251 et seq.) or the Clean Air Act (42 U.S.C. 7401 et seq.).

On July 2 and August 3, 1993 (Administrative Record Nos. WV-892 and

WV-896), OSM solicited EPA's concurrence with the proposed amendment.

On October 17, 1994 (Administrative Record No. WV-949), EPA gave its

written concurrence with a condition based on subsection 5.4(b)(4) of

West Virginia's regulations. This condition does not pertain to durable

rock fills which are the subject of this rulemaking.

Pursuant to 30 CFR 732.17(h)(11)(i), the Director solicited

comments on the proposed amendment from EPA on four different occasions

in 1993 and 1994 (Administrative Record Nos. WV-891, WV-897, WV-936,

and WV-942). No comments were received concerning durable rock fills.

V. Director's Decision

Based on the above findings, the Director is approving the proposed

amendment pertaining to durable rock fills as submitted by West

Virginia on July 30, 1993, and revised on September 1, 1994 and May 16,

1995.

The Federal regulations at 30 CFR Part 948 codifying decisions

concerning the West Virginia program are being amended to implement

this decision. This final rule is being made effective immediately to

expedite the State program amendment process and to encourage States to

bring their programs into conformity with the Federal standards without

undue delay. Consistency of State and Federal standards is required by

SMCRA.

[[Page 42443]]

VI. Procedural Determinations

Executive Order 12866

This rule is exempted from review by the Office of Management and

Budget (OMB) under Executive Order 12866 (Regulatory Planning and

Review).

Executive Order 12778

The Department of the Interior has conducted the reviews required

by section 2 of Executive Order 12778 (Civil Justice Reform) and has

determined that, to the extent allowed by law, this rule meets the

applicable standards of subsections (a) and (b) of that section.

However, these standards are not applicable to the actual language of

State regulatory programs and program amendments since each such

program is drafted and promulgated by a specific State, not by OSM.

Under sections 503 and 505 of SMCRA (30 U.S.C. 1253 and 1255) and 30

CFR 730.11, 732.15 and 732.17(h)(10), decisions on proposed State

regulatory programs and program amendments submitted by the States must

be based solely on a determination of whether the submittal is

consistent with SMCRA and its implementing Federal regulations and

whether the other requirements of 30 CFR Parts 730, 731, and 732 have

been met.

National Environmental Policy Act

No environmental impact statement is required for this rule since

section 702(d) of SMCRA [30 U.S.C. 1292(d)] provides that agency

decisions on proposed State regulatory program provisions do not

constitute major Federal actions within the meaning of section

102(2)(C) of the National Environmental Policy Act (42 U.S.C.

4332(2)(C)).

Paperwork Reduction Act

This rule does not contain information collection requirements that

require approval by OMB under the Paperwork Reduction Act (44 U.S.C.

3507 et seq.).

Regulatory Flexibility Act

The Department of the Interior has determined that this rule will

not have a significant economic impact on a substantial number of small

entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).

The State submittal which is the subject of this rule is based upon

counterpart Federal regulations for which an economic analysis was

prepared and certification made that such regulations would not have a

significant economic effect upon a substantial number of small

entities. Accordingly, this rule will ensure that existing requirements

previously promulgated by OSM will be implemented by the State. In

making the determination as to whether this rule would have a

significant economic impact, the Department relied upon the data and

assumptions for the counterpart Federal regulations.

List of Subjects in 30 CFR Part 948

Intergovernmental relations, Surface mining, Underground mining.

Dated: August 10, 1995.

Michael K. Robinson,

Acting Regional Director, Appalachian Regional Coordinating Center.

For the reasons set out in the preamble, Title 30, Chapter VII,

Subchapter T of the Code of Federal Regulations is amended as set forth

below:

PART 948--WEST VIRGINIA

1. The authority citation for Part 948 continues to read as

follows:

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

2. Section 948.15 is amended by adding paragraph (n) to read:

Sec. 948.15 Approval of regulatory program amendments.

* * * * *

(n) The sections of the amendment submitted by West Virginia to OSM

by letter dated July 30, 1993, as revised by submittals dated September

1, 1994, and May 16, 1995, pertaining to durable rock fills are

approved effective August 16, 1995.

[FR Doc. 95-20272 Filed 8-15-95; 8:45 am]

BILLING CODE 4310-05-M