West Virginia Permanent Regulatory Program

DEPARTMENT OF THE INTERIOR

30 CFR Part 948

[WV-075-FOR]

West Virginia Permanent 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 announcing the approval, with certain exceptions, of

[[Page 38383]]

amendments to the West Virginia permanent regulatory program

(hereinafter referred to as the West Virginia program) under the

Surface Mining Control and Reclamation Act of 1977 (SMCRA Act). The

amendments concern revisions to the West Virginia Surface Mining

Reclamation Regulations. The amendments are intended to improve the

clarity and effectiveness of the West Virginia program, and to revise

the State program to be consistent with the corresponding Federal

regulations.

EFFECTIVE DATE: July 24, 1996.

FOR FURTHER INFORMATION CONTACT:

Mr. James C. Blankenship, Jr., Director, Charleston Field Office,

Office of Surface 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

On January 21, 1981, the Secretary of the Interior conditionally

approved the West Virginia program. Background information on the West

Virginia program, including the Secretary's findings, the disposition

of comments, and the conditions of the approval can be found in the

January 21, 1981, Federal Register (46 FR 5915-5956). Subsequent

actions concerning the West Virginia program and previous amendments

are codified at 30 CFR 948.10, 948.12, 948.13, 948.15, and 948.16.

II. Submission of the Amendment

By letter dated April 2, 1996 (Administrative Record Number WV-

1024), the West Virginia Division of Environmental Protection (WVDEP)

submitted an amendment to its approved permanent regulatory program

pursuant to 30 CFR 732.17. The amendment contains revisions to the West

Virginia Surface Mining Reclamation Regulations (CSR Sec. 38-2-1 et

seq.).

The proposed amendment was published in the April 23, 1996, Federal

Register (61 FR 17859), and in the same notice, OSM opened the public

comment period and provided opportunity for a public hearing on the

adequacy of the proposed amendment. The comment period closed on May

23, 1996.

The last time the State regulations were significantly revised was

on February 21, 1996. The Director partially approved the revisions in

the February 21, 1996, Federal Register (61 FR 6511-6537). See 30 CFR

948.15 for the provisions partially approved, and 30 CFR 948.16 for the

required amendments.

III. Director's Findings

Set forth below, pursuant to SMCRA and the Federal regulations at

30 CFR 732.15 and 732.17, are the Director's findings concerning the

proposed amendment to the West Virginia program.

1. Sec. 38-2-2.106 Definition of ``Safety factor.'' This definition

is revised to mean the ratio of the sum of the resisting forces to the

sum of the loading or driving forces as determined by acceptable

engineering practices. Prior to this change, the term was defined as

the ratio of the sum of the resisting forces to the sum of the loading

forces in a constructed valley fill, backfill, dam, or refuse pile. The

Director finds the term as revised to be substantively identical to and

no less effective than one of the two options contained in the

counterpart Federal definition at 30 CFR 701.5

2. Sec. 38-2-3.2(e) Readvertisement of permit applications. This

provision is amended by adding the phrase, ``that do not significantly

affect the health, safety or welfare of the public and,'' to the first

sentence. With this change, a limited number of minor changes may be

grouped and readvertised if the changes do not significantly affect the

health, safety or welfare of the public and do not significantly affect

the method of operation, the reclamation plan, and/or the original

advertisement. This notice is in addition to the original advertisement

requirement of one advertisement per week, for four successive weeks.

The Director finds the added language does not render the provision

less effective than the Federal regulations at 30 CFR 773.13 concerning

public participation in permit processing.

3. Sec. 38-2-3.6(h)(5) Certification of drainage/sediment control

structure designs. This provision is amended by changing a cited

reference concerning dams. ``Article 5D of Chapter 20'' is deleted and

replaced by ``Article 14 of Chapter 22.'' The Director finds that the

citation change does not render the provision less effective than the

Federal regulations at 30 CFR 780.25(a) concerning preparation and

certification of plans.

4. Sec. 38-2-3.8(c) Revision or reconstruction of existing

structures and support facilities. This provision is amended by adding

the following language: ``Provided, that those [existing] structures

and facilities, where it can be demonstrated that reconstruction or

revision would result in greater environmental harm and the performance

standards set forth in the Act and these regulations can otherwise be

met, may be exempt from revision or construction.'' This amendment, in

effect, provides an alternative to requiring revision or reconstruction

of structures or support facilities in cases where greater

environmental harm would result from the revisions or reconstruction.

The Federal regulations at 30 CFR 701.11(e)(1), provide for a

similar exemption. Such exemptions to design requirements for existing

structures can be granted as part of the permit application process

after obtaining the information required by the State counterparts to

30 CFR 780.12 or 784.12 and after making the findings required in the

State counterparts to 30 CFR 773.15. Proposed subsection 3.8(c) does

not refer to these State counterparts. However, since these

counterparts are, indeed, part of the State's program (see Sec. 38-2-

3.8(b), 3.32(d)(6)), cross-references to those provisions in subsection

3.8(c) are unnecessary.

The Federal regulations at 30 CFR 701.11(e)(2) provide that such

exemptions shall not apply to (a) the requirements for existing and new

coal mine waste disposal facilities; and (b) the requirements to

restore the approximate original contour of the land. The West Virginia

program, however, lacks a counterpart to these Federal limitations

concerning the applicability of the proposed exemption.

The Director is approving the amendments to CSR 38-2-3.8(c). In

addition, the Director is requiring that West Virginia further amend

the West Virginia 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 1)

the requirements for new and existing coal mine waste disposal

facilities; and 2) the requirements to restore the land to approximate

original contour.

5. Sec. 38-2-3.27 Permit renewals and extensions. The introductory

paragraph of this provision is amended by deleting the word ``may'' and

adding in its place the word ``shall.'' In addition, language has been

deleted that required all backfilling and grading be completed within

60 days prior to the expiration date of the permit, and that an

application for Phase I bond release be filed prior to the expiration

date of the

[[Page 38384]]

permit. As amended, the provision provides that the Director of the

WVDEP shall waive the requirements for renewal if the permittee

certifies in writing that all coal extraction is completed, that all

backfilling and regrading will be completed and reclamation activities

are ongoing. The Director finds that the proposed provision is

substantively identical to and no less effective than the Federal

regulations at 30 CFR 773.11, which provides that an operator does not

have to renew a permit to conduct reclamation activities.

6. Sec. 38-2-4.4 Infrequently used access roads. This provision is

revised by deleting and adding rule citations. As amended, infrequently

used access roads may not be exempt from the requirements of Secs. 38-

2-4.2, 4.7(a), 4.8, 4.9, and 5.3. The Director finds the changes to be

consistent with the Federal regulations at 30 CFR 816/817.150. In

addition, the amendments satisfy the required program amendments

codified at 30 CFR 948.16(rr). 30 CFR 948.16(rrr) required that West

Virginia revise Sec. 38-2-4.4 to require that all infrequently used

access roads comply with Sec. 38-2-4.9. Since this required amendment

has been satisfied, it is hereby removed.

7. Sec. 38-2-4.12 Certification of primary roads. This provision is

amended by deleting the requirement that changes documented in the as-

built plans be submitted to the Director of WVDEP as a permit revision.

In its place, the following language is added: ``If as-built plans are

submitted, the certification shall describe how and to what extent the

construction deviates from the proposed design, and shall explain how

and certify that the road will meet performance standards.'' In effect,

these amendments replaces a requirement that all changes documented as

as-built plans be submitted as a permit revision, with a requirement

that when such changes are submitted, the submittal shall include an

explanation of the changes, and a certification that the changes will

meet performance standards

The Director finds that the deletion of the requirement to submit

as-built plans to the Director of the WVDEP renders the amendment

provision less effective than the Federal regulations at 30 CFR

774.11(c) concerning regulatory review of permits. In effect, the

automatic acceptance of certified as-built plans removes the regulatory

authority from its responsibility under 30 CFR 774.11(c) which requires

a finding for even minor permit revisions. This finding by the

regulatory authority must address all program requirements, not just

performance standards.

Therefore, the Director is approving the proposed changes, except

to the extent that the Director of the WVDEP is removed from the

responsibility of reviewing permit revisions (such as as-built plans

changes) as is required under 30 CFR 774.11(c). In addition, the

Director is requiring that the State further amend CSR 38-2-4.12 to

reinstate the following deleted language: ``and submitted for approval

to the Director as a permit revision.''

8. Sec. 38-2-5.4(c) Safety standards for embankment type

structures. The first paragraph of this provision is amended by

deleting the phrase ``which may include slurry impoundments.'' With

this amendment, the provision's safety standards apply to all

embankment type sediment control or other water retention structures.

The Director finds that the removal of the reference to slurry

impoundments renders the States provision unclear as to its application

to slurry impoundments. If, the provision does not apply to slurry

impoundments (which appears to be the purpose of the deletion), the

provision is rendered less effective than the Federal regulations at 30

CFR 816/817.49 and cannot be approved. Therefore, the Director is

approving the provision except to the extent that the provision does

not apply to slurry impoundments. In addition, the Director is

requiring that the State further amend the West Virginia program by

clarifying that the requirements at CSR 38-2-5.4(c) also apply to

slurry impoundments. The Director notes that this can be accomplished

either by reinstating the deleted language or be replacing the term

``water retention structure'' with the term ``impoundment.''

9. Sec. 38-2-11.6(a) Review of permits for adequacy of bond. This

provision is amended to relocate the site-specific bonding requirements

applicable to all four categories of mining at the time of permit

renewal or mid-term review, whichever occurs first. These requirements

also do not allow a permit to be renewed until the appropriate amount

of bond has been posted. However, the Director finds the proposed

revision, which is merely for organizational purposes, is not

inconsistent with the Federal bonding requirements at 30 CFR 800.13 and

30 CFR 774.15(c).

10. Sec. 38-2-11.6(c)(6), (d)(6), (e)(5), (f)(5) Bond reduction

credits. These provisions are being amended to delete, in various

places, the phrase ``within five (5) years of the date of SMA

approval.'' In effect, activities for which a permittee may receive

bond reduction credits are no longer required to be performed within

five years from the date of SMA approval. The Director finds that,

although there are no direct Federal counterparts, the proposed

provisions would have no significant financial impacts and, therefore,

would not adversely affect the findings that formed the basis for the

Secretary's approval of the alternative bonding system pursuant to 30

CFR 800.11(e).

11. Sec. 38-2-12.2(e) Bond release--chemical treatment. The

existing language of this provision is deleted and replaced by the

following:

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 treatment in order to

comply with applicable effluent limitations or water quality standards;

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:

(A) The remaining bond is adequate to assure long term treatment of

the drainage; or

(B) The operator has irrevocably committed other financial

resources which are adequate to assure long term treatment of the

drainage; Provided, that the alternate financial resources must be in

acceptable form, and meet the standards set forth in Section 11 of the

Act and Section 11 of these regulations; provided, however, that the

alternate financial arrangements shall provide a mechanism whereby the

Director can assume management of the resources and treatment work in

the event that the operator defaults for any reason; and provided

further, that default on a treatment obligation under this paragraph

shall be considered equivalent to a bond forfeiture, and the operator

will be subject to penalties and sanctions, including permit blocking,

as if a bond forfeiture had occurred.

In order to make such demonstration as referenced above, the

applicant shall address, at a minimum, the current and projected

quantity and quality of drainage to be treated, the anticipated

duration of treatment, the estimated capital and operating cost of the

treatment facility, and the calculations which demonstrate the adequacy

of the remaining bond or of the alternate financial resources.

In effect, the added language would allow, under the specified

circumstances, Phase I bond release on operations which require

chemical treatment in order to comply with applicable effluent

limitations or water quality standards.

[[Page 38385]]

The Director notes that the State's definition of ``chemical

treatment'' at Sec. 38-2-2.20 has only been partially approved by OSM.

Specifically, the language of the definition that excludes passive

treatment systems from being considered ``chemical treatment'' was not

approved to the extent that such passive treatment systems would be

applied in the context of Sec. 38-2-12.2(e) to authorize bond release

for sites with discharges that require passive treatment to meet

discharge standards. For a complete explanation of the partial

disapproval of the State's definition of ``chemical treatment,'' see

Finding B-2, in the February 21, 1996, Federal Register (61 FR 6511) at

page 6517.

The proposed language concerning incremental bond release could be

implemented in a manner that is no less effective than the Federal

requirements at 30 CFR 800.40(c) concerning bond release. The proposed

language provides that the bond remaining after Phase I release, or the

other financial resources committed to the treatment, must be adequate

to assure long-term treatment of this discharge. In addition, the new

language provides that the other financial resources committed to long-

term treatment must be irrevocably committed, and the currently

approved bonding requirements continue to apply. Finally, while these

new provisions will provide bond monies for long-term treatment, they

in no way eliminate the currently approved provisions that provide for

adequate bond monies to assure completion of the approved reclamation

plan (for example, to assure revegetation).

Therefore, the Director is approving the proposed revisions at CSR

38-2-12.2(e) to the extent that passive treatment, where it is

implemented to achieve compliance with effluent limitations or water

quality standards, is chemical treatment under the West Virginia

program definition of chemical treatment at CFR 38-2-2.20.

12. Sec. 38-2-14.3(c) Topsoil substitutes. The Director is

deferring action on this proposed amendment because it was

inadvertently omitted from the proposed rule notice published on April

23, 1996 (61 FR 17859) that announced the changes submitted by the

State and requested public comment. The Director will provide

opportunity for public comment on this change in the near future by

notice in the Federal Register.

13. Sec. 38-2-14.14(e)(4) Valley fills--rock core chimney drains.

This provision is being amended by deleting the third sentence, which

concerns the control of surface water runoff, and replacing that

language with the following:

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 shall be designed and constructed to

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

infiltration into the fill.

The Federal regulations prohibit uncontrolled flow onto excess

spoil fills and require that diversion channels be constructed off the

fills. OSM's technical committee agreed that such diversions could be

constructed on durable rock fills, but it never addressed their use on

valley fills. (See the August 16, 1995, Federal Register (60 FR 42437)

for a discussion of OSM's approval of West Virginia's recently revised

provisions concerning durable rock fills.) Given the differences in the

construction techniques of the two types of fills, OSM cannot say with

any confidence that the proposal, which would allow the construction of

diversions on valley fills, its environmentally sound. The State needs

to submit scientific evidence to OSM demonstrating that the proposed

method of construction will not harm the long-term integrity of valley

fills. A technical evaluation of this issue must occur before OSM can

find the proposed State requirements at subsection 14.14(e)(4) to be no

less effective than 30 CFR 816/817.72(a)(2). Therefore, the Director is

not approving the proposed amendments at this time. Since this

requirement is to take effect on July 1, 1996, OSM requests that its

implementation be delayed and the WVDEP continue to require that runoff

be diverted around valley fills until the study can be completed and a

final determination is rendered by OSM.

14. Sec. 38-2-14.15(m) Coal processing waste disposal. This

provision is being amended by deleting the prohibition at 14.15(m)(1)

that coal processing waste ``will not contain acid producing or toxic

forming material.'' A new provision at 14.15(m)(2) is added to provide

as follows:

(2) The coal processing waste will not be placed in the backfill

unless it has been demonstrated to the satisfaction of the Director

that: (A) the coal processing waste to be placed based upon

laboratory testing (sic) to be non-toxic and/or non-acid producing;

or (B) an adequate handling plan including alkaline additives has

been developed and the material after alkaline addition is non-toxic

and/or non-acid producing.

The Director finds, that in accordance with 30 CFR 816/817.102(e),

except for the requirements concerning disposal, foundation

investigations, and emergency procedures, the proposed language is

consistent with and no less effective than the Federal regulations at

30 CFR 816/817.81 concerning coal mine waste. The Director is approving

this amendment only to the extent that, with the disposal of coal

processing waste in the backfill, the backfill will not exceed the

approximate original contour (AOC). If AOC is exceeded, then the

disposal of coal processing waste in the backfill must comply with the

West Virginia program counterparts to 30 CFR 816/817.83 concerning coal

mine waste--refuse piles. In addition, the Director is requiring that

the State further amend the West Virginia 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. That is, such acid- or toxic-producing materials must be

hydraulically separated from any groundwater and from water

infiltration into the backfill.

IV. Summary and Disposition of Comments

Federal Agency Comments

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

May 1, 1996, comments were solicited from various interested Federal

agencies (Administrative Record Number WV-1030). The U.S. Army Corps of

Engineers responded that they found the amendments to be satisfactory.

The U.S. Department of Labor, Mine Safety and Health Administration

(MSHA) responded with several comments. However, non of the comments

MSHA submitted pertain to the provisions that are being amended by the

State. Therefore, those comments will not be discussed in this notice.

[[Page 38386]]

Public Comments

A public comment period and opportunity to request a public hearing

was announced in the April 23, 1996, Federal Register (61 FR 17859).

The comment period closed on May 23, 1996. No one requested an

opportunity to testify at the scheduled public hearing so no hearing

was held. The West Virginia Mining and Reclamation Association and the

West Virginia Coal Association responded and urged approval of the

amendments. No other public comments were received.

Environmental Protection Agency (EPA)

Under 30 CFR 732.17(h)(11)(ii), the Director is required to obtain

the written concurrence of the Administrator of the EPA with respect to

any provisions of a State 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 Clear Air Act (42 U.S.C. 7401 et

seq.). On May 1, 1996, the Director requested EPA's concurrence and

comments (Administrative Record Numbers WV-1029, 1030).

EPA responded on June 27, 1996 (Administrative Record No. WV-1037)

and commented on two provisions. Concerning CSR 38-2-12.2(e), EPA

conditionally concurred, and stated that the proposed revision for

allowing bond release could result in a situation where less funds

would be available for long term treatment unless three critical areas

are addressed: (1)An accurate determination of the effectiveness,

duration, and long term costs of treatment must be made to avoid

underestimating abatement needs; (2) An assurance that the alternate

financial resources, which are described by the proposed revision, will

be irrevocably committed (such as in a trust fund, dedicated escrow

account, or other similar manner) to assure its availability for

treatment in case of bankruptcy; and (3) Assurance that the bond monies

set aside for long term water treatment are in addition to the bond

monies needed to assure the completion of the reclamation plan (such as

for revegetation).

In response, the Director acknowledges the EPA's concerns, but

believes that these results are not likely to occur. The proposed

language provides that the bond remaining after Phase I release, or the

other financial resources committed to the treatment, must be adequate

to assure long term treatment of the discharge. In addition, the new

language provides that the other financial resources committed to long

term treatment must be irrevocably committed, and the currently

approved bonding requirements continue to apply. Finally, while these

new provisions will provide bond monies for long term treatment, they

in no way eliminate the currently approved provisions that provide for

adequate bond monies to assure completion of the approved reclamation

plan (for example, to assure revegetation). Therefore, the Director is

approving the provisions.

The EPA commented that the revisions at CSR 38-2-14.15(m) could

result in acid seepage unless the approved handling plans include

diversion drains for surface runoff, refuse encapsulation with clay or

other material of low permeability, and rock drains under the backfill

and along the highwall, to intercept and convey groundwater away from

the refuse. As discussed above in Finding 14, the Director agrees and

is requiring that the State further amend the West Virginia program 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, encapsulation with clay or other material of low permeability.

That is, such acid- or toxic-producing materials must be hydraulically

separated from any groundwater and from water infiltration into the

backfill.

V. Director's Decision

Based on the findings above, the Director is approving the

amendment submitted by West Virginia on April 2, 1996, except as noted

below.

The Director is requiring that WVDEP further amend the West

Virginia 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 (1)

the requirements for new and existing coal mine waste disposal

facilities; and (2) the requirements to restore the land to approximate

original contour.

The amendments at CSR 38-2-4.4 satisfy the required program

amendment codified at 30 CFR 948.16(rrr), which is hereby removed.

CSR 38-2-4.12 is approved except to the extent that the Director of

the WVDEP is removed from its responsibility (under 30 CFR 774.11(c))

of reviewing permit revisions (such as reviewing as-built plans

changes). In addition, the Director is requiring that the State further

amend CSR 38-2-4.12 to reinstate the following deleted language: ``and

submitted for approval to the Director as a permit revision.''

CSR 38-2-5.4(c) is approved except to the extent that the provision

does not apply to slurry impoundments. In addition, the Director is

requiring that the State further amend the West Virginia program by

clarifying that the requirements at CSR 38-2-5.4(c) also apply to

slurry impoundments.

CSR 38-2-12.2(e) is approved to the extent that passive treatment,

where it is implemented to achieve compliance with effluent limitations

or water quality standards is chemical treatment under the West

Virginia program definition of chemical treatment at CFR 38-2-2.20.

Sec. 38-2-14.3(c) Topsoil substitutes. The Director is deferring

action on this proposed amendment because it was inadvertently omitted

from the proposed rule notice published on April 23, 1996 (61 FR 17859)

that announced the changes submitted by the State.

CSR 38-2-14.14(e)(4) which would allow drainage to be diverted onto

valley fills is not approved and its implementation is to be delayed

pending the submission and approval of scientific evidence showing that

the proposed construction of diversions on valley fills will not

adversely affect their long-term stability.

CSR 38-2-14.15(m) is approved only to the extent that, with the

disposal of coal processing waste in the backfill, the backfill will

not exceed the approximate original contour (AOC). If AOC is exceeded,

then the disposal of coal processing waste in the backfill must comply

with the West Virginia program counterparts to 30 CFR 816.83 concerning

coal processing waste--refuse piles. In addition, the Director is

requiring that the State further amend the West Virginia program to

require compliance with the State counterparts to 30 CFR 816/817.81

(b), (d) and (e) regarding 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

[[Page 38387]]

material of low permeability. That is, such acid- or toxic-producing

materials must be hydraulically separated from any groundwater and from

water infiltration into the backfill.

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.

Effect of Director's Decision

Section 503 of SMCRA provides that a State may not exercise

jurisdiction under SMCRA unless the State program is approved by the

Secretary. Similarly, 30 CFR 732.17(a) requires that any alteration of

an approved State program be submitted to OSM for review as a program

amendment. Thus, any changes to the State program are not enforceable

until approved by OSM. The Federal regulations at 30 CFR 732.17(g)

prohibit any unilateral changes to approved State programs. In his

oversight of the West Virginia program, the Director will recognize

only the statutes, regulations and other materials approved by him,

together with any consistent implementing policies, directives and

other materials, and will require the enforcement by West Virginia of

only such provisions.

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 12988

The Department of the Interior has conducted the reviews required

by section 3 of Executive Order 12988 (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 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.

Unfunded Mandates

This rule will not impose a cost of $100 million or more in any

given year on any governmental entity or the private sector.

List of Subjects in 30 CFR Part 948

Intergovernmental relations, Surface mining, Underground mining.

Dated: July 10, 1996.

Tim L. Dieringer,

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. In Section 948.15, paragraph (q) is added to read as follows:

Sec. 948.15 Approval of regulatory program amendments.

* * * * *

(q) The amendment to the West Virginia program concerning changes

to the West Virginia regulations as submitted to OSM on April 2, 1996,

is approved effective July 24, 1996 except as noted below:

CSR 38-2-4.12 is approved except to the extent that the Director

of the WVDEP is removed from the responsibility (as is required by

30 CFR 774.11(c)) of reviewing permit revisions (such as reviewing

as-built plans changes).

CSR 38-2-5.4(c) is approved except to the extent that the

provision does not apply to slurry impoundments.

CSR 38-2-12.2(e) is approved to the extent that passive

treatment, where it is implemented to achieve compliance with

effluent limitations or water quality standards is chemical

treatment under the West Virginia program definition of chemical

treatment at CFR 38-2-2.20.

Sec. 38-2-14.3(c) Topsoil substitutes. The Director is deferring

action on this proposed amendment because it was inadvertently

omitted from the proposed rule notice published on April 23, 1996

(61 FR 17859) that announced the changes submitted by the State.

CSR 38-2-14.14(e)(4) which would allow drainage to be diverted

onto valley fills is not approved.

CSR 38-2-14.15(m) is approved to the extent that, with the

disposal of coal processing waste in the backfill, the backfill will

not exceed the approximate original contour (AOC). If AOC is

exceeded, then the disposal of coal processing waste--refuse piles.

3. Section 948.16 is amended by removing and reserving paragraph

(rrr), and adding paragraph (vvv) to read as follows:

Sec. 948.16 Required regulatory program amendments.

* * * * *

(vvv) By January 15, 1997, 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 the West Virginia

program as follows:

(1) Amend the West Virginia 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 (1) the requirements for new and existing coal mine waste

disposal facilities; and (2) the requirements to

[[Page 38388]]

restore the land to approximate original contour.

(2) Amend CSR 38-2-4.12 to reinstate the following deleted

language: ``and submitted for approval to the Director as a permit

revision.''

(3) Amend the West Virginia program by clarifying that the

requirements at CSR 38-2-5.4(c) also apply to slurry impoundments.

(4) Amend CSR 38-2-14.15(m), or otherwise amend the West Virginia

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.

[FR Doc. 96-18610 Filed 7-23-96; 8:45 am]

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