West Virginia Regulatory Program

DEPARTMENT OF THE INTERIOR

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 with certain exceptions an amendment to the

West Virginia permanent regulatory program under the Surface Mining

Control and Reclamation Act of 1977 (SMCRA). The amendment contains

revisions to the West Virginia Surface Coal Mining and Reclamation Act

(WVSCMRA) and the West Virginia Surface Mining Reclamation Regulations.

The amendment is intended to make the West Virginia program consistent

with SMCRA and the corresponding Federal regulations. Additional

amendments will be required to bring the West Virginia program into

full compliance with SMCRA.

The statutory revisions pertain to reorganization of the State

regulatory authority, extension of the State Abandoned Mine Lands and

Reclamation Act, definitions, surface mine reclamation inspector

qualifications, approval to remove more than 250 tons of coal during

prospecting, permit transfers, permit fees, premium payments for the

Workers' Compensation Fund, Small Operator Assistance Program (SOAP),

hydrologic protection, blasting schedules, preblast surveys,

termination of underground mining permits, excess spoil fills,

variances from approximate original contour, citizen complaint

investigations, issuance of notices of violation, abatement times for

notices of violation, civil penalty assessments for cessation orders

that are abated within twenty-four hours, permit suspension or

revocation, temporary relief, burden of proof, disclosure of ownership

and control information, reinstatement of right to mine, permit renewal

requirements, extensions to permitted areas, surface mining activities

not subject to the Act, National Pollutant Discharge Elimination system

(NPDES) permitting requirements, removal of

[[Page 6512]]

coal from existing waste piles, and environmental boards.

The revisions to State regulations concern applicability,

definitions, ownership and control information, maps, operation plan,

excess spoil disposal, new and existing structures, subsidence control

plan, removal of abandoned coal waste piles, approved person, fish and

wildlife resources, geologic information, transfer, assignment or sale

of a permit, permit renewals and revisions, incidental boundary

revisions, variances exemption for government financed highway or other

construction, permit issuance, permit conditions, improvidently issued

permits, haulroads, transportation and support facilities, intermittent

or perennial streams, design, construction, certification, inspection

and abandonment of sediment control and other water retention

structures, permanent impoundments, blasting, fish and wildlife,

revegetation, insurance, notice of intent to prospect, hydrologic

balance, steep slope mining, inactive status approval, variance from

approximate original contour, excess spoil disposal, contemporaneous

reclamation, control of fugitive dust, utility installations, disposal

of noncoal waste, backfilling and regrading underground mines,

subsidence control, small operator assistance program, citizen actions,

inspection frequencies, notices of violation, show cause orders, civil

penalty determinations, civil penalty assessment procedures, civil

penalty assessment rates, coal refuse certification, compaction

requirements for coal refuse areas, design, construction and

maintenance requirements for coal refuse impoundments, inspection,

examination and reporting requirements for coal refuse impoundments,

training and certification of blasters, and abandoned mine lands

reclamation.

EFFECTIVE DATE: February 21, 1996. Approval dates of regulatory program

amendments are listed in Sec. 948.15(p).

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, WV 25301, Telephone (304) 347-7158.

SUPPLEMENTARY INFORMATION:

I. Background

II. Submission of the Amendment

III. Director's Findings

IV. Summary and Disposition of Comments

V. Director's Decision

VI. Procedural Determinations

I. Background

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 with their borders. In becoming the primary

enforcers of SMCRA, these ``primary'' 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 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 to that they can revise their programs

accordingly to remain no less effective than the Federal requirements.

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 approved the proposed revisions on

durable rock fills on August 16, 1996, (60 FR 42437-42443) and the

proposed revisions on bonding on October 4, 1995, (60 FR 51900-51918).

The remaining proposed revisions are the subject of this notice.

The statutory revisions pertain to reorganization of the State

regulatory authority, extension of the State Abandoned Mine Lands and

Reclamation Act, definitions, surface mine reclamation inspector

qualifications, approval to remove more than 250 tons of coal during

prospecting, permit transfers, permit fees, premium payments for the

Workers' Compensation Fund, SOAP, hydrologic protection, blasting

schedules, preblast surveys, termination of underground mining permits,

excess spoil fills, variances from approximate original contour,

citizen complaint investigations, issuance of notices of violation,

abatement times for notices of violation, civil penalty assessments for

cessation orders that are abated within twenty-four hours, permit

suspension or revocation, temporary relief, burden of proof, disclosure

of ownership and control information, reinstatement of right to mine,

permit renewal requirements, extensions to permitted areas, surface

mining activities not subject to the Act, National Pollutant Discharge

Elimination System (NPDES) permitting requirements, removal of coal

from existing waste piles, and environmental boards.

[[Page 6513]]

The revisions to State regulations concern applicability,

definitions, ownership and control information, maps, operation plan,

excess spoil disposal, new and existing structures, subsidence control

plan, removal of abandoned coal waste piles, approved person, fish and

wildlife resources, geologic information, transfer, assignment or sale

of a permit, permit revisions and renewals, incidental boundary

revisions, permit conditions, improvidently issued permits, exemptions

for government financed highway or other construction variances, permit

issuance, haulroads, transportation and support facilities,

intermittent or perennial streams, design, construction, certification,

inspection and abandonment of sediment control and other water

retention structures, permanent impoundments, blasting, fish and

wildlife, revegetation, insurance, notice of intent to prospect,

hydrologic balance, steep slope mining, inactive status approval,

variance from approximate original contour, excess spoil disposal,

contemporaneous reclamation, control of fugitive dust, utility

installations disposal of coal mine waste, backfilling and regrading

underground mines, subsidence control, small operator assistance

program, citizen actions, inspection frequencies, notices of violation,

show cause orders, civil penalty determinations, civil penalty

assessment procedures, civil penalty assessment rates, coal refuse

certification, compaction requirements for coal refuse areas, design,

construction and maintenance requirements for coal refuse impoundments,

and inspection, examination and reporting requirements for coal refuse

impoundments, training and certification of blasters, and abandoned

mine lands regulation.

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 August 18, 1994, and September 1, 1994, and May 16, 1995

(Administrative Record Nos. WV-933, WV-937, and WV-979B). OSM reopened

the comment period on August 31, 1994 (59 FR 44953), September 29, 1994

(59 FR 49619), and July 5, 1995 (60 FR 34934), and held public

meetings/hearings in Charleston, West Virginia on September 7, 1993,

October 27, 1994, and May 30, 1995.

III. Director's Findings

Only those revisions of particular interest are discussed below.

Any revisions not specifically discussed below are found to be no less

stringent than SMCRA and no less effective than the Federal

regulations. Revisions not discussed below contain language similar to

the corresponding Federal regulations, concern nonsubstantive wording

changes, revise cross-references and paragraph notations to reflect

organizational changes resulting from this amendment, or concern

program provisions for which there is no Federal counterpart and which

do not adversely affect other aspects of the West Virginia program.

A. Proposed Revisions to the West Virginia Code (Including numerous

revisions to the West Virginia Surface Coal Mining and Reclamation Act

(WVSCMRA)

1. Sec. 22-1-4 Through 8 Division of Environmental Protection

The State has reorganized the Division of Environmental Protection

under the Bureau of the Environment and abolished the Department of

Commerce, Labor and Environmental Resources under West Virginia House

Bill (H.B. 4030). Within the Bureau of Environment, Division of

Environmental Protection, the State established the Office of Abandoned

Mine Lands and Reclamation, and the Office of Mining and Reclamation.

The Office of Abandoned Mine Lands and Reclamation is given the

authority to administer and enforce the State's Abandoned Mine Lands

and Reclamation Act. The Office of Mining and Reclamation is given the

authority to administer and enforce the State's Surface Coal Mining and

Reclamation Act (under Sec. 22-1-7). The director is authorized to

appoint a Chief of each office who is accountable and responsible for

the performance of the duties, functions, and services of his or her

office (Sec. 22-1-8(a)). The provisions also authorize the director of

the division of environmental protection to employ legal counsel (H.B.

2523) (Sec. 22-1-6(d)(7)). The Director finds that the State regulatory

authority continues to have authority under State laws to implement,

administer, and enforce its State program. He is therefore approving

the proposed revisions to WVSCMRA Sec. 22-1-4 through 8. The Director

is also taking this opportunity to remove the required amendment at 30

CFR 948.16(c)(1), since it refers to the creation of the Division of

Mines and Minerals, which is now an obsolete designation.

2. Sec. 22-2 Abandoned Mine Lands and Reclamation Act

West Virginia proposes to revise its statute at section 22-2-2 to

reflect the extension of the abandoned land reclamation program and the

collection of fees which support it to September 30, 2004. The Director

finds that this revision is substantively identical to and therefore no

less stringent than section 402(b) of SMCRA.

West Virginia is also amending Sec. 22-2-4 to change the reference

to Public Law 95-87 to read ``Surface Mining Control and Reclamation

Act'', to change the reference to subdivision (3) to read subsection

(c), to change the reference to section 404 of Public Law 95-87 to read

section 402 of the Surface Mining Control and Reclamation Act, and to

delete references to ``administrative and personnel expenses'' for the

purposes of clarification. The Director finds that these revisions are

consistent with the Abandoned Mine Land Reclamation Act of 1990 and

satisfy 30 CFR 948.26(a), which is hereby removed.

The State is revising paragraph (c) by changing the ending date for

abandoned mine land fund eligibility for surface mining sites where the

surety became insolvent. The ending date for eligibility was changed

from October 1, 1991, to November 5, 1990. Paragraph (c) is also

revised by changing the reference to Public Law 95-87 to the Federal

Surface Mining and Reclamation Act of 1977, as amended. The Director

finds that the proposal is substantively identical to and therefore no

less stringent than section 402(g) of SMCRA.

3. Sec. 22-3-3 Definitions

a. Operator: The WVDEP proposes to define operator to mean any

person who is granted or who should obtain a permit to engage in any

activity covered by the WVSCMRA and any rule promulgated thereunder and

any person who engages in surface mining or surface mining and

reclamation operations, or both. The proposed definition states that

the term operator shall also be construed in a manner consistent with

the Federal program pursuant to SMCRA, as amended.

Section 701 of SMCRA defines operator to mean any person,

partnership, or corporation engaged in coal mining who removes or

intends to remove more than 250 tons of coal from the earth by coal

mining within 12 consecutive calendar months in any one location. In

support of the proposed definition the State submitted a policy

statement stating that WVDEP would interpret ``operator'' to include

all

[[Page 6514]]

persons who engage in surface mining or prospecting activities. This

policy statement was accompanied by a legal opinion from the General

Council for WVDEP which stated that the term ``operator'' as defined in

the WVSCMRA applies to a person who intends to prospect or engage in

coal exploration (Administrative Record No. WV-932). The Director

therefore finds that the proposed definition of operator at Sec. 22-3-3

of the WVSCMRA is no less stringent than the definition at section 701

of SMCRA and he is approving it.

b. Surface mine, surface mining or surface mining operations: The

WVDEP proposes to revise Sec. 22-3-3(u)(1) by inserting a semicolon

between ``reclamation'' and ``in-situ'' and a comma between

``cleaning'' and ``concentrating''. Also, at subsection 3(u)(2), the

exemption for permanent facilities not within the area being mined and

not directly involved in the excavation, storage, or processing of coal

has been removed from the definition. The Director finds that the

revisions to the definition of ``surface mining operation'', which

remove the exemption for certain permanent facilities and correct

errors in punctuation, satisfy the requirements of 30 CFR 948.16(c)(2)

and resolve the concerns which caused the Secretary not to approve the

definition at 30 CFR 948.12(c) and 30 CFR 948.13(a). Accordingly, he is

approving the proposed definition and removing the disapproval, set

aside, and required amendment provisions at 30 CFR 948.12(c),

948.13(a), and 948.16(c)(2).

4. Sec. 22-3-5 Surface Mining Inspectors and Supervisors

West Virginia proposes to change the probationary status for

surface mining supervisors and inspectors from one year to six months.

The Director has determined that this revision, for which there is no

direct Federal counterpart, is within the administrative discretion of

the regulatory authority, and is not inconsistent with the requirements

of SMCRA or the Federal regulations.

5. Sec. 22-3-7 Notice of Intent To Prospect

The State proposes to revise paragraph (f) to allow for the

promulgation of regulations, the development of application forms and

to require an application fee of $2,000 for prospecting operations

intending to remove more than 250 tons of coal. While there is no

direct Federal counterpart, the Director finds that proposed revisions

are consistent with the Federal requirements for coal exploration

permits at section 512 of SMCRA and are hereby approved.

6. Sec. 22-3-8 Surface Mining Reclamation Permit

The State has deleted subsections 8(a) and 8(b), and renumbered the

remaining subsections. The deleted subsections required coal mining

operations in existence at the time of the Secretary's approval (1981)

of the West Virginia program to obtain permits under the newly approved

program. The Director finds that the deletion of these out-of-date

provisions does not render the West Virginia program inconsistent with

SMCRA or the Federal regulations.

The State proposes to revise paragraph (1) of this section to allow

for the continued operation of a mine by the transferee pending

approval of the transfer application, and subject to the ownership and

control provisions at section 22-3-18(c). The Federal counterpart to

this provision at Sec. 506(b) of SMCRA does not refer specifically to

permit transfers. However, it does allow a successor in interest to

continue coal mining operations on the current permit while awaiting

approval of the regulatory of its application for a new permit. The

Director believes that allowing permit transfer applicants to mine

while they await a decision on their application for transfer of permit

is not inconsistent with the principles underlying Sec. 506(b) of

SMCRA, so long as the applicant is eligible for a permit Sec. 22-3-

18(c) (West Virginia's ownership and control provisions), and provides

adequate bond. Furthermore, the opportunity for public comment will

remain a meaningful one, since the regulatory authority may still

ultimately deny the application for the transfer based on information

obtained during the public comment period. Therefore, the Director is

approving the provision. West Virginia proposes to increase the surface

mining permit fee from $500 to $1,000 at paragraph (4). Also, as

provided in paragraph (h), the State proposes to make compliance with

the Workers' Compensation Program a requirement of permit approval.

There are no direct Federal counterparts. The Director finds that these

provisions are not inconsistent with the requirements of SMCRA or the

Federal regulations.

7. Sec. 22-3-9 Permit Application Requirements

West Virginia proposes to revise the eligibility requirements for

its Small Operator Assistance Program (SOAP) at paragraph (b). The

State is increasing the total annual production rate for SOAP

eligibility from 100,000 to 300,000 tons of coal. In addition, the

State has added language that identifies the services that are

reimbursable under SOAP. These new services include engineering

analyses and designs needed in the determination of probable hydrologic

consequences, cross-section maps and plans, geologic drilling and

statements of results of test borings and core samplings, preblast

surveys, fish and wildlife protection and enhancement plans, and the

collection of archaeological and historical information. The Director

finds that WVSCMRA Sec. 22A-3-9(b), as revised, is substantively

identical to and, therefore, no less stringent than the corresponding

SOAP provisions of section 507(c) of SMCRA.

At subsection 9(g), the State has added the word

``administratively'' in two locations to clarify that the provision

pertains to administratively complete applications. The term

``administratively complete application'' is defined at CSR 38-2-2.9.

The Director finds these changes to be consistent with section 510 of

SMCRA, and no less effective than the use of the term

``administratively complete application'' at 30 CFR 773.13 concerning

public participation in permit processing and the definition of the

term ``administratively complete'' at 30 CFR 701.5.

8. Sec. 22-3-9a Permit To Mine Two Acres or Less

The State has deleted (S.B. 579; June 7, 1991) this section which

contains special provisions governing surface mining operations of two

acres or smaller in size. Section 528(2) of SMCRA, which set forth the

corresponding Federal provisions, was repealed pursuant to Section 201

of Public Law 100-34. Therefore, the Director finds that the proposed

deletion will not render West Virginia's program less stringent than

SMCRA. In addition, the Director finds that the deletion of WVSCMRA

Sec. 22A-3-9a eliminates the need for further action regarding the

required amendments set forth at 948.16(c)(3), (4), (5) and (6), and

the disapproval and set-aside set forth at 30 CFR 948.12(d) and

948.13(b), respectively, and he is, therefore, removing them.

9. Sec. 22-3-13 Performance Standards

The State proposes to amend subparagraph (b)(10) to require that

operators avoid acid or toxic-mine drainage by preventing or removing

water from contact with toxic producing deposits, treating drainage,

and casing, sealing or managing boreholes, shafts and wells to keep

acid drainage from entering ground and surface waters. The Director

finds that this proposal is substantively identical to and, therefore,

[[Page 6515]]

no less stringent than, the corresponding Federal statute at section

515(b)(10)(A) of SMCRA.

West Virginia proposes to revise subparagraph (b)(15) to require

the mailing of the proposed blasting schedule to every resident within

one-half mile of the blasting site, and to provide any resident or

owner of a dwelling within one-half mile of any portion of the permit

area the right to a preblast survey. The Director finds that this

proposal is substantively identical to and, therefore, no less

stringent than, the corresponding Federal statute at section 515(b)(15)

of SMCRA.

In addition, the State proposes to revise subparagraph (b)(16)(C)

to provide that underground mining permits shall terminate if

operations have not commenced within three years of the date of permit

issuance. The Director finds that this proposal is substantively

identical to and, therefore, no less stringent than section 506(c) of

SMCRA.

The State also proposes to revise subparagraph (b)(22) to require

that rock to be used in durable rock fills not slake in water and not

degrade to soil material. The Director finds that this proposal is

substantively identical to and, therefore, no less effective than the

corresponding Federal provision set forth at 30 CFR 816.73(b).

Finally, West Virginia proposes to revise paragraph (e) to allow

the Director to promulgate rules that permit variances from approximate

original contour. The Director finds that this proposal is consistent

with that portion of section 515(e) of SMCRA which permits states with

approved programs to allow variances from the requirements to return a

steep slope area to its approximate original contour (AOC). Therefore,

this revision is approved, but only to the extent that it applies to

steep slope areas as defined at WVSCMRA Sec. 22-3-13(d). In addition,

the Director is requiring that West Virginia amend its program to limit

such variances to industrial, commercial, residential, or public

alternative postmining land use, in accordance with section 515(e)(2).

10. Sec. 22-3-15 Inspections

West Virginia proposes to revise paragraph (b)(1)(C) to require

that monitoring equipment be installed, maintained and used consistent

with WVSCMRA Sec. 22-3-9 rather than WVSCMRA Sec. 22-3-10 as currently

stated. The Director has determined that this correction of a cross-

reference will not render the West Virginia program inconsistent with

the requirements of SMCRA or the Federal regulations.

The State also proposes to delete the provision in paragraph (g)

which provides that permittees, employees and inspectors are not to be

held civilly liable for any injury sustained by a person accompanying

an inspector on an inspection. The Director finds that this deletion,

which resolves the concerns raised by OSM as set forth at 30 CFR

948.12(a) and 948.13(e), will not render the West Virginia program

inconsistent with the requirements of SMCRA or the Federal regulations.

The Director is, therefore, removing the disapproval at 30 CFR

948.12(a), and the corresponding set aside at 30 CFR 948.13(e).

Finally, the State is deleting from paragraph (g) the provision

that any person accompanying an inspector on an inspection shall be

responsible for supplying any safety equipment required. There is no

counterpart to this rule in the Federal program, and the Director finds

that the deletion of this provision will not render the West Virginia

program inconsistent with the requirements of SMCRA or the Federal

regulations.

11. Sec. 22-3-17 Notice of Violation

West Virginia proposes to revise paragraph (a) of this section to

make it mandatory to issue a notice of violation whenever any provision

of WVSCMRA, the regulations promulgated pursuant thereto or a permit

condition has not been complied with. In addition, the time set for

initial abatement of a notice of violation is proposed to be changed

from 15 to 30 days, and the maximum time allowed as a reasonable

extension is changed from 75 to 60 days. The Director finds that these

revisions are no less stringent than and are procedurally similar to

section 521(a)(3) of SMCRA.

In paragraph (a), the State also proposes to delete the provision

that exempts cessation orders that are released or expire within 24

hours after issuance from mandatory civil penalty assessment of seven

hundred fifty dollars per day per violation. While there is no direct

Federal counterpart, the Director finds that the deletion of this

provision will not render the State's program inconsistent with the

requirements of SMCRA or the Federal regulations.

The State proposes to revise paragraph (b) to allow the director to

suspend or revoke a permit upon the operator's failure to show cause

why the permit should not be suspended or revoked. In addition, if the

permit is revoked, the proposal states that the commissioner shall

initiate procedures to forfeit the operator's bond in accordance with

rules promulgated by the Director. The Director finds that the

proposals are consistent with the requirements of SMCRA at section

521(a)(4) and the Federal regulations at 30 CFR 843.13.

In addition, West Virginia proposes to recodify paragraph (d)(3) as

new subsection (e) in order to clarify that appeal rights and

procedures apply to all notices, orders and decisions of the

commissioner, not just those relating to civil penalty assessments; and

to recodify paragraph (d)(4) as new subsection (f) to clarify that

temporary relief provisions apply to all enforcement actions and

orders, but not to civil penalty assessments. The Director finds that

the proposed recodification will not render the State's program

inconsistent with the requirements of SMCRA or the Federal regulations,

and satisfies the requirements of 30 CFR 948.16(c) (8) and (9), which

are hereby removed.

West Virginia proposes to revise newly redesignated section (f) to

provide that the filing of a request for an informal conference or

formal hearing will not stay the execution of the order appealed from.

The Director has determined that this proposal is substantively

identical to and, therefore, no less stringent than the corresponding

Federal provision at section 525(a) of SMCRA. Finally, the State

proposes to revise section (f) to provide that where a request for

temporary relief from an order for cessation of operations is filed,

the commissioner shall issue his decision within 5 days of receipt of

the request. The Director finds that this proposal is substantively

identical to and, therefore, no less stringent than the corresponding

Federal provision at section 525(c) of SMCRA.

12. Sec. 22-3-18 Permit Approval

The State proposes to revise paragraph (a) of this section to

require the submission of a complete permit application before a

decision is rendered, and to provide that the applicant has the burden

of establishing that the application is in compliance with the program

requirements. The Director finds that the proposed revisions are

substantively identical to and, therefore, no less stringent than the

corresponding Federal statute at section 510(a) of SMCRA.

The State has amended paragraph (c) to require that permit

applications contain violation information on any surface mining

operation owned or controlled by the applicant, rather than just those

operations located in the state of West Virginia. The Director has

determined that this revision is substantively identical to and,

therefore,

[[Page 6516]]

no less stringent than the Federal law at section 510(c) of SMCRA.

In addition, section (c) has been revised to add that no permit may

be issued upon a finding of a demonstrated pattern of willful

violations of (in addition to West Virginia statute) other State or

Federal programs implementing SMCRA of such a degree as to indicate an

intent not to comply with the State statute or SMCRA. The Director

finds these changes to be substantively identical to and no less

stringent than section 510(c) of SMCRA and satisfies the concerns

raised in 30 CFR 948.12(g) and 948.13(f) which are hereby removed.

Finally, West Virginia is proposing to revise, in section (c), the

conditions under which a permit may be issued after revocation or

forfeiture, to include situations where the violations which resulted

in the revocation or forfeiture have not caused irreparable damage to

the environment. While there is no direct Federal counterpart, the

Director finds that the proposal is not inconsistent with the permit

approval provisions of section 510 of SMCRA.

13. Sec. 22-3-19 Permit Renewal and Revision Requirements

The State proposes to revise paragraph (a)(2) of this section by

deleting the references to incidental boundary revisions, and adding a

requirement that where a renewal application proposes to extend the

operation beyond the original boundaries, the portion of the renewal

application involving the new area is subject to the full permit

application requirements. The State clarified the intent of the

amendment by stating that the term ``full standards'' as used in

WVSCMRA Sec. 22-3-19(a)(2) means that for the area being added to the

permit, the applicant must satisfy all current permitting requirements

and is subject to all inspection and enforcement provisions and all

performance standards. In other words, it would be treated like a new

permit application (Administrative Record No. WV-932). Given this

clarification, the Director finds the revisions to be substantively

identical to and, therefore, no less stringent than section 506(d)(2)

of SMCRA.

In addition paragraph (a)(4) is amended to add a two thousand

dollar filing fee for any permit renewal for an active permit. The

Director finds that this proposal is not inconsistent with the permit

fee provisions in section 507(a) of SMCRA.

Finally, West Virginia proposes to revise section (b)(3) to provide

that where the permittee desires to add new area to a permit, the

original permit may be amended to include the new area, provided the

application for the new area is subject to all the procedures and

requirements applicable to applications for original permits. The

Director finds that the revision is substantively identical to and,

therefore, no less stringent than section 506(d)(2) of SMCRA.

14. Sec. 22-3-22 Designation of Areas Unsuitable for Mining

West Virginia proposes to revise paragraph (b) of this section by

deleting the word commissioner. As revised, the provision gives any

person having an interest which is or may be adversely affected the

right to petition the Director to have the area designated as

unsuitable for mining or to have such designation terminated. The

Director finds the proposal to be substantively identical to and,

therefore, no less stringent than section 522(c) of SMCRA.

15. Sec. 22-3-26 Surface Mining Operations Not Subject to the Act

The State proposes to delete paragraph (b) of this section which

provided an exemption for the extraction of coal by a landowner engaged

in construction. There is no direct Federal counterpart to this

exemption and the Director finds that the proposed deletion will not

render the West Virginia program inconsistent with the requirements of

SMCRA or the Federal regulations.

The exemption for government financed construction at paragraph (c)

is being revised to provide that coal extraction incidental to federal,

state, county, municipal, or other local government financed highway or

other construction is exempt from the requirements of the Act. The

Director finds that this provision is substantively identical to and,

therefore, no less stringent than section 528(2) of SMCRA.

The State also proposes to delete paragraph (d) which provided an

exemption for the extraction of coal affecting two acres or less. The

Director finds this proposal to be consistent with the provisions of

subsection 201(b) of Public Law 100-34 (effective June 6, 1987) which

repealed the two-acre exemption originally set forth at section 528(2)

of SMCRA and, therefore, the deletion of this provision will not render

the State's rules inconsistent with the requirements of SMCRA or the

Federal regulations. The Director is removing required amendment 30 CFR

948.16(c)(7) because with the deletion it is no longer relevant.

16. Sec. 22-3-28 Special Permits for Abandoned Coal Waste Piles

West Virginia proposes to revise paragraph (d) of this section by

deleting the word ``reprocessing'' and adding the word ``removal'' in

order to clarify that the special permit is solely for removal of

existing abandoned coal waste piles. The Director finds that this

revision will not render the State program inconsistent with the

requirements of SMCRA or the Federal regulations. The Director notes

that the implementing rules are located at CSR 38-2-3.14(d) (see

Finding B-9 below).

17. Sec. 22-3-40 National Pollutant Discharge Elimination System

(NPDES)

The State proposes to revise this section to require a filing fee

for an NPDES permit application of $500 and a filing fee for a renewal

application of $100. The Director finds that this proposal is not

inconsistent with the general permit fee provisions of section 507(a)

of SMCRA.

18. Sec. 22B-1-4 through 12 Environmental Boards; General Policy and

Purpose

The State is adding these provisions to the West Virginia program

to establish the requirements under which environmental boards will

operate. The Director finds that the provisions are not inconsistent

with SMCRA section 503 concerning state programs. The Director notes

that West Virginia's administrative hearings and appeals procedures are

the same or similar to those in sections 514 and 525 of SMCRA. The

Director is not approving 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 exception is inconsistent with

SMCRA sections 514(d) and 525(c). In addition, the Director is

requiring that West Virginia further amend Sec. 22B-1-7(d) to be

consistent with SMCRA sections 514(d) and 525(c).

Section 7(h) would allow the Surface Mining Board to consider

economic feasibility of treating or controlling discharges from surface

coal mining operations in appeals from decisions of an order, permit,

or official action. In this respect, the provisions are less stringent

than SMCRA section 515(b)(10) and less effective than the Federal

regulations at 30 CFR 816.42, because both require discharges to be

controlled or treated without regard to economic feasibility.

Therefore, the Director is not approving this language

[[Page 6517]]

to the extent that it would allow the Board to decline to order an

operator to treat or control discharges due to economic considerations.

In addition, the Director is requiring that West Virginia further amend

Sec. 22B-1-7(h) to be no less stringent than SMCRA section 515(b)(10)

and no less effective than the Federal regulations at 30 CFR 816.42, by

requiring discharges to be controlled or treated without regard to

economic feasibility.

19. Sec. 22B-3-4 Environmental Quality Board

This new provision establishes the Environmental Quality Board's

rule-making authority. Under WV S.B. 287, the provision authorizes the

promulgation of procedural rules granting site specific variances for

water quality standards for coal remining operations; providing minimum

requirements for procedures for granting variances; prohibits granting

variances without requirement of best available technology and best

professional judgement; prohibits granting variance without

demonstration of potential for improvement; and prohibits granting

variance if degradation will result. The Director finds the provision

is not inconsistent with SMCRA section 503 which provides that State

programs must have the capacity to establish rules and regulations to

carry out the purposes of SMCRA. The provision is also not inconsistent

with section 301(p) of the Federal Water Pollution Control Act (33

U.S.C. 1311) which allows alternate effluent limitations to be

established for coal remining operations. The Director notes that any

such procedural rules that grant variances must be submitted to OSM for

approval prior to their implementation.

20. Sec. 22B-4 Surface Mine Board

The State has renamed the ``Reclamation Board of Review'' the

``Surface Mine Board'' and has established new requirements under which

it operates. However, the amendment still requires that some board

members represent outside interests. Therefore, the Director finds that

these revisions do not materially affect the basis for OSM original

determination of the Board's multiple interest status. Since the Board

continues to represent multiple interests, its members are not

``employees'' within the meaning of section 517(g) of SMCRA and the

Federal regulations at 30 CFR 705.5. Therefore, the Director finds the

provisions of section 22B-4 to be not inconsistent with SMCRA section

503 concerning State programs, section 514 concerning decisions of

regulatory authority and appeals, and 517(g) concerning financial

interests of employees.

B. Proposed Revisions to the West Virginia Surface Mining Reclamation

Regulations

1. CSR Sec. 38-2-1.2 Applicability

West Virginia proposes to delete former paragraph (b) of this

subsection. The Director finds that the deletion satisfies the

disapproval codified at 30 CFR 948.12(h). 30 CFR 948.12(h) is hereby

removed.

West Virginia proposes to revise paragraphs (c) and (d) by

providing for the termination and reassertion of jurisdiction over a

completed surface mining and reclamation operation. The Director finds

that the amendments to paragraphs (c)(2) and (d) are substantively

identical to and no less effective than the Federal regulations at 30

CFR 700.11(d)(1)(ii) and (2), respectively, concerning termination of

jurisdiction. Subsection (c)(1) is less effective than the Federal

counterpart at 700.11(d)(1)(i) to the extent that subsection (c)(1)

does not require compliance with the Federal initial program

regulations at Subchapter B or the West Virginia permanent regulatory

program as a prerequisite to the termination of jurisdiction over an

initial program site. In addition, the Director is requiring that the

State further amend subsection (c)(1) to require compliance with the

Federal initial program regulations at Subchapter B or the West

Virginia permanent regulatory program regulations as a prerequisite to

the termination of jurisdiction over an initial program site.

2. CSR Sec. 38-2-2 Definitions

a. Chemical treatment. The WVDEP proposes to define ``chemical

treatment'' at subsection 2.20. This definition, among other

applications, applies to the bond release provisions at CSR 38-2-

12.2(e). CSR 38-2-12.2(e) prohibits bond release where chemical

treatment is necessary to bring water discharged from or affected by

the operation into compliance with effluent limitations or water

quality standards as set forth in CSR 38-2-14.5(b). In effect, for

example, under the proposed definition, bond would not be released

under Sec. 38-2-12.2(e) if water discharged from or affected by an

operation is being actively treated by chemical reagents (such as

sodium hydroxide or calcium carbonate) to bring a discharge into

compliance. The bond would be released, however, if that same water

were being treated, instead, by passive treatment systems (such as

wetlands or limestone drains) to bring the discharge into compliance.

The Director finds that the blanket exclusion of passive treatment

systems from the definition of chemical treatment would render the West

Virginia program less effective than the Federal regulations at 30 CFR

800.40(c)(3) concerning release of bond. 30 CFR 800.40(c)(3) provides

that no bond shall be fully released until reclamation requirements of

SMCRA are fully met. If treatment is necessary to maintain compliance,

whether it be active or passive treatment, then the hydrologic

protection standards of SMCRA section 515(b)(10) have not been fully

met and bond cannot be released. The withheld bond helps assure that

the required treatment will be continued. The fact that a treatment

system is ``passive,'' and may not require human intervention as

frequently as an ``active'' treatment system, does not diminish the

need for assurance that treatment will be provided as long as is

necessary to maintain compliance. Therefore, the Director is approving

the definition of ``chemical treatment'' except to the extent that it

would allow bond release where passive treatment systems are used to

achieve compliance with applicable effluent limitations as discussed

above. In addition, the Director is requiring that West Virginia

further amend the West Virginia program to clarify that bond may not be

released where passive treatment systems are used to achieve compliance

with applicable effluent limitations. This finding does not mean that

OSM is discouraging the use of mining and reclamation practices and the

use of passive treatment systems that help minimize water pollution. On

the contrary, when such practices and passive systems are designed into

the approved operations and reclamation plans, they become an integral

part of an effective program to minimize the formation of acidic or

toxic drainage. However, when such passive systems are used to treat a

discharge that would otherwise not be in compliance with effluent

discharge limitations, such systems are, in effect, chemical treatment

and bond release should not be granted. Passive treatment systems have

not yet been proven effective for all parameters or on a long-term

basis; their effectiveness appears to decrease over time. See OSM's

directive TSR-10, Use of Wetland Treatment Systems for Coal Mine

Drainage, for further information on this issue.

[[Page 6518]]

b. Impoundment or impounding structure; operator; prospecting; and

sediment control or other water retention structure, sediment control

or other water retention system, sediment pond. The Director finds the

proposed definition of ``impoundment or impounding structure'' at CSR

38-2-2.66 is substantively identical to the Federal definition at 30

CFR 701.5 and is removing the required amendment codified at 30 CFR

948.16(f).

The State is adding the proposed definition of ``operator'' at CSR

38-2-2.81. This definition is substantively identical to the proposed

statutory State definition of ``operator'' at Sec. 22-3-3. See Finding

A-3a above for a complete discussion. The Director finds the proposed

definition of ``operator'' is consistent with the Federal definitions

at section 701 of SMCRA and 30 CFR 701.5.

The Federal counterpart to the definition of ``prospecting,'' is

the Federal definition of ``coal exploration'' at 30 CFR 701.5. The

State and Federal definitions are different in that the Federal

definition includes all data gathering without consideration of whether

or not disturbance occurs. However, the Director finds the proposed

definition of ``prospecting'' at CSR 38-2-2.95, while different,

doesn't render the State program less effective than the Federal

regulations, in light of the fact that CSR 38-2-13.1 contains all the

appropriate requirements for a notice of intent to prospect where no

disturbance is anticipated (see Finding B30 below). The Director is

approving the definition of prospecting, and removing the required

amendment at 30 CFR 948.16(nn). In addition, the Director notes an

apparent inconsistency between the definition of prospecting at CSR 38-

2-2.95, which excludes the gathering of environmental data without

disturbance from the definition of prospecting, and the requirements

for a notice of intent to prospect at CSR 38-2-13, which recognize that

prospecting can include data gathering without disturbance. The State

may want to correct this.

The Director finds the definition of ``sediment control or other

water retention structure, sediment control or other water retention

system, or sediment pond'' at CSR 38-2-108 to be consistent with the

federal definition of ``siltation structure'' at 30 CFR 701.5 and can

be approved, and the required amendment at 30 CFR 948.16(n) is

partially satisfied.

3. CSR Sec. 38-2-3.1 Application Information

New subsection 3.1(o) is added to authorize the grouping of

ownership and control information by permittees who are so related by

the submittal and maintenance of a centralized ownership and control

file. Each file must contain required information at CSR Sec. 38-2-3.1

(a), (c), (d), and (l) and be updated at least quarterly. However, the

file must be complete and accurate during the time that an application

is pending. There is no counterpart to the proposed language. However,

the Director finds that the proposed provision is not inconsistent with

the Federal requirements at 30 CFR 773.15 concerning review of permit

applications and can be approved to the extent that all permit

applicants which maintain centralized ownership and control files are

also required to comply with all of the informational provisions

contained in CSR 38-2-3.1.

4. CSR Sec. 38-2-3.4 Maps

The State proposes to revise paragraph (d), subparagraphs (18),

(22), (23), and (24) to require that the permit application identify

each topsoil and noncoal waste storage area, each explosive storage and

handling facility and the area of land to be affected within the

proposed permit area according to the sequence of mining and

reclamation. This revision is intended to satisfy the requirements of

30 CFR 948.16(t). Paragraph (d)(23) concerning explosive storage

facilities has also been amended to read as follows: ``The location of

any explosive storage and handling facility; which will remain in place

for an extended period of time during the life of the operation.'' The

Director finds that the amendments are substantively identical to and

no less effective than the requirements of 30 CFR 780.14(b), and that

30 CFR 948.16(t) can be removed.

5. CSR Sec. 38-2-3.6 Operation Plan

West Virginia proposes to revise paragraph (k) of this subsection

to require the submission of a fugitive dust control plan. This

revision is intended to satisfy the requirements of 30 CFR 948.16(s).

The Director finds the amendment to be substantively identical to and

no less effective than 30 CFR 780.15(a)(2) concerning a plan for

fugitive dust control practices, and that 30 CFR 948.16(s) is satisfied

and can be removed.

6. CSR Sec. 38-2-3.7 Excess Spoil

The State proposes to delete the provision in paragraph (a) which

gives the Director authority to approve alternative design requirements

for excess spoil fills. This deletion satisfies the deficiency noted at

30 CFR 948.15(k)(3) and the requirement at 948.16(i) which can be

removed.

7. CSR 38-2-3.8 New and Existing Structures and Support Facilities

Subsection 3.8(a) is amended to require that each permit

application contain a description, plans, and drawings for each support

facility to be constructed, used or maintained within the proposed

permit area. The Director finds the proposed language to be

substantively identical to and no less effective than 30 CFR 780.38

concerning support facilities.

Subsection (d) is amended by adding a provision that will provide

for the permitting and bonding of a facility or structure that is to be

shared by two or more separately permitted mining operations. The

Director finds that the provision is substantively identical to and,

therefore, no less effective than the Federal provision concerning

shared facilities at 30 CFR 778.22 and can be approved.

8. CSR Sec. 38-2-3.12 Subsidence Control Plan

The State proposes to revise paragraph (a), subparagraph (5) to

require that measures be taken to mitigate or remedy material damage to

structures due to subsidence in accordance with subsection 16.2(c) and

(d) in addition to the existing requirement of meeting 16.2(a)

concerning surface owner protection. While there is no direct Federal

counterpart to this proposal, the Director finds the proposed revisions

to be consistent with the Federal requirements at 30 CFR 784.20(b)

concerning subsidence control plans. The State also proposes to delete

the phrase in paragraph (d), subparagraph (2) which does not require an

identification of measures to be taken to protect structures when the

applicant demonstrates the right to subside without liability. This

revision is consistent with the 1992 Energy Policy Act, which added

section 720 to SMCRA and requires repair or compensation by the

operator for material damage to structures caused by subsidence

regardless of any ``right to subside.''

9. CSR Sec. 38-2-3.14 Removal of Abandoned Coal Waste Piles

The State proposes to revise paragraph (a) of this subsection which

allows the State to issue a special permit solely for the removal of

existing abandoned coal processing waste piles.

[[Page 6519]]

The added language requires that if the average quality of the refuse

material can be classified as coal using the BTU standard in ASTM D

388-88, a permit application which meets all applicable requirements of

Sec. 38-2-3 shall be required. This revision is intended to satisfy the

deficiency of 30 CFR 948.15(k)(4). The Director finds the proposed

language is consistent with the Federal requirements at 30 CFR 773.11

concerning requirements to obtain permits and can be approved, and that

30 CFR 948.15(k)(4) is satisfied.

10. CSR Sec. 38-3.15 Approved Person

West Virginia proposes to revise its approved person requirements

in this subsection. The State is proposing to allow approved persons to

certify associated facilities. It also proposes to require the

submission of a registration or license in addition to a resume.

Finally, it proposes to delete the provisions which allow the director

to require a person to requalify for ``approved person'' status, and to

suspend or withdraw ``approved person'' status. Although there are no

Federal counterparts, the Director finds the proposed changes are not

inconsistent with SMCRA and the Federal regulations concerning

requirements for permits and permit processing, since the State has

retained the provision, at subsection 3.15(a), which states that

``approved person'' may only be designated by the regulatory authority

where the WVSCMRA does not otherwise prohibit such designations.

11. CSR Sec. 38-2-3.16 Fish and Wildlife Resources

The State proposes to revise paragraph (a) to this subsection

deleting the word ``approval''. Under the revised provision, the

regulatory authority will provide only for coordination of review of

permits where such coordination is appropriate pursuant to the Fish and

Wildlife Coordination Act (16 U.S.C. 661 et seq.). The Director finds

the proposed deletion does not render the West Virginia program less

effective than 30 CFR 780.16 concerning fish and wildlife information.

12. CSR Sec. 38-2-3.25 Transfer, Assignment or Sale of Permit Rights

The State proposes to revise paragraph (a), subparagraph (4) of

this subsection to provide that the approval of a transfer application

may be granted in advance of the close of the public comment period,

provided that the Director can immediately withdraw approval if

information is made available as a result of public comment that would

preclude approval. There is no direct Federal counterpart to the

proposed language. The Federal regulations at 30 CFR 774.17(b) provide

that an applicant for approval of the transfer, assignment, or sale of

permit rights shall (at (b)(2)) advertise the filing of the application

and identify where written comments may be sent. The State counterpart

to the notice requirements of 30 CFR 774.17(b)(2) is CSR 38-2-

3.25(a)(3). While the Federal requirements at 30 CFR 774.17(b)(2)

require public notice, they do not prohibit application approval prior

to the end of the public comment period. The State proposal provides

the regulatory authority with reasonable flexibility to promptly

conclude approvals of transfer, assignment or sale of permit rights

while also assuring that public comment is considered and in those

cases where public comment presented information that would preclude

approval, the State can immediately withdraw approval. The Director

finds that the proposed language is not inconsistent with the intent of

30 CFR 774.17 concerning transfer, assignment, or sale of permit rights

and can be approved. See Finding A6, above for the Director's approval

of the statutory provision at Sec. 22-3-8 concerning permit transfers.

Paragraph (a)(4) is also amended to add reference to subsection

``3.32(d)(7)'' (formerly subsection 3.31) which requires a finding by

the State that the applicant has paid all reclamation fees from

previous and existing operations. The Federal regulations at 30 CFR

774.17(d)(1) provide that an application for a transfer, assignment or

sale may be granted where the applicant is eligible to receive a permit

in accordance with 30 CFR 773.15(b) and (c). The State counterpart to

30 CFR 774.17(d)(1) is contained at CSR 38-2-3.25(a)(4).

This paragraph requires that applicants be eligible for permits in

accordance with CSR 38-2-3.32(c), which is the State counterpart to 30

CFR 773.15(b). However, subsection 3.25(a)(4), as proposed, adds a

cross-reference to only one portion of the State's counterpart to 30

CFR 773.15(c), namely, subsection 3.32(d)(7), pertaining to payment of

reclamation fees. The State has argued, and the Director agrees, that

the other findings contained in subsection 3.32(d) (30 CFR 773.15(c))

need not be made during the review of an application for transfer,

assignment or sale since these findings relate to the issuance of the

original permit, and should, therefore, remain valid. However, the

finding at subsection 3.32(d)(7), pertaining to payment of reclamation

fees, must be made, since it relates specifically to the applicant for

transfer, assignment or sale. Therefore, the Director finds that the

additional reference to subsection 3.32(d)(7) renders the State's

program no less effective than the Federal regulations at 30 CFR

774.17(d)(1) and can be approved.

The State also proposes to revise this subsection by revising

paragraph (c) and by adding paragraphs (d) and (e). These requirements

provide that permit assignments (operator reassignments) be advertised,

contain the ownership and control information required by Subsection

3.1 and subcontractors be subject to the eligibility requirements of

Subsection 3.32. This revision is intended to satisfy the requirements

of 30 CFR 948.16(v). Although there is no direct Federal counterpart,

the Director finds the added language is no less effective than 30 CFR

774.17, and that 30 CFR 948.16(v) is satisfied can be removed.

13. CSR 38-2-3.26 Ownership and Control Changes

The language of this subsection is new and governs the reporting of

name changes, replacements, and additions to the ownership and control

information for any surface mining operation or permittee. While there

is no direct Federal counterpart to the proposed language, the Director

finds that the proposed language is not inconsistent with 30 CFR 778.13

concerning identification of interests and 778.14 concerning violation

information and can be approved.

14. CSR 38-2-3.27(a) Permit Renewals and Permit Extensions

The WVDEP proposes to add a provision which will allow the Director

to waive the requirements for permit renewal if the permittee certifies

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

and regrading will be completed within 60 days prior to the expiration

date of the permit and that an application for Phase I bond release

will be filed prior to the expiration date of the permit. The proposal

also provides that failure to complete backfilling and grading within

60 days prior to the expiration date of the permit will nullify the

waiver. Finally, operations granted inactive status are also subject to

permit renewal requirements. The Director finds this provision to be

consistent with and no less effective than 30 CFR 773.11 which provides

that a permittee need not renew the permit if no surface coal mining

operations will be conducted under the permit and solely reclamation

activities remain to be done.

[[Page 6520]]

15. CSR Sec. 38-2-3.28 Permit Revisions

The State proposes to revise paragraph (b) in this subsection to

require that each application for a permit revision be reviewed by the

director to determine if an updated probable hydrologic consequences

determination (PHC) or cumulative hydrologic impact assessment (CHIA)

is needed. The Director finds the proposed revisions are substantively

identical to and, therefore, no less effective than the Federal

regulations at 30 CFR 780.21(f)(4) concerning PHC determinations.

The State also proposes to revise paragraph (c) to give the

Director the authority to require reasonable revision of a permit at

any time and to delete the provision which only required a revision to

assure adequate protection of the environment or public health and

safety. The revisions also require notice to the permittee of the need

for revisions and reasonable time for compliance. The Director finds

that the proposed revisions are similar to and no less effective than

the Federal regulations at 30 CFR 774.11(b) concerning review of

permits. These revisions satisfy the deficiency at 30 CFR 948.15(k)(5)

and the requirements of 948.16 (j) and (w). 30 CFR 948.16 (j) and (w)

are hereby removed.

16. CSR Sec. 38-2-3.29 Incidental Boundary Revisions (IBRs)

West Virginia proposes to revise its incidental boundary revision

(IBR) requirements in this subsection. The revisions in paragraph (a)

provide that IBRs will be limited to minor shifts or extensions into

non-coal areas or areas where coal extraction is incidental to or of

only secondary consideration of the intended purpose of the IBR. IBRs

will not be granted to abate a violation for encroachment beyond the

original permit boundaries, unless an equal amount of area is deleted

from the permitted area. Paragraph (b) is revised to allow IBRs for

underground mines to be larger than 50 acres when an applicant

demonstrates the need for a larger IBR. Also, applications for an IBR

must be accompanied by an adequate bond, a map showing the IBR area and

a reclamation plan for the area of the IBR. The State proposes to

delete subparagraph (6) which provides that all provisions of the IBR

which differ from the original permit meet the requirements of the Act

and regulations, except as provided in this subsection. Finally, the

State proposes to add paragraph (e) which gives the Director the

authority to require the publication of an advertisement that provides

for a ten-day public comment period for an IBR application.

There is no definition for ``incidental boundary revisions''

contained in either SMCRA or the Federal regulations. However, the

Director notes that under the proposed language IBR's will not be

authorized for surface or underground operations in cases where

additional coal removal is the primary purpose of the revision.

Therefore, the Director finds the proposed amendments to be consistent

with the principal intent of sections 511(a)(3) of SMCRA and 30 CFR

774.13(d) which pertain to incidental boundary revisions.

17. CSR Sec. 38-2-3.30 Variances

The State proposes to revise its variance requirements at

paragraphs (b), (c), (d) and (e) of this subsection. These paragraphs

set forth requirements for granting variances from contemporaneous

reclamation. These revisions are intended to satisfy the requirements

at 30 CFR 948.16(x). The Director finds the proposed language is

substantively identical to and no less effective than 30 CFR 785.18

concerning variances for delay in contemporaneous reclamation

requirements in combined surface and underground mining activities. The

Director also finds the revisions do satisfy the requirements at 30 CFR

948.16(x), which is hereby removed.

18. CSR 38-2-3.31(a) Exemption for Government Financed Highway or

Other Construction

The WVDEP proposes to revise its rules to allow exemptions from the

requirements of the WVSCMRA for county, municipal or other local

government-financed highway or other construction. The Director finds

this amendment to be consistent with and no less effective than the

Federal definitions of ``government financing agency'' and

``government-financed construction'' at 30 CFR 707.5.

19. CSR Sec. 38-2-3.32 Permit Findings

The State proposes to delete the provision in this subsection which

requires the WVDEP to use and update ownership and control information

from surrounding States in the issuance of permits. While there is no

direct counterpart to the language that is being deleted, the Director

finds the deletion does not render the West Virginia program less

effective than the requirements of 30 CFR 773.15(b) concerning review

of violations. The West Virginia program continues to provide for the

review of outstanding violations at CSR Sec. 38-2-3.32 (b) and (c).

20. CSR Sec. 38-2-3.33 Permit Conditions

The State proposes to delete subsection (i) concerning an annual

submittal of information required at Sec. 38-2-3.1. There is no direct

Federal counterpart to the deleted language. The Director finds the

proposed deletion does not render the West Virginia program less

effective than 30 CFR 773.17 concerning permit conditions. The West

Virginia program continues to retain at CSR 38-2-3.33(h) a counterpart

to 30 CFR 773.17(i) concerning notification requirements following

cessation orders.

21. CSR 38-2-3.34 Improvidently Issued Permits

The WVDEP proposes to amend paragraph (b) by inserting the phrase

``in paragraph (b) of subsection 3.32 of this section.'' This amendment

identifies where in the West Virginia program the violations review

criteria are located. The Director finds this change to be consistent

with and no less effective than 30 CFR 773.20(b)(1)(i).

Subparagraph (b)(3) has been amended by deleting the existing

language and adding in its place language that is substantively

identical to and no less effective than 30 CFR 773.20(b)(1)(iii).

New subparagraph (b)(4) has been added to provide that a permit

shall be determined to have been improvidently issued when the

permittee had a permit revoked or bond forfeited and has not been

reinstated, or the permittee was linked to a permit revocation or bond

forfeiture through ownership or control, at the time the permit was

issued and an ownership or control link between the permittee and the

person whose permit was revoked or whose bond was forfeited still

exists, or when the link was severed the permittee continues to be

responsible for the permit revocation or bond forfeiture. Although

there is no direct Federal counterpart, the Director finds the added

language to be consistent with the definition of ``violation notice''

at 30 CFR 773.5, which definition includes notices of bond forfeiture,

with 30 CFR 773.20 concerning improvidently issued permits.

Paragraph (c) is amended to add ``permit revocation or a bond

forfeiture'' to the list of circumstances that can cause a finding that

a permit was improvidently issued. While there is no direct Federal

counterpart, the Director finds the added language to be consistent

with the definition of ``violation notice'' at 30 CFR 773.5 and with 30

CFR 773.20(a)(1).

[[Page 6521]]

New subparagraph (d)(1)(E) is added to the list of circumstances

that could prevent an automatic suspension or rescission of a permit.

Under subparagraph (d)(1)(E), a permit would not be automatically

suspended or revoked if the permittee or other person responsible for

the permit revocation or bond forfeiture has been reinstated, pursuant

to section 18(c) of the WVSCMRA. While there is no direct Federal

counterpart, the Director finds the added language to be consistent

with 30 CFR 773.21(a) concerning automatic suspension or rescission of

permits.

West Virginia proposes to amend paragraph (f) of this subsection to

change the cross reference in that paragraph to subsection ``(e),''

Section 17 of WVSCMRA. The Director finds the change does not render

the West Virginia program less effective than 30 CFR 773.20(c)(2)

concerning appeals of suspensions or rescissions of permits determined

to have been improvidently issued.

Paragraph (g) is being revised to clarify that the term ``permit

issuance'' also includes permit transfers, assignments, or sales of

permit rights, as well as revisions for ownership and control purposes.

While there is no direct Federal counterpart, the Director finds the

added language is not inconsistent with 30 CFR 773.15 concerning review

of permit applications.

22. CSR Sec. 38-2-4 Haulageways, Roads, and Access Roads

West Virginia proposes to revise all of its haulroad regulations at

Section 4. The new haulroad and access road requirements provide for a

road classification system, plans and specifications, stream crossings,

standards for infrequently used roads, construction standards, drainage

design standards, performance standards, maintenance standards,

reclamation standards, primary road standards and certification. In

addition, Section 4 contains design, construction, maintenance and

abandonment requirements for other transportation facilities.

a. Sec. 38-2-4.1 (a) Road Classification System. The WVDEP

proposes to include haulageways and access roads under its road

classification system, and is defining ``primary road.'' The Director

finds these amendments to be substantively identical to and no less

effective than 30 CFR 816.150(a) concerning road classification system,

and 30 CFR 816.150(a)(2) concerning the definition of ``primary road.''

b. Sec. 38-2-4.2 Plans and Specifications. These amendments set for

the requirements for each road to be constructed, used, or maintained

within the permit area. The provisions specify that road designs are to

be certified as meeting the requirements of the WVSCMRA and

implementing rules. The WVDEP is also reorganizing its rules by

deleting the title ``4.3 Stream Crossings'' and designating paragraph

(a) of the deleted subsection 4.3 as paragraph (b) of subsection 4.2.

This reorganization is intended to clarify that CSR 38-2-4.2(b) applies

to all stream crossings, and is not limited to only roads in stream

channels. Under the proposed revisions, CSR 38-2-4.2(b) applies to all

roads whether they are within or crossing a stream. The Director finds

the proposed provisions to be consistent with 30 CFR 780.37(a)

concerning road systems; plans and drawings to the extent that the

provisions pertain to all roads, whether they are within or crossing a

stream. The Director notes that 30 CFR 780.37(a) cross references the

Federal regulations at 30 CFR 816.150(d)(1) (concerning the prohibition

against locating a road in the channel of a stream), and this in turn

cross-references other Federal hydrologic protection rules. The State

language does not contain a similar cross references in CSR 38-2-

4.2(b). The Director believes, however, that a lack of such cross

references does not render the State program less effective. The State

hydrologic protection standards apply regardless of whether or not they

are cross-referenced.

c. Sec. 38-2-4.3 Existing Haulageways or Access Roads. This

subsection provides that where it can be demonstrated that

reconstruction of existing haulageways or access roads to meet the

required design, construction, and environmental protection standards

of the West Virginia program would result in greater environmental

harm, such reconstruction may be exempt from the standards at

subsection 4.5(a)(1) and (2), and subsection 4.6(a)(2)(A) and (b),

where the sediment control requirements of CSR 38-2-5 can otherwise be

met. The provisions in the State program contain grade requirements for

roads. Since the Federal regulations contain no specific road grade

requirements, for roads. Since the Federal regulations contain no

specific road grade requirement but merely require, at 30 CFR

816.150(c), that designs include appropriate grade limits, the Director

finds these provisions to be consistent with and no less effective than

30 CFR 780.37(a) and 816.150(c) concerning plans and drawings.

d. Sec. 38-2-4.4 Infrequently Used Access Roads. This provision

requires that infrequently used access roads be designed to ensure

environmental protection appropriate for their planned duration and

use, and be constructed in accordance with current prudent engineering

practices and any necessary design criteria established by the

Director. A statement has been added to clarify that prospecting roads

are to be designed, constructed, maintained, and reclaimed in

accordance with subsection 13.6 which governs prospecting roads. Cross

references have also been revised. The Director finds the proposed

amendments to be consistent with and no less effective than 30 CFR

816.150(c) concerning design and construction limits and establishments

of design criteria.

Subsection 4.4 is also revised to provide that roads constructed

for and used only to provide for infrequent service to facilities used

in support of mining and reclamation operations may be exempt from all

haulroad requirements in CSR 38-2-4, except for subsections 4.2, 4.3,

4.5(a)(1), 4.5(b), 4.6(a), 4.7, and 4.8. These ``infrequently used

access roads'' include all roads defined as ``ancillary roads'' under

30 CFR 816.150(a)(3). Under the Federal regulations, ancillary roads

must comply with all requirements contained in 30 CFR 816.150. To be

consistent with the Federal regulations, the State program must require

that all ``infrequently used access roads'' comply with the State

program counterparts to 30 CFR 816.150. However, subsection 4.4, as

proposed, would exempt infrequently used access roads from the

requirements of subsection 4.9, which is the State program counterpart

30 CFR 816.150(f) pertaining to reclamation of roads. Therefore, the

Director is not approving subsection 4.4 to the extent that it exempts

infrequently used access roads from the requirements of subsection 4.9.

The Director is also requiring the State to amend its program to

require that all infrequently used access roads comply with CSR 38-2-

4.9.

e. Sec. 38-2-4.5 Construction. This provision sets forth the grade

limits for the construction of haulageways or access roads and the

tolerance standards for grade measurements and linear measurements.

While there are no direct Federal counterparts, the Director finds

these amendments to be consistent with 30 CFR 816.150(c), which

requires that designs for roads contain appropriate grade limits.

[[Page 6522]]

f. Sec. 38-2-4.6 Drainage Design. These amendments set forth the

standards for all drainage designs of haulageways or access roads. The

amendments also specify that culverts shall be installed and maintained

to sustain the vertical soil pressure, the passive resistance of the

foundation and the weight of the vehicles using the road. While there

are no Federal counterparts which apply to all roads, the Director

finds these amendments to be consistent with 30 CFR 816.150(c), which

requires that road designs contain plans for surface drainage control,

and 30 CFR 816.151(d) concerning drainage control for primary roads.

g. Sec. 38-2-4.7 Performance Standards. These amendments are

intended to set forth the performance standards for the location,

design, construction, reconstruction, use, maintenance, and reclamation

of roads. The Director finds the proposed amendments to be no less

effective than 30 CFR 816.150(b) concerning performance standards for

roads. The proposed changes governing sediment storage volume and

detention time as applied to drainage from roads are intended to

clarify that the regulatory authority may approve lesser storage values

than 0.125 acre/feet if compliance with the applicable effluent limits

and the general performance standards for roads can be achieved. OSM

conducted a study of West Virginia's 0.125 acre/feet standard and

determined that its application in West Virginia does not render the

State program less effective than the Federal regulations at 30 CFR

816.46(c)(1)(iii) (Administrative Record Number WV-890). The study did

not address the adequacy of lesser storage values. However, so long as

the end result is that applicable effluent limits are not exceeded,

West Virginia may allow the use of lesser storage values. Therefore,

the Director finds that the proposed language, which continues to

require compliance with the applicable effluent limitations and

performances standards for roads and providing the regulatory authority

with reasonable flexibility in implementing the West Virginia program,

does not render the West Virginia program less effective than the

Federal regulations at 30 CFR 816.46(c)(1)(iii) concerning siltation

structures.

h. Sec. 38-2-4.8 Maintenance. These amendments provide that roads

shall be maintained to meet the West Virginia performance standards for

roads and any additional standards specified by the State. Roads that

are damaged by catastrophic events shall be repaired as soon as is

practicable. The Director finds these amendments to be substantively

identical to and no less effective than 30 CFR 816.150(e) concerning

maintenance.

i. Sec. 38-2-4.9 Reclamation. These amendments set forth the

performance standards for roads that are not to be retained under the

approved postmining land use. With the exception of subsection 4.9(e),

the Director finds the amendments to be substantively identical to and,

therefore, no less effective than 30 CFR 816.150(f)(1-4), and (6),

concerning reclamation of roads. Subsection 4.9(e) contains drainage

and culvert requirements for road abandonment. While there are no

direct Federal counterparts, the Director finds these requirements to

be consistent with and, therefore, no less effective than the

requirement to protect the natural drainage contained in 30 CFR

816.150(f)(5).

j. Sec. 38-2-4.10 Primary Roads. These amendments set forth the

performance standards for primary roads. The Director finds these

amendments to be substantively identical to and, therefore, no less

effective than 30 CFR 816.151 concerning primary roads.

k. Sec. 38-2-4.11. Support Facilities and Transportation

Facilities. These amendments set forth the requirements for support and

transportation facilities such as railroad loops, spurs, sidings,

surface conveyor systems, chutes, and aerial tramways ``which are under

the control of the permittee.'' The Director is concerned that the

phrase ``which are under the control of the permittee'' could be

interpreted to exclude from these requirements certain support

facilities which are within the definition of ``surface coal mining

operations'' at 30 CFR 700.5. Therefore, the Director is approving this

amendment only to the extent that it does not exclude facilities that

are included within the definition of ``surface coal mining

operations'' at 30 CFR 700.5.

l. Sec. 38-2-4.12. Certification. This provision requires that,

upon completion of construction, all primary roads for which design

criteria were approved as part of the permit shall be certified. Where

the certification statement for a primary road indicates a change from

design standards or construction requirements in the approved permit,

such changes must be documented in as-built plans and submitted as a

permit revision. The Director finds the proposed language to be

consistent with and no less effective than 30 CFR 816.151(a) concerning

certification, and 30 CFR 774.13 concerning permit revisions.

This subsection also requires that all roads used for

transportation of coal or spoil, and which are constructed outside the

permitted coal extraction area shall be certified before they are used

for such transportation. Finally, any roads within the coal extraction

area which are constructed concurrently with progress of mining

activities shall be certified in increments of 1,000 linear feet as

measured from the active pit. While there are no Federal counterparts

to these two proposals, the Director finds that they are consistent

with 30 CFR 780.37(b) and 816.151(a).

23. CSR Sec. 38-2-5.2 Intermitteent or Perennial Streams

The State proposes to revise this subsection to provide that before

the director can approve any mining within 100 feet of an intermittent

or perennial stream, the director must find that such activities will

not cause or contribute to the violation of applicable State or Federal

water quality standards. The Director finds that the amendment

satisfies 30 CFR 948.16(aa) and can be approved. 30 CFR 948.16(aa) is

hereby removed.

24. CSR Sec. 38-2-5.4 Sediment Control

West Virginia proposes to revise paragraph (a) of this subsection

to make its sediment control requirements applicable to other water

retention structures, and it is deleting all references to on-bench

sediment control systems. The State has also deleted the reference to

the design, construction and maintenance criteria in the Technical

Handbook. The Director finds that this revision satisfies the

requirements of 30 CFR 948.15(k)(6) and 30 CFR 948.16(n) and can be

approved. The required amendment at 30 CFR 948.16(n) is hereby removed.

Paragraph (b) is revised to make its design and construction

requirements applicable to sediment control or other water retention

structures used in association with the mining operation. The State has

deleted references to on-bench sediment control structures. The

Director finds this deletion is consistent with the deletion at

paragraph 5.4(a), and does not render the West Virginia program less

effective than the Federal regulations at 30 CFR 780.25, 816,45, 816.46

and 816.49.

Subparagraph (b)(12) is revised to require that foundation

investigations and any necessary laboratory testing be performed to

determine foundation stability design for impoundments meeting the size

or other criteria of 30 CFR 77.216(a). This revision satisfies the

requirement at 30 CFR 948.16(pp) and can be approved, and 30 CFR

948.16(pp) can be removed.

[[Page 6523]]

Subparagraph (b)(13) has been revised to require that all sediment

control and other water retention structures be certified in accordance

with the design requirements of the Act and regulations and other

design criteria established by the Director. The Director finds the

proposed language to be consistent with and no less effective than 30

CFR 780.25 concerning reclamation plans for siltation structures,

impoundments, banks, dams, and embankments.

West Virginia proposes to revise paragraph (c) to make the

requirements of that paragraph applicable to all embankment type

sediment control or other water retention structures, including slurry

impoundments. The Director finds that this revision satisfies the

requirement at 30 CFR 948.16(qq) and can be approved. 30 CFR 948.16(qq)

is hereby removed.

Subparagraph (c)(3) is revised to require the installation of

cutoff trenches during embankment construction to ensure stability. The

Director finds that this revision satisfies the requirement at 30 CFR

948.16(rr) and can be approved. 30 CFR 948.16(rr) is hereby removed.

Subparagraph (c)(4) is revised to require prompt notification of

the State if any examination or inspection of an impoundment discloses

that a hazard exists. The Director finds that this revision satisfies

the requirement at 30 CFR 948.16(ss) and can be approved. 30 CFR

948.16(ss) is hereby removed.

Subparagraph (c)(6) is revised to require that the design plan for

an impoundment which meets the size criteria of 30 CFR 77.216(a)

include a stability analysis which includes but is not limited to

strength parameters, pore pressures, and long-term seepage conditions.

Subparagraph (c)(6) also provides that the design plan will include a

description of each engineering design assumption and calculation.

These revisions satisfy the requirements at 30 CFR 948.16(ccc) and can

be approved, and 948.16(ccc) can be removed.

Paragraph (d) has been revised to require that where sediment

control or other water retention structures are constructed in sequence

with the advance of the mining to allow for on-bench construction, such

systems shall be constructed and certified in sections of 1,000 linear

feet or less as measured from the active pit. While there is no direct

Federal counterpart to the proposed language, the Director finds that

the language is not inconsistent with 30 CFR 816.49(a)(3) concerning

design certification.

The State proposes to revise paragraph (e) to require the

inspection of sediment control or other water retention structures. The

State also proposes to require that the professional engineer, licensed

land surveyor, or other specialist involved in the inspection of

impoundments be experienced in the construction of impoundments. The

Director finds that this revision satisfies the requirement at 30 CFR

948.16(uu) and can be approved, and 948.16(uu) can be removed.

West Virginia proposes to revise paragraph (h) to make its

abandonment requirements applicable to sediment control and other water

retention structures. The Director finds that these changes do not

render the State program less effective than the Federal regulations,

and are consistent with the required amendment at 30 CFR 948.16(n) and

can be approved.

25. CSR 38-2-5.5 Permanent Impoundments

The WVDEP proposes to clarify that sediment or water retention or

impounding structures left in place after final bond release must be

authorized by the Director as part of the permit application or a

revision to a permit. The Director finds this revision partially

satisfies 30 CFR 948.16(vv) (the first sentence) and can be approved.

The Director is making this finding with the assumption that the

apparent typographical error in the first sentence of subsection 5.5

(``review'' should be ``revision'') will be corrected. The State has

also proposed to amend subsection 5.5(c) to require the landowner to

provide for sound future maintenance of a permanent impoundment. The

Director finds that this provision satisfies the requirement codified

in the second sentence of 30 CFR 948.16(vv). The proposed provisions

are approved, and 30 CFR 948.16(vv) is hereby removed.

26. CSR 38-2-6 Blasting

a. Sec. 38-2-6.3(b) Public Notice of Blasting Operation. This

subsection is amended to require that all local governments and

residents or owners of dwellings or structures located within one-half

mile of the blast site be notified of surface blasting activities

incident to an underground mine. The State also proposes to require

that the blasting notification be announced weekly, but in no case less

than 24 hours before the blasting will occur. The Director finds the

amended language to be substantively identical to and no less effective

than 30 CFR 817.64(a).

b. Sec. 38-2-6.6 Blasting Control for Other Structures. The State

proposes to revise Subsection 6.6 to require that all non-protected

structures in the vicinity of the blasting area be protected from

damage by the establishment of a maximum allowable limit on ground

vibration specified by the operator in the blasting plan and approved

by the Director. The Director finds that this revision satisfies the

requirement at 30 CFR 948.16(cc) and can be approved. 30 CFR 948.16(cc)

is hereby removed.

c. Sec. 38-2-6.8 Preblast Survey. Subparagraph 6.8(a) is amended

to delete language that excludes a certain portions of the permit area

when determining the applicability of preblast survey notification

requirements. The Director finds this revision satisfies the

requirements of 30 CFR 948.15(k)(7) and 948.16(l) and can be approved.

30 CFR 948.16(l) is hereby removed.

27. Sec. CSR 38-2-8.1 Protection of Fish and Wildlife and Related

Value

West Virginia proposes to add an exception to paragraphs (e)(1) and

(e)(3) of Subsection 8.1 to require the use of the best technology

currently available to protect raptors and large mammals, except where

the Director determines that such requirements are unnecessary. The

Director finds the added language to be substantively identical to and

no less effective than 30 CFR 816.97(e)(1) and (3).

28. CSR Sec. 38-2-9 Revegetation

The State proposes to revise paragraphs (g) and (h) of Subsection

9.3 to require that, in determining success on areas to be developed

for forestland and wildlife resources or commercial woodlands, the

trees and shrubs counted be healthy and in place for not less than two

growing seasons. This revision is intended to satisfy OSM's Regulatory

Reform III letter of March 6, 1990. The Director finds these amendments

to be substantively identical to and no less effective than 30 CFR

816.116(b)(3)(ii) concerning revegetation, standards for success.

29. CSR Sec. 38-2-11.1 Insurance

The State proposes to revise paragraph (a) of this subsection to

clarify that liability insurance must be maintained throughout the life

of the permit or any renewal thereof. The State also proposes to revise

this paragraph to provide that there are no exclusions for blasting

from the property damage coverage. The Director finds the proposed

amendments are substantively identical to and no less effective than 30

CFR 800.60 concerning terms and conditions for liability insurance.

[[Page 6524]]

30. CSR Sec. 38-2-13 Notice of Intent to Prospect

Subsection 13.1 is added to this section. Under this subsection,

where prospecting operations are proposed without surface disturbance

and without appreciable impacts on land, air, water, or other

environmental resources, the Director may waive the requirements of

this section and the bonding requirements of Sec. 22A-3-7 of the

WVSCMRA. To qualify, at least 15 days prior to commencement of any

prospecting activities, the operator must file with the Director a

written notice of intent to prospect. The notice must include a

description of the activities to be conducted and a USGS topographic

map showing the area to be prospected. The Director may approve the

notice of intent subject to the findings required by paragraph (b) of

Subsection 13.4. CSR 38-2-13.4(b) provides that the regulatory

authority, to approve an application, must find, in writing, that the

applicant has demonstrated that the prospecting operation will be

conducted in accordance with section CSR 38-2-13, and other applicable

provisions of the State regulations and statute, and the application.

This revision is intended to satisfy in part the requirements of 30 CFR

948.15(l)(2). The Director finds that the proposed language is no less

effective than 30 CFR 772.11 concerning notice requirements for

exploration removing 250 tons of coal or less. The Director notes that

where no surface disturbance or other appreciable impacts caused by

coal exploration are anticipated, and no lands unsuitable are involved,

applicants will not have some of the information required by 30 CFR

772.11, such as information related to drilling and trenching located

at 772.11(b)(3) and reclamation located at 772.11(b)(5).

Subsection 38-2-13.5(b) concerning performance standards for

prospecting roads is deleted and new requirements for prospecting roads

are established at CSR 38-2.13.6. The new provisions provide the

environmental standards relevant to the location, design, construction

or reconstruction, use, maintenance, and reclamation of prospecting

roads. The Director finds the proposed standards are substantively

identical to and no less effective than 30 CFR 816.150 concerning

general performance standards for roads.

Subsection 13.10 is revised to provide that, notwithstanding any

other provision of this section, any person who proposes to conduct

prospecting operations on lands which have been designated as

unsuitable for surface mining pursuant to Sec. 22A-3-22 of the WVSCMRA

shall file a notice of intent in accordance with Subsection 13.3.

Approval of the notice of intent shall be in accordance with Subsection

13.4. The Director finds the amendment to be consistent with and no

less effective than 30 CFR 772.11(a).

31. CSR Sec. 38-2-14.5 Hydrologic Balance

West Virginia proposes to revise paragraph (b) of this subsection

to require that monitoring frequency and effluent limitations be

governed by the standards set forth in a National Pollutant Discharge

Elimination System (NPDES) permit issued pursuant to Sec. 20-5-1 et

seq. of the West Virginia Code, the Federal Water Pollution Control Act

as amended, 33 U.S.C. 1251 et seq. and the rules and regulations

promulgated thereunder. The Director finds these amendments to be

consistent with and no less effective than 30 CFR 816.42 concerning

water quality standards and effluent limitations.

Paragraph (c) has been revised to require that any water discharged

from a permit area and treated complies with the requirements of

paragraph (b) of this subsection, pertaining to NPDES permits. The

Director finds this amendment is consistent with and no less effective

than 30 CFR 816.42 concerning water quality standards and effluent

limitations.

Paragraph (h) has been revised to provide that a waiver of water

supply replacement rights granted by a landowner can apply only to

underground mining, provided that it does not exempt any operator from

the responsibility of maintaining water quality. Under section

720(a)(2) of SMCRA and 30 CFR 816.41(j), the permittee must promptly

replace any drinking, domestic, or residential water supply that is

contaminated, diminished, or interrupted by underground mining

activities conducted after October 24, 1992, if the well or spring was

in existence before the permit application was received. Such water

supplies may be replaced by restoring a spring or an aquifer, or by

providing water from an alternative source, such as from another

aquifer or from a public water supply or a pipeline from another

location.

While a landowner may not desire the replacement of a water supply

on his or her property, a waiver is only permissible under the

circumstances set forth in paragraph (b) of the definition of

``Replacement of water supply'' at 30 CFR 701.5.

The definition of ``Replacement of water supply'' at 30 CFR 701.5

provides that, at paragraph (b), if the affected water supply was not

needed for the land use in existence at the time of loss,

contamination, or diminution, and if the supply is not needed to

achieve the postmining land use, replacement requirements may be

satisfied by demonstrating that a suitable alternative water source is

available and could feasibly be developed. If the latter approach is

selected, written concurrence must be obtained from the water supply

owner.

Therefore, the waiver of water supply proposed to be authorized by

the State must be consistent with the definition of ``Replacement of

water supply'' at 30 CFR 701.5. The Director notes that while section

720(a)(2) of SMCRA does not expressly authorize waivers, the

regulations implementing this provision recognize that waivers are

appropriate under certain circumstances, provided the permittee

demonstrates that an alternative source is available. However, under

the definition, no waivers (source or delivery system) are permissible

if the water supply is needed for either the existing land use or the

approved postmining land use.

The Director finds that the proposed language is not inconsistent

with SMCRA and the Federal regulations except to the extent that the

proposed waiver would not be implemented in accordance with the

definition of ``Replacement of water supply'' at 30 CFR 701.5. The

Director also finds that this revision satisfies the requirements of

948.16(q), and that 30 CFR 948.16(q) can be removed. In addition, the

Director is requiring that the West Virginia program be further amended

to clarify that under 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,'' paragraph

(b), at 30 CFR 701.5.

32. CSR Sec. 38-2-14.8 Steep Slope Mining

The State proposes to revise subparagraph (1) of paragraph (a) of

this subsection to provide that casting of spoil from a higher seam to

a lower seam in multiple seam operations may only occur where the

highwall of the lower seam intersects the outcrop of the upper seam;

the lowest seam is mined first or in advance of the upper seams; and

minimum bench widths based on slopes are established on the lower bench

sufficient to accommodate both spoil placement from the upper seam and

bench drainage structures. This revision is intended to satisfy in part

the requirements of 30 CFR 948.15(1)(2) by

[[Page 6525]]

preventing the placement of spoil on natural intervening slopes.

The Federal rules do not specifically address the use of cast

blasting as a means of spoil transport in multi-seam operations.

However, this practice is not inherently inconsistent with any Federal

requirement. The State rule does not exempt these operations from

compliance with other applicable requirements of the approved program.

Instead, it would provide additional assurance that cast lasting is

conducted in a safe and environmentally sound manner. For example, any

State authorized cast blasting would necessarily have to comply with

the approved State blasting provisions at CSR 38-2-6, such as the State

rules controlling flyrock at CSR 38-2-6.5(d). The approved State

requirements for the compaction and stability (a 1.3 static safety

factor is required) of the backfill at CSR 38-2-14.8(a)(4) also apply.

In some cases, the stability analysis might require that certain

materials need to be rehandled to place spoil in its final place or to

achieve adequate compaction of the backfill.

The approved State requirements for contemporaneous reclamation at

CSR 38-2-14.15 also apply. The approved State prohibition at CSR 38-2-

14.8(a)(1) of placing spoil on the downslope also applies. Where excess

spoil is involved, the approved State requirements at CSR 38-2-14.14

would also apply. The required amendment codified at 30 CFR 948.16(xx)

is being revised to require that the State amend its program at CSR 38-

2-14.8(a) to specify design requirements of outcrop barriers that will

be the equivalent of natural barriers and will assure the protection of

water quality and insure the long-term stability of the backfill. With

these considerations in mind, the Director finds that the amendment to

allow the use of cast blasting is not prohibited by or otherwise

inconsistent with SMCRA and the Federal regulations at 30 CFR 816.107

concerning backfilling and grading of steep slopes. The Director is

taking this opportunity to delete the required amendments codified at

30 CFR 948.16(yy) and (zz). The required amendments are being removed

because the West Virginia rules that had the deficiencies were never

approved by the West Virginia legislature and do not appear in the

latest submittal of the rules.

The State also proposes to revise subparagraph (4) of paragraph (a)

to prohibit placement of woody materials in the backfill unless the

Director first determines that the method of placement of woody

material will not deteriorate the future stability of the backfilled

area. The Director finds the amended language substantively identical

to 30 CFR 816.107(d), and that this revision satisfies the requirement

at 30 CFR 948.16(hh). 30 CFR 948.16(hh) is hereby removed.

33. CSR Sec. 38-2-14.11 Inactive Status

West Virginia proposes to revise paragraph (b) of this subsection

to provide that the Director may grant inactive status for a period not

to exceed one-half the permit term if it is determined that the

application contains sufficient information to meet all requirements of

paragraph (a): Provided that where the applicant documents in the

application that the operations will become inactive for more than 30

days, but will be reactivated on an intermittent and/or irregular basis

during the approval period, such operations are not required to reapply

for inactive status except at the termination date of the initial term

of approval: Provided, however, that the Director may review the

approval of inactive status during its term and require updated

information pursuant to paragraph (a) and, based upon this or other

information, may modify or rescind the approval prior to its initial

termination date. The Director finds the amended language to be no less

effective than 30 CFR 816.131 concerning temporary cessation of

operations, which requires notification to the regulatory authority by

the operator of any intention to temporarily cease mining for more than

30 days.

34. CSR Sec. 38-2-14.12 Variance From Approximate Original Contour

Requirements

West Virginia proposes to revise paragraph (a)(6) to provide that

the Director may grant a variance from the requirements for restoring

the mined land in steep slope areas to approximate original contour if

the watershed of the permit and adjacent area will be improved by

reducing pollutants, environmental impacts, or flood hazards; provided

that, the watershed will be deemed improved only if the amount of total

suspended solids or other pollutants discharged to ground or surface

water from the permit area will be reduced, or flood hazards will be

reduced, and if changes in seasonal flow volumes from the proposed

permit area will not adversely affect surface water ecology or any

existing or planned use of the surface or ground water. The Director

finds that this change satisfies the requirement at 30 CFR 948.16(ii)

and is no less effective than 30 CFR 785.16(a)(3)(i) and (ii). 30 CFR

948.16(ii) is hereby removed.

35. CSR 38-2-14.14 Disposal of Excess Spoil

Subsection (e)(2) provides that the valley fills shall be designed

to assure a long-term static safety factor of 1.5 or greater. The

Director finds that this provision satisfies 30 CFR 948.16(jj) which

can be removed, and is no less effective than 30 CFR 816.71(b)(2)

concerning excess spoil. 30 CFR 948.16(jj) is hereby removed.

Subsection (e)(10) is amended to limit the maximum grade from the

outslope of a valley fill toward the rock core to three percent. The

Director finds this amendment to be substantively identical to and no

less effective than 30 CFR 816.72(b)(3) concerning slopes of valley and

head-of-hollow fills.

36. CSR 38-2-14.15 Contemporaneous Reclamation Standards

West Virginia has completely revised this subsection to require

that the mining and reclamation plan for each operation describe how

the mining and reclamation operations will be coordinated to minimize

total land disturbance and to keep reclamation operations as

contemporaneous as possible with the advance of mining operations. The

revised provisions specify time, distance and acreage limits for single

seam contour mining, single seam contour mining and auger operations,

area mining, augering, multiple seam mining, and mountaintop removal

operations. The proposed rules set deadlines for existing and new

operations to comply with these requirements, and they allow the

Director to grant variances to specific standards with proper

justification. The Director finds these amended provisions to be

consistent with and no less effective than 30 CFR 816.100 concerning

contemporaneous reclamation, and the backfilling and grading

requirements at 30 CFR 816.102. The Director notes that 30 CFR 816.101

concerning time and distance requirements for contemporaneous

reclamation is suspended (57 FR 33875; July 31, 1992) and cannot be

used as a standard against which to judge the effectiveness of State

programs. As such, the Federal regulations do not contain specific time

and distance requirements, but only require, at 30 CFR 816.100, that

reclamation efforts occur as contemporaneously as practicable with

mining operations.

Subsection (m) is amended to add provisions governing the placement

of coal processing waste in the backfill. Under the proposed provision,

compaction shall be in accordance with CSR 38-2-22.3(p) and shall

achieve a

[[Page 6526]]

minimum static safety factor of 1.3. The coal processing waste shall

not contain acid-producing or toxic-forming material and shall be

placed in a controlled manner to: minimize effects on surface and

groundwater quality and quantity; ensure mass stability; ensure

suitable reclamation and revegetation compatible with the postmining

land use; not create a public hazard; and prevent combustion. Such

disposal facilities must be designed using current prudent engineering

practices and must meet any design criteria established by the

regulatory authority. Designs must be certified by a qualified

registered professional engineer. Any potential hazards must be

promptly reported. The Director finds these amendments do not render

the State program less effective than 30 CFR 816.81 (a) and (c)(1). 30

CFR 816.81(b) does not apply because the State is not proposing to

allow coal waste from activities located outside the permit area to be

placed in the backfill. 30 CFR 816.81(d) does not apply because the

coal waste will be placed in the backfill, and not in a refuse pile.

The State has proposed a static safety factor of 1.3 which is identical

to that required at 30 CFR 816.102(a)(3) concerning backfilling and

grading; general standards. The 1.3 static safety factor is the

appropriate factor to require, since the proposed provision concerns

placing coal waste in a backfill and not in a waste pile. Finally, the

Director notes that all the State provisions concerning the protection

of the hydrologic balance will continue to apply. The prohibition in

the proposed language to the placement of acid-producing and toxic-

forming material in the backfill will help assure the protection of the

hydrologic balance.

37. CSR Sec. 38-2-14-17 Control of Fugitive Dust

West Virginia proposes to revise this subsection to require that

all exposed surface areas be protected and stabilized to effectively

control erosion and air pollution attendant to erosion.

The Director finds this revision to be substantially identical to

and, therefore, no less effective than the Federal regulations at 30

CFR 816.95(a).

38. CSR 38-2-14.18 Utility Installations

WVDEP proposes to add a provision requiring that all surface mining

operations be conducted in a manner that minimizes damage, destruction,

or disruption of services provided by utilities. The Director finds the

added provision to be substantially identical to and, therefore, no

less effective than 30 CFR 816.180 concerning utility installations.

39. CSR 38-2-14-19 Disposal of Noncoal Waste

WVDEP proposes to add provisions to regulate the disposal of

noncoal waste such as grease, lubricants, garbage, abandoned machinery,

lumber and other materials generated during mining activities. Under

the proposal, final disposal of noncoal waste will be in accordance

with a permit issued pursuant to Chapter 22, Article 15 of the Code of

West Virginia (Solid Waste Management Act). The Director finds these

provisions consistent with the Federal regulations at 30 CFR 816.89(b)

which allows operators to dispose of noncoal mine waste in State-

appointed solid waste disposal areas outside of the permit area.

The proposed provisions would also allow timber from clearing and

grubbing operations to be wind-rowed below the projected toe of the

outslope. The Director finds these provisions to be non inconsistent

with the Federal regulations at 30 CFR 816.89 concerning disposal of

noncoal mine wastes. However, the proposed windrowing is less effective

than the Federal steep slope regulations at 30 CFR 816.107(b). 30 CFR

816.107(b) prohibits the placement of debris, including that from

clearing and grubbing, on the downslope in steep slope areas.

Therefore, the Director is approving the proposed amendments except to

the extent that windrowing would be allowed on the downslope in steep

slope areas. In addition, the Director is requiring that West Virginia

further amend CSR 38-2-14.19(d) to clarify that windrowing will not be

allowed on the downslope in steep slope areas.

40. CSR 38-2-15.2 Backfilling and Regrading; Underground Mines

The State proposes to revise paragraph (b) of this subsection to

require that reclamation activities of an underground mine be initiated

within 30 days of completion of underground operations. The Director

finds the proposed amendment to be consistent with 30 CFR 817.100

concerning contemporaneous reclamation.

41. CSR 38-2-16.2 Subsidence Control; Surface Owner Protection

West Virginia proposes to revise paragraph (c) of this subsection

by deleting the phrase, ``To the extent required under applicable

provisions of State law.'' This revision is intended to correct the

deficiency noted at 30 CFR 948.15(k)(11). The Director finds the

proposed deletion does not render the West Virginia program less

effective than 30 CFR 817.121(c)(2), and satisfies the deficiency noted

at 30 CFR 948.15(k)(11).

42. CSR Sec. 38-3-17 Small Operator Assistance Program (SOAP)

The State is making numerous changes to its SOAP provisions.

a. Subsection 17.1 is amended to identify services fundable under

the SOAP and to provide that the State will develop procedures for the

interstate exchange of SOAP information. While there is no Federal

counterpart to interstate exchanges of SOAP information, the Director

finds these changes to be consistent with and no less effective than 30

CFR 795.9 concerning program services and data requirements, and no

less stringent than section 507(c)(2) of SMCRA, concerning the

assumption of training costs.

b. Subsection 172. is amended to clarify that requests for SOAP

assistance must be in writing. The Director finds the amendment to be

consistent with 30 CFR 795.7 concerning filing for assistance.

c. Subsection 17.3 is amended to increase the production limit of

those operators eligible for assistance under the SOAP from 100,000 to

300,000 tons. The State is also raising, at 17.3(b)(1), the threshold

ownership percentage for which coal production from an operation will

be attributed to the applicant from five percent to ten percent

interest. Finally, the State is requiring that all coal produced by

operations owned by persons who directly or indirectly control the

applicant by reason of direction of the management be attributed to the

applicant. The Director finds these changes to be substantively

identical to counterpart provisions at 30 CFR 795.6(a). In addition,

the requirement at 30 CFR 948.16(kk) is satisfied and is hereby

removed.

d. Subsection 17.4 is amended to require SOAP applicants to use

application forms and format provided by the State. While there is no

direct Federal counterpart, the Director finds these changes to be

consistent with 30 CFR 795.7 concerning filing for assistance.

e. Subsection 17.5 is amended to provide that applicants be

notified in writing of approval or denial of a SOAP application. This

subsection is also amended to add that contractors may be used for SOAP

assistance to qualified laboratories. The Director finds these changes

to be consistent with and no less effective than 30 CFR 795.8(a)

concerning application approval and

[[Page 6527]]

notice, and 795.10(b) concerning subcontractors.

f. Subsection 17.6 is amended to add the term SOAP contractor, and

to provide that the laboratory or contractor must be qualified to

perform the required determinations and statements. The Director finds

the changes to be consistent with and no less effective than 30 CFR

795.10 concerning qualified laboratories and subcontractors.

g. Subsection 17.7(a)(4) and 17.7(a)(5) are amended to clarify that

operator liability will be based on actual and attributed annual

production for all locations of 300,000 tons during the 12-month period

immediately following permit issuance. The Director finds this

provision to be substantively identical to and no less effective than

30 CFR 795.12(a)(2), concerning applicant liability.

Subsection 17.7(b) is amended to require applicants to submit

written statements with sufficiently demonstrate that the applicant has

acted in good faith at all times prior to the State waiving the

reimbursement obligation. The Director finds this provision to be

substantively identical to 30 CFR 795.12(b).

43. CSR Sec. 38-2-18.3 Review of Decision Not to Inspect or Enforce

Subsection 18.3(b) has been revised to provide that any person who

is or may be adversely affected by the decision of the Director not to

inspect or enforce may appeal such decision to the Surface Mine Board

pursuant to Sec. 22-4-2 of the Code of West Virginia. The Director

finds the amended language to be substantively identical to and no less

effective than 30 CFR 842.15(d) concerning review of decision not to

inspect or enforce.

44. CSR Sec. 38-2-20.1 Inspection Frequencies

The State proposes to revise paragraph (a) of this subsection to

provide that prospecting operations be inspected ``as necessary'' to

assure compliance with the Act and these regulations. The Director

finds the proposed language to be substantively identical to and no

less effective than 30 CFR 840.11(c) concerning inspections by State

regulatory authorities.

45. CSR Sec. 38.2-20.2 Notices of Violations

Paragraph (a) of this subsection has been amended to provide that

when the Director determines that a surface mining and reclamation

operation or prospecting operation is in violation of any of the

requirements of the Act, these regulations or the terms and conditions

of the permit or prospecting approval, a notice of violation shall be

issued. Such notice of violation shall comply with all the requirements

and provisions of this subsection. In the past, pursuant to its Code of

Violations, the State issued enforcement actions rather than notices of

violation, for certain violations. This proposal will only allow the

issuance of a notice of violation. The Director finds the added

language no less effective than 30 CFR 843.12(a)(1) concerning notices

of violations.

Subparagraph (b)(3) has been amended to change the maximum initial

abatement period from 15-days to 30-days. This change is proposed to

render the regulations consistent with 22-3-17(o) of WVSCMRA which now

provides for an initial abatement period of 30 days, followed by a

maximum additional abatement period of 60 days following issuance of a

cessation order. The Director finds the change is reasonable and does

not render the West Virginia program less effective than 30 CFR

843.12(b)(3) concerning abatement of violations, or less stringent than

section 521(a)(3) of SMCRA, which allows a maximum total abatement

period of 90 days, following issuance of a notice of violation and

cessation order.

46. CSR Sec. 38-2-20.4 Show Cause Orders

West Virginia proposes to revise paragraph (b) of this subsection

by adding the phrase, ``where violations were cited.'' The proposal

provides that the Director may determine a pattern of violations exists

or has existed where violations were cited on two or more inspections

of the permit area within any 12-month period. The Director finds the

proposed change to be substantively identical to and no less effective

than 30 CFR 843.13(a)(2) concerning pattern of violations.

47. CSR Sec. 38-2-20.5 Civil Penalty Determinations

Paragraph (b) has been revised to provide that the Director shall,

for ``any'' cessation order, assess a civil penalty in accordance with

Sec. 22-3-17(a) of the WVSCMRA for each day of continuing violation,

except that such penalty shall not be assessed for more than 30 days.

In accordance with this change, the sentence requiring that imminent

harm cessation orders shall have an initial assessment in accordance

with subsection 20.7 of the regulations is deleted. The State now

assesses all cessation orders, including imminent harm cessation

orders, as if they were failure-to-abate cessation orders. That is,

they are assessed a civil penalty at the rate of $750 per day, for 30

days, beginning with the issuance date.

The Director finds that these proposed changes return the State

program to its former practice of assessing imminent harm cessation

orders as failure to abate cessation orders.

This practice was included in West Virginia's original permanent

program submittal, which OSM approved on January 21, 1981 (46 FR 5916-

5956). However, in 1991, West Virginia proposed to change this long-

standing practice to require that imminent harm cessation orders be

assessed according to the State's point system at CSR 38-2-20.7. The

Director did not approve this proposed change, noting that the State

failed to retain the requirement that civil penalties be assessed for

cessation orders in all instances, and that violations in imminent harm

cessation orders be assessed an additional penalty of $750 for each day

the failure to abate continues. The Director also questioned whether

the State has statutory authority to assess imminent harm cessation

orders using the point system (56 FR 58306, 58307; November 19, 1991).

Because of these deficiencies, the Director imposed a required

amendment, which is codified at 30 CFR 948.16(ddd) (Id. at 58311).

Within the current proposal to return to its former practice, West

Virginia has revised CSR 38-2-20.5(b) to require the assessment of

civil penalties for ``any'' cessation orders, in accordance with

Sec. 22-3-17(a), which requires that failure to abate cessation orders

be assessed at $750 per day for each day the failure to abate

continues. As such, imminent harm cessation orders will be assessed

penalties of $750 per day for each day a violation continues, both

before and after the target date for abatement. Therefore, the

reference to Sec. 22-3-17(a) satisfies the deficiency noted at 30 CFR

948.15(m) and the requirement at 30 CFR 948.16(ddd) concerning initial

and mandatory civil penalty assessment procedures for imminent harm

cessation orders. 30 CFR 948.16(ddd) is hereby removed.

The State also proposes to revise this paragraph to provide that if

the cessation order has not been abated within the 30-day period, the

Director shall initiate action pursuant to Sec. 22-3-17(b), (g), (h)

and (j) of the WVSCMRA as appropriate. The term ``modified'' was

deleted from previous language of this provision that read, ``* * *

abated or modified within the thirty (30) day period * * *.'' The

Director finds this revision satisfies the requirement at 30 CFR

948.16(eee). The deletion of the word ``modified'' is consistent with

the Federal regulations at 30 CFR 845.15(b)

[[Page 6528]]

concerning assessment of violations. The Director also finds that the

requirement coded at 30 CFR 948.16(fff) concerning the starting and

ending dates for civil penalty assessments is satisfied by the

reference to Sec. 22-3-17(a) of the WVSCMRA at CSR 38-2-20.5(b). 30 CFR

948.16 (eee) and (fff) are hereby removed.

48. CSR Sec. 38-2-20.6 Procedures for Assessing Civil Penalties

The State proposes to revise paragraph (d) of this subsection to

remove the restrictions on public participation at assessment

conferences. The proposed rule provides that any person may submit in

writing at the time of the assessment conference a request to present

evidence concerning the violation(s) being conferenced. Such request

must be granted by the assessment officer. The Director finds these

changes satisfy the deficiency codified at 30 CFR 948.15(m)(2) and the

requirement at 948.16(ggg). 30 CFR 948.16(ggg) is hereby removed.

Subparagraph (h) has been amended to change the citation of

Sec. 22-3-17(d)(3) or (4), to Sec. 22-3-17(d)(1) of WVSCMRA. This

change was made to be consistent with the changes made to Sec. 22-3-17;

see Finding A 11, above. The Director finds the citation changes do not

render the State program inconsistent with 30 CFR Part 845 and are

approved.

49. CSR Sec. 38-2-20.7 Assessment Rates

Paragraphs (a), (b) and (c) are revised to clarify that the

monetary denomination used in the assessment of civil penalties is

dollars. The Director finds the revisions satisfy the requirement at 30

CFR 948.16(hhh). 30 CFR 948.16(hhh) is hereby removed.

Paragraph (d) is revised to ensure that an operator is awarded good

faith only where abatement is achieved before the time set for

abatement. The Director finds these revisions satisfy the deficiency

codified at 30 CFR 948.15(m)(2) and the requirements of 948.16(iii). 30

CFR 948.16(iii) is hereby removed.

50. CSR Sec. 38-2-22 Coal Refuse

a. Subsection 22.2 to require that coal refuse disposal facilities

be designed to attain a minimum long-term static safety factor of 1.5

and a seismic factor of safety of 1.2. The Director finds the change

satisfies the requirements codified at 30 CFR 948.16(aaa). 30 CFR

948.16(aaa) is hereby removed.

b. Subsection 22.3(p) has been revised deleting the provision that

allows coal refuse piles to be constructed with slopes exceeding two

(2) horizontal to one (1) vertical. The Director finds this revision

satisfies the deficiency codified at 30 CFR 948.15(l)(2) and the

requirements of 948.16(bbb). 30 CFR 948.16(bbb) is hereby removed.

c. Subsection 22.4(f) has been amended to provide that Class A coal

refuse impoundments be designed for a minimum P100+0.12 (PMP-

P100) inches of rainfall in 6 hours and Class B coal refuse

impoundments be designed for a minimum P100+0.40 (PMP-P100)

inches of rainfall in 6 hours. The Director finds the proposed

amendments to be consistent with and no less effective than 30 CFR

816.84(b)(2).

d. Subsection 22.4(g) has been amended to add the requirement that

all impoundments meeting size or other criteria of 30 CFR 77.216(a)

must be designed and constructed to safely pass the probable maximum

precipitation (PMP) of a 24 hour storm event. The Director finds the

proposed amendment to be no less effective than 30 CFR 816.84(b)(2)

concerning the design event for coal refuse disposal impoundments

meeting or exceeding the criteria of 30 CFR 77.216(a) with one

exception. Rainfall data for design storms is usually obtained from the

U.S. Weather Service. The U.S. Weather Service's document ``Rainfall

Frequency Atlas,'' however, does not have data charts concerning PMP

for a 24-hour storm event. Without such data the standard cannot be

implemented. Therefore, the Director is requiring that West Virginia

demonstrate how the State would implement the PMP 24-hour standard, or

revise subsection 22.4(g) to require compliance with a PMP 6-hour

standard. Data for the PMP 6-hour storm event is available from the

U.S. Weather Service.

e. Subsections 22.4 (g) and (h) have been revised to allow the use

of single open channel or open channel spillways if they are of non-

erodible materials 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. The Director

finds these revisions satisfy the requirements at 30 CFR 948.16(mm). 30

CFR 948.16(mm) is hereby removed.

f. Subsection 22.5(a)(2) has been amended to provide that all coal

refuse sites be constructed and maintained so as to attain a minimum

long-term static safety factor of 1.5, and that structures that have

the capacity to impound water also attain a seismic safety factor of

1.2. The Director finds the proposed standards are consistent with the

requirements contained in 30 CFR 948.16(aaa) and can be approved.

g. Subsection 22.7(a) has been amended to require that inspections

of impounding refuse piles be made regularly, but not less than

quarterly during construction. In addition, inspections will be made

during placement and compaction of coal refuse material and during

critical construction periods. Subsection 22.7(c) is amended to provide

that impoundments not meeting MSHA size or other criteria be examined

at least quarterly. Subsection 22.7(d) is amended to provide that a

copy of each inspection or examination report be retained at or near

the mine site. The Director finds the proposed amendments to be

consistent with and no less effective than 30 CFR 816.83(d) concerning

inspections of refuse piles, 30 CFR 816.49(a)(12) concerning

impoundment examinations, and 816.49(a)(11)(iii) concerning inspection

reports.

51. CSR 38-2C-4 Training of Blasters

Section 4 has been amended to add a provision that would allow

applicants for certification or recertification to complete a self-

study course in lieu of the existing training program. Self-study

materials would be provided the State. While there is no direct Federal

counterpart, the Director finds the proposed language is consistent

with 30 CFR 850.13 concerning the training of blasters.

52. CSR 38-2C-5 Examination for Certification of Examiner/Inspector

and Certified Blaster

Subsections 5.1 and 5.2 are amended to add that the examination for

certified blaster will also test on information contained in the self-

study course established by Sec. 38-2C-4 as an option to completing the

refresher training course. While there is no Federal counterpart, the

Director finds the proposed language is not inconsistent with 30 CFR

850.13 concerning training of blasters.

53. CSR 38-2C-8.2 Refresher Training Course/Self-study Course

This subsection is amended to allow the completion of the self-

study course established by Sec. 38-2C-4 as an option to completing the

refresher training course. While there is no Federal counterpart, the

Director finds the proposed language is not inconsistent with 30 CFR

850.13 concerning training of blasters.

54. CSR 38-2C-10.1 Violations by a Certified Blaster

WVDEP proposes to remove language authorizing the Director to issue

a cessation order and/or take other action as provided by the WVSCMRA

Sec. 22-3-16 and 17 when a certified blaster is in violation of WVSCMRA

Sec. 22-3-1. The

[[Page 6529]]

Director retains authority to issue a notice of violation. While the

Federal regulations do not specifically provide for the issuance of

either notice of violations or cessation orders against certified

blasters, the Director finds the proposed changes are not inconsistent

with 30 CFR 850.15(b) concerning suspension and revocation of blaster

certification.

55. CSR 38-2C-11.1 Penalties

This subsection is amended to authorize the issuance of an order to

suspend a blaster's certification based on clear and convincing

evidence of a violation, and to provide for a hearing to show cause why

a blasters certification should not be suspended. Deleted from this

subsection and from subsection 11.2, and Sec. 38-2C-12 are reference to

cessation orders. The Director finds the proposed changes to be

consistent with and no less effective than 30 CFR 850.15(b) concerning

suspension and revocation of blaster certification.

56. CSR 38-2D-4.4 Reclamation Objectives and Priorities

This subsection is amended to clarify its objectives and priorities

for abandoned mine lands reclamation projects by indicating the

provision applies to ``past'' coal mining practices which may or may

not constitute and extreme danger. The Director finds the proposed

change to be no less stringent than section 403(a)(2) of SMCRA

concerning eligible lands and water.

57. CSR 38-2D-6.3(a) Acceptance of Gifts of Land

This section is revised to remove the requirement that the Director

accept gifts of land in accordance with Department of Justice

procedures for the acquisition of real property. The Director finds the

deletion does not render the West Virginia program less effective than

30 CFR 879.13 concerning acceptance of gifts of land.

58. CSR 38-2D-8.7 Grant Application Procedures

This section is amended to remove provisions which describe

procedures for completing and submitting a grant application to OSM for

the reclamation of abandoned mine lands. The Director finds the

proposed deletions do not render the West Virginia program less

effective than the grant application procedures at 30 CFR 886.15 which

contain no counterparts to the deleted language.

IV. Summary and Disposition of Comments

Public Comments

The Director solicited public comments and provided an opportunity

for public hearings on the proposed amendment on three separate

occasions. Public hearings were held on September 7, 1993, October 27,

1994, and May 30, 1995, (Administrative Record Nos. WV-906, WV-958, and

WV-983). OSM has published final rule notices on the provisions

concerning bonding and the provisions concerning durable rock fills.

Therefore, comments relating to those provisions will not be discussed

here.

Following is a summary of the substantive comments. Comments

voicing general support or opposition to the proposed amendment but

devoid of any specific issues are not discussed. The summarized

comments and responses are organized by subject. All comments and

responses have been adjusted to reflect the nomenclature of the May 16,

1995, version of the regulations.

Amendment Review Process

A commenter asserted that OSM has predetermined the proposed State

amendments in the Federal Register notice dated August 12, 1993 (58 FR

42903). Specifically, the commenter stated that OSM referred to a

``satisfaction in part of a federal referenced regulation'' (see

proposed regulation changes #19, 20, 33, 35, 37, 50, and 53 in the

August 12, 1993 notice). Such statements by OSM, the commenter

asserted, indicate that a decision has already been made and that the

changes will not be objectively considered by OSM. In response, the

Director believes that the commenter has misunderstood OSM's intention.

Under 30 CFR 732.17(h)(2)(i), OSM is required to inform the public of

proposed changes to State regulatory programs, and to publish the text

or a summary of the proposed State program amendments. As part of that

notification, OSM also identifies those proposed amendments that are

related to program deficiencies that are codified in the Federal

regulations at 30 CFR 948.16 concerning required program amendments.

This is done to draw the public's attention to the fact that the State

is addressing program deficiencies. Sometimes, proposed amendments

appear to address only part of the requirements codified at 30 CFR

948.16. In those cases, OSM often states that the proposed amendment is

intended to satisfy a portion of the requirements of a specific

paragraph codified at 30 CFR 948.16. In no way does such a statement by

OSM mean, or imply, that OSM has predetermined whether or not the

proposed amendment is approvable by OSM.

No Federal Counterpart Provisions

Some commenters made the assertion that in situations where there

are no Federal counterparts to the proposed State provisions that the

proposed provisions should not be of concern to OSM. In response, the

Director notes that, under 30 CFR 732.17, the State must submit and OSM

must review changes to approved State programs. In those cases where

there are no direct Federal counterparts to the proposed State

provisions, OSM will make a determination, under 30 CFR 732.15 (a) and

(c), of whether or not the State provisions are in accordance with

SMCRA and consistent with the Federal regulations, and that the

proposed State provisions would not interfere with or preclude

implementation of SMCRA or the Federal regulations.

Statutes

Sec. 22-3-13(b)(10) Performance standards: The commenter stated

that the charge to avoid acid or toxic mine drainage implies that you

have to avoid it at all costs, and that you can't have any alternative.

In response, the Director notes the provision is substantively

identical to section 515(b)(10)(A) of SMCRA (see Finding A9).

Sec. 22-3-19 Permit renewal and revision: A commenter stated that

the proposed renewal fee is required only when the operator is going to

continue active mining. Also, that a fee is not required for any

reclamation work, including regrading and certainly not needed for the

grass to grow. In response, the Director notes that under the proposed

rules at CSR 38-2-3.27(a), the WVDEP may waive, under specified

conditions, the requirements for permit renewal if coal removal is

completed. Therefore, the $2000 filing fee may not affect permittees

with only reclamation to be done.

Sec. 22-3-19(a)(2) Permit renewal and revision: The commenter

stated that the amended statute remains more than a bit fuzzy as to

whether or not the additional land area will be subject to the

procedural requirements of a new permit, i.e., public notice, review

and comment. The Director disagrees. The proposed language and the

State's June 16, 1994 (WV-923) clarification letter, both clearly state

that new areas being added to a permit at renewal will be subject to

the full permitting requirements of the West Virginia program,

including public review, notice, and comment.

[[Page 6530]]

Sec. 22-3-28 Special reclamation permits: The commenter said that

this section should be removed from the State program even though the

State has expressed interest in leaving it in the State program in the

event that OSM will, in the future, approve such special permits. In

response, the Director is not acting on this provision, at this time,

because the State has not made any substantive changes to this section.

The State will be notified via the 30 CFR part 732 process that the

provisions are inconsistent with SMCRA and should be removed.

Rules

Rulemaking Authority

A commenter stated that some of the proposed rules exceed the

authority granted to the Division under WV Code Sec. 22-3-11(a) to the

extent that they attempt to amend 38 CSR Secs. 14.8 (steep slope

mining) and 14.15 (backfilling and regrading). The commenter stated

that the legislation that authorized the Division to promulgate the

site-specific bonding regulations provided for a special exception from

the normal rulemaking procedure (allowing the Division to proceed to

final adoption without submission to the Legislature) specifically for

the purpose of implementing a new bonding system, and not for any other

amendments. In response, the Director notes that the West Virginia

statutes at Sec. 22-3-2 and Sec. 22-3-13(d) authorize the director of

the division of environmental protection to promulgate, administer and

enforce rules pursuant to the West Virginia Surface Coal Mining and

Reclamation Act. The rules the commenter referred to (CSR 38-2-14.8 and

14.15) were promulgated as legislative rules, and were approved by the

State legislature. See Findings B32 and B36 above for the Director's

findings on those amended rules.

General

CSR 38-2-1.2 Applicability: The commenter stated that this

provision should not have retroactive application. See Section V,

Director's Decision, below, for a complete explanation of the

Director's retroactive approval.

Definitions

CSR 38-2-2.20 Chemical treatment: Commenters are concerned that

this definition, which separates passive treatment from the definition,

will lead to problems related to bond release. The specific concern is

that if bond release is authorized in cases where passive treatment

system (e.g., limestone drains) are maintaining water quality

standards, then the risk is high that water quality will degrade after

bond release as the passive treatment systems lose effectiveness.

Another commenter said that there is no Federal counterpart and it

should be approved. This commenter said that the definition of

``chemical treatment'' applies to all facets of the regulations, not

just to bond release. The Director has approved the definition of

``chemical treatment'' except to the extent that the definition would

allow bond release where passive treatment systems are used to achieve

compliance with applicable effluent standards (see Finding B-2a above).

Although OSM encourages the use of passive treatment systems as an

integral part of surface mining and reclamation operations, the

effectiveness and reliability of such passive systems to control

pollutional discharges on a long-term basis has not been proven to the

extent that they can be considered an effective basis for bond release.

Permits

CSR 38-2-3.7 Excess spoil: The commenters object to the removal of

the authority to approve alternative design requirements for excess

spoil fills. The commenter stated that identical regulations have been

approved in the Virginia program at 480-03-19-816.73. In response, the

Director notes that the Virginia provision was approved because it

specifies criteria that such alternative designs must meet. Such

criteria are not present in the West Virginia rule, and the Director

did not approve the rule.

CSR 38-2-3.12 Subsidence control plan: One commenter expressed

concern as to whether or not State law is still a consideration on the

obligation to support the surface (from subsidence) under CSR 38-2-

16.2. Another commenter stated that nothing in State SMCRA has changed

to provide authority for removing the State law limitation found in the

State regulation. In response, the Director notes that the deletion of

the reference to state law is intended to clarify that the requirements

of CSR 38-2-16.2 are not to be diminished by other State law. The

amended State language is a response to the amendments made to Federal

SMCRA by the Energy Policy Act of 1992. The Energy Policy Act added new

section 720 to SMCRA to provide for the repair or compensation for

material damage caused by subsidence, and the replacement of drinking,

domestic, or residential water supplies damaged by underground coal

mining operations. The Federal regulations implementing section 720 of

SMCRA were published in the Federal Register on March 31, 1995 (60 FR

16722-16751). Neither section 720 of SMCRA nor the implementing

regulations defer to State law concerning the requirements to repair or

compensate for subsidence-caused material damage to dwellings and

related structures or the replacement of water supplies damaged by

underground coal mining operations.

CSR 38-2-3.14 Removal of abandoned coal waste piles: The commenter

apparently disagrees with the proposed provision concerning the need

for a permit if the coal waste material can be classified as coal using

the BTU standard in ASTM D 388-88. In response, the Director notes that

if a mined deposit is coal, a permit is required. Section 506 of SMCRA

requires a permit if coal mining operations are to be conducted. The

Federal regulations at 701.5 define surface mining activities to

include the recovery of coal from deposits not in their original

geologic location, which would include the reprocessing of abandoned

waste piles.

CSR 38-2-3.27 Permit renewals: The commenter disagrees with the

proposed language that allows the State to waive the requirements for

permit renewal only where all coal extraction is completed and all

backfilling and regrading will be completed within 60 days prior to the

expiration date of the permit. The commenter states that Federal law

only requires a permit in order to ``mine'' and does not require that

reclamation be permitted. In response, the Director notes that the

proposed State provision is consistent with and is a reasonable

interpretation of the Federal requirements at 30 CFR 773.11(a)

concerning the requirements to obtain permits. See Finding B.14 above

for the Director's approval of this provision.

CSR 38-2-3.28 Permit revisions: The commenter disagrees with the

amendments that would allow the State to determine if an updated

probable hydrologic consequences (PHC) determination is necessary, or

if other permit revisions are necessary. In response, the Director

notes that the State requirements concerning the PHC are consistent

with the Federal requirements at 30 CFR 780.21(f)(4). The State

provision concerning reasonable revisions is consistent with the

Federal requirements at 30 CFR 774.11(b) concerning review of permits.

CSR 38-2-3.28 Permit revisions: The commenter stated that new

provisions cannot be applied retroactively. See Section V, Director's

Decision, below, for a complete explanation of the Director's

retroactive approval.

[[Page 6531]]

CSR 38-2-3.29 Incidental boundary revisions (IBR's): The commenter

stated that it should be mandatory for the State to require an

advertisement and a ten day public comment period for any IBR greater

than 50 acres in size that might be granted pursuant to the waiver

provision at the end of CSR 38-2-3.29(b)(2). The Director does not

agree. A requirement to advertise in all such cases would eliminate the

possibility of the regulatory authority exercising reasonable

discretion in the conduct of its responsibilities. Also, neither SMCRA

nor the Federal regulations require notice or comment on proposed

IBR's. The approved State program does, however, provide for appeals of

decisions by the regulatory authority under CSR 38-2-18.

CSR 38-2-3.34(b) and (g) Improvidently issued permits: The

commenter disagrees with these amendments and stated that the

provisions appear to be for the purpose of covering agency mistakes,

with no regard for the coal operator. The Director disagrees. As noted

in Finding B21, above, the proposed changes are consistent with the

language and intent of the Federal regulations at 30 CFR 773.20

concerning improvidently issued permits and 773.15 concerning review of

permit applications.

Roads

CSR 38-2-4 Haulageways or Access Roads: The commenter said there

is no Federal requirement in this area. The Director disagrees. The

counterpart Federal provisions are at 30 CFR 816.150 concerning roads;

general, and 816.151 concerning primary roads.

CSR 38-2-4.4 Infrequently used access roads: The commenter

disagrees with the need for the proposed language. The commenter stated

that the key to the requirements for infrequently used access roads is

use and frequency of use. Unless the road is used frequently, the

operator should not be required to spend large sums of money on

extensive plans, pipes, drains and other costly items. In response, the

Director notes that a road's impact on the environment is only partly

derived from the use of the road. The degree of alteration of the

natural land configuration of the road itself can be the greater source

of environmental harm. The proposed rules are designed to minimize

those impacts.

Drainage and Sediment Control

CSR 38-2-5.5 Permanent impoundments: The commenter stated that

permanent impoundments should be encouraged, not restricted. In

response, the Director notes that the provisions concerning the

retention of permanent impoundments both authorize the retention of

such impoundments and ensure sound future maintenance.

Blasting

CSR 38-2-6.3(a) Public notice of blasting operations: The commenter

stated that all natural gas pipelines should be included within the

definition of ``public utilities'' at subsection 6.3(a) and be notified

of the blasting schedule. Without such notice, the commenter stated,

the opportunity for significant input on the specifics of the blasting

plan may be lost without written notice at the permit stage. As

discussed in Finding B26b, above, the proposed State language is

substantively identical to and, therefore, no less effective than the

Federal regulations at 30 CFR 817.64(a). The Director agrees that such

notice would be valuable, however, and encourages the commenter to

discuss this matter with the regulatory authority.

Insurance and Bonding

CSR 38-2-11.1 Insurance: The commenter stated that the amendment

is unclear and that it seems as though blasting liability continues

after blasting is continued. The Director disagrees. The State language

clearly states that insurance coverage for blasting damage may be

terminated prior to final bond release, but not before blasting

activities have ceased. The provision also requires that even though

blasting coverage may be terminated, the full amount of the liability

coverage (from subsection 11.1(a)) shall continue throughout the life

of the permit (or renewal).

Notice of Intent To Prospect

CSR 38-2-13.6(a)(7), (f)(6) Prospecting roads: The commenter

recommended that the proposed language not be approved. There is no

Federal counterpart for prospecting roads, the commenter asserted, and

the proposed requirements would be expensive and not cost effective for

such roads which are often infrequently used. In response, the Director

notes that requirements for prospecting roads are intended to be

counterparts to the Federal requirements for roads at 30 CFR 816.150,

and as noted in Finding B30, above, the amendments are approved. 30 CFR

815.15(b) concerning coal exploration standards requires the

application of 816.150(b) through (f) for coal exploration which causes

substantial disturbance.

Performance Standards

CSR 38-2-14.5(h) Waiver of water supply replacement: The commenter

stated that no waivers of water supply should be allowed because they

would be inconsistent with the Energy Policy Act of 1992. In response,

and as discussed above in Finding B31, above, the Director has

determined that the proposed language is not inconsistent with SMCRA

and the Federal regulations except to the extent that the proposed

waiver would not be implemented in accordance with the definition of

``Replacement of water supply'' at 30 CFR 701.5. In addition, the

Director is requiring that the West Virginia program be further amended

to clarify that under 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,'' paragraph (b), at 30 CFR 701.5.

CSR 38-2-14.8 Steep slope mining: A commenter stated that the

downslope prohibition (in 14.8(a)(1)) seems to be a new condition and

does not take into consideration the unusual geologic conditions of the

southern West Virginia coal fields. In response, the Director notes

that, as discussed above in Finding B32, the amendment is intended to

prevent the placement of spoil on natural intervening slopes in steep

slope operations. The amendment renders the State provision

substantively identical to 30 CFR 816.107(b)(1), which prohibits spoil

placement on the downslope.

A commenter suggested that, to improve clarity of the new language

at CSR 38-2-14.8(a)(1), the phrase ``multiple seam operations'' be

amended to read ``multiple seam contour operations.'' The Director

notes that, while the change would improve clarity, contour mining is

logically implied by the amendments and the State need not be required

to revise the language.

A commenter also stated disagreement with the prohibition at CSR

38-2-14.8(a)(4) concerning placement of woody material in the backfill.

The commenter asserted that when done right, such placement does not

cause stabilization problems. In response, the Director notes that the

proposed language is substantively identical to the Federal regulations

at 30 CFR 816.107(d). The State language does allow the placement of

woody materials in the fill if the regulatory authority first

determines that the method of placement of woody material will not

deteriorate the future stability of the backfilled area.

CSR 38-2-14.15 Contemporaneous reclamation standards: The

commenter

[[Page 6532]]

made numerous comments and provided recommended language concerning

these provisions. While the comments and recommendations may have

merit, the commenter is not asserting that any of the proposals are

inconsistent with SMCRA or the Federal regulations. Since the Director

need only decide whether amendments are in accordance with SMCRA and

the Federal regulations, he will not require the State to add language

to its program if it is not needed to bring the program into compliance

with Federal law and regulations. As noted in Finding B36, above, the

Director has determined that the State's proposed language is

consistent with the Federal regulations at 30 CFR 816.100 concerning

contemporaneous reclamation standards and can be approved (see Finding

B36, above).

CSR 38-2-14.19(d) Disposal of noncoal mine wastes: The commenter

recommended that OSM disapprove the proposal to allow the wind-rowing

of timber below the toe of the outslope. The commenter stated that OSM

has disapproved this practice in the past and should do so once again.

As explained above in Finding B39, the Director is approving the

proposed amendments except to the extent that the amendments would

allow wind-rowing on the downslope in steep slope areas. Such wind-

rowing in steep slope areas would be less effective than 30 CFR

816.107(b)(3).

Subsidence Control

CSR 38-2-16.2(c)(2) Subsidence control; surface owner protection:

The conmenter stated that deletion of the phrase ``To the extent

required under applicable provisions of State law'' should not have

been proposed because court decisions negate the validity of the

disapproval of that phrase and the disapproval at 30 CFR 948.15(k)(11).

In response, the Director notes that the Energy Policy Act of 1992

amended SMCRA at new section 720 to require the repair or compensation

for subsidence-caused material damage to certain structures. The new

SMCRA provision does not provide for a deference to State law.

Inspection and Enforcement

CSR 38-2-20.6 Procedure for assessing civil penalty: Two

commenters stated that this section should be modified to ensure that

it is clear that citizens with information and interests which support

a coal operation or operator should be equally free to participate in

assessment conferences as are citizens who are opposed. The Director

disagrees that the State language is unclear. The State provision

clearly states that ``[a]ny person, other than the operator and

Division of Environmental Protection representives, may submit in

writing at the time of the conference a request to present evidence

concerning the violation(s) being conferenced.'' Clearly, the provision

does not state that the evidence must be either in support of or

against the violation(s) being conferenced. The commenters also

questioned why ``any'' person could participate in the conference, and

stated that the Division of Environmental Protection should have the

discretion of allowing those they feel are genuinely affected by the

proceeding to attend, not just anybody or everybody who might petition.

In response, the Director notes that subsection CSR 38-2-20.6(e)

provides that the conference assessment officer shall consider all

relevant information on the violation(s). Therefore, the assessment

officer has some discretion to determine what information is relevant

to the violation(s) being conferenced.

CSR 38-2-22 Coal Refuse: The commenter stated that this section

should be amended to clarify that the coal refuse regulations do not

apply to coal refuse placed in the backfill, but only to isolated and

distinct structures designed solely or primarily for coal refuse

disposal. The Director partially agrees. 30 CFR 816.81 concerning coal

mine waste general requirements, provides that all coal mine waste

disposed of in an area other than the mine workings or excavations

shall be placed in new or existing disposal areas within the permit

area. The regulations at 30 CFR 816.83 provide the standards for coal

mine waste refuse piles, with particular emphasis on stability and

drainage control. Coal mine waste that is placed in the backfill,

however, presents potential acidity and toxicity problems that must be

addressed just as those problems must be addressed if the coal waste is

placed in a separate structure. The State has addressed those potential

problems in its rules concerning coal refuse in the backfill at CSR 38-

2-14.15(m) (see Finding B36, above). In designing those regulations,

the State used applicable standards from 30 CFR 816.81 concerning coal

mine waste. In approving the proposed State provisions, OSM compared

them to applicable parts of 30 CFR 816.81 as the primary standards for

preventing the formation of acidity and toxicity.

CSR 38-2-22.4(f) Design storm specifications: The commenter

supports the proposed changes and stated that those changes bring the

State standards in line with Federal standards. In response, the

Director notes that as explained in Finding B50c, above, the proposed

amendments are approved except to the extent that the new standards

apply to impoundments that meet the size or other criteria of 30 CFR

77.216(a). 30 CFR 816.84(b)(2) provides that impoundments that meet the

size or other criteria of 77.216(a) must be designed for a probable

maximum precipitation (PMP) of a six-hour or greater precipitation

event.

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 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.

The Mine Safety and Health Administration (MSHA) commented that CSR

38-2-14.15(m) concerning coal processing waste disposal, and CSR 38-2-

14.19(d) concerning disposal of non-coal waste may be less restrictive

than MSHA's requirements. For example, MSHA stated that MSHA's minimum

design criteria for refuse piles (30 CFR 77.214 and 77.215) have

provisions requiring the placement of clay over any exposed coal beds

before constructing a refuse pile, and also prohibit the placement of

any extraneous combustible materials in a refuse pile. In response, the

Director notes that the State rules at CSR 38-2-14.15(m) provide that

where approval for placing coal processing waste in the backfill has

been granted, such placement shall be done in accordance with the

compaction requirements of CSR 38-2-22.3(p). CSR 38-2-22.3(p) requires

MSHA approval of any alternate construction plans for refuse piles in

compacted layers exceeding two feet in thickness. In addition, the

proposed language provides that the coal processing waste will not

contain acid-producing or toxic-forming material. Also, CSR 38-2-

14.19(c) provide that noncoal mine waste shall not be deposited in a

refuse pile or impounding structure, nor shall an excavation for a

noncoal mine waste disposal site be located within eight feet of any

coal outcrop or coal storage area. In addition, under both of these

rules,

[[Page 6533]]

the coal processing waste would be placed in the backfill, a location

from which the coal has already been removed. Finally, nothing in CSR

38-2-14.15(m) or 14.19 excuses the operator from compliance with

applicable MSHA requirements. The Director recognizes the applicability

of 30 CFR 77.214 and 77.215 to refuse piles.

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), and June 29, 1995 (Administrative Record No. WV-999) OSM

solicited EPA's concurrence on the proposed amendments. On October 17,

1994 (Administrative Record No. WV-949), EPA gave its written

concurrence with a condition on subsection 5.4(b)(2) of West Virginia's

regulations. Subsection CSR 38-2-5.4(b)(2) is not being amended, and is

not, therefore, a subject of this rulemaking. EPA also submitted

comments concerning various State provisions that are not being

amended. Since the provisions are not being amended, EPA's comments

will not be addressed here.

EPA also responded by letter dated January 31, 1996, with its

concurrence with the proposed amendments (Administrative Record No. WV-

1019). In that letter, EPA provided comments in support of CSR 38-2-

14.15(m) concerning the prohibition of acidic coal processing waste

being placed in backfills, and Sec. 22B-3-4(c) concerning variances to

water quality standards for coal remaining operations.

V. Director's Decision

Based on the above findings, and except as noted below, the

Director is approving with certain exceptions and additional

requirements the proposed amendments as submitted by West Virginia on

June 28, 1993, as modified on July 30, 1993; August 18, 1994; September

1, 1994; and May 16, 1995. As discussed in the findings, there are some

exceptions to this approval, and those are noted below. The Director is

also requiring the State to make additional changes to certain

provisions to ensure that the program is no less stringent than SMCRA

and no less effective than the Federal regulations. Those requirements

are also noted below.

At Sec. 22-3-13(e)--The authorization to promulgate rules that

permit variances from approximate original contour is approved to the

extent that it only applies to steep slope areas as defined at WVSCMRA

Sec. 22-3-13(d). The Director is requiring that West Virginia amend its

program to limit such variances to industrial, commercial, residential,

or public alternative postmining land use, in accordance with section

515(e)(2) of SMCRA.

At Sec. 22B-1-7(d)--The authorization to allow temporary relief

where the appellant demonstrates that the executed decision appealed

from will result in the appellant suffering an ``unjust hardship'' is

not approved. The Director is requiring that West Virginia further

amend Sec. 22B-1-7(d) to be consistent with SMCRA sections 514(d) and

525(c).

At Sec. 22B-1-7(h)--The authorization that would allow the Surface

Mining Board to consider economic feasibility of treating or

controlling discharges from surface coal mining operations in appeals

from decisions of an order, permit, or official action is not approved.

The Director is requiring that West Virginia further amend Sec. 22B-1-

7(h) to be no less stringent than SMCRA section 515(b)(10) and no less

effective than the Federal regulations at 30 CFR 816.42, by requiring

discharges to be controlled or treated without regard to economic

feasibility.

At CSR 38-2-1.2(c)(1)--The termination of jurisdiction over an

initial program site except to the extent that subsection (c)(1) does

not require compliance with the Federal initial program regulations at

Subchapter B or to the West Virginia permanent program as a

prerequisite to the termination of jurisdiction. The Director is

requiring that the State further amend subsection (c)(1) to require

compliance with the Federal initial program regulations at Subchapter B

or the West Virginia permanent regulatory program rules as a

prerequisite to the termination of jurisdiction over an initial program

site.

At CSR 38-2-2.92--The definition of ``chemical treatment'' except

to the extent that the definition of ``chemical treatment'' would allow

bond release where passive treatment systems are used to achieve

compliance with applicable effluent limitations. The Director is

requiring that West Virginia further amend the West Virginia program to

clarify that bond may not be released where passive treatment systems

are used to achieve compliance with applicable effluent limitations.

At CSR 38-2-3.1(o)--The grouping of ownership and control

information is approved to the extend that all permit applicants which

maintain centralized ownership and control files are also required to

comply with all of the informational provisions contained in CSR 38-2-

3.1.

At CSR 38-2-4.2(b)--Is approved to the extent that the provisions

pertain to all roads, whether they are within or crossing a stream.

At CSR 38-2-4.4--Is approved except to the extent that it exempts

infrequently u

This text is long and has been trimmed here. Open the source document for the complete record.