West Virginia Regulatory Program

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 948

[WV-077-FOR]

West Virginia Regulatory Program

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

Interior.

ACTION: Final rule; approval of amendment.

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SUMMARY: 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 revises both

the West Virginia Surface Mining Reclamation Regulations and the West

Virginia Surface Coal Mining and Reclamation Act. The amendment mainly

consists of changes to implement the standards of the Federal Energy

Policy Act of 1992. The amendment is intended to revise the State

program to be consistent with the counterpart Federal provisions.

EFFECTIVE DATE: February 9, 1999.

FOR FURTHER INFORMATION CONTACT: Mr. Roger W. Calhoun, Director,

Charleston Field Office, Telephone: (304) 347-7158.

SUPPLEMENTARY INFORMATION:

I. Background on the West Virginia Program

II. Submission of the Amendment

III. Director's Findings

IV. Summary and Disposition of Comments

V. Director's Decision

VI. Procedural Determinations

I. Background on the West Virginia Program

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

approved the West Virginia program. Background information on the West

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

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

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

actions concerning the West Virginia program and previous amendments

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

II. Submission of the Amendment

By letter dated April 28, 1997 (Administrative Record Number WV-

1056), the West Virginia Division of Environmental Protection (WVDEP)

submitted an amendment to its approved permanent regulatory program

pursuant to 30 CFR 732.17. By letter dated May 14, 1997 (Administrative

Record Number WV-1057), WVDEP submitted some revisions to the original

submittal. The amendment contains revisions to Sec. 38-2-1 et seq. of

the West Virginia Surface Mining Reclamation Regulations [Code of State

Regulations (CSR)] and to Sec. 22-3-1 et seq. of the West Virginia

Surface Coal Mining and Reclamation Act (WVSCMRA). The amendment mainly

consists of changes to implement the standards of the Federal Energy

Policy Act of 1992, and is intended to revise the State program to be

consistent with the counterpart Federal provisions.

On October 10, 1997, OSM provided the State a list of concerns

regarding the proposed amendment (Administrative Record Number WV-

1073). By letter dated April 27, 1998 (Administrative Record Number WV-

1085), the State submitted its final response to OSM's comments on the

amendments.

An announcement concerning the initial amendment was published in

the June 10, 1997, Federal Register (62 FR 31543-31546). A correction

notice was published on June 23, 1997 (62 FR 33785), which clarified

that the public comment period closed on July 10, 1997. No one

requested an opportunity to speak at a public hearing, so none was

held.

III. Director's Findings

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

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

proposed amendment to the West Virginia program. Minor wording changes

and other non-substantive changes are not identified.

A. Surface Coal Mining and Reclamation Act--Sec. 22-3-1 et seq.

Definitions

1. Sec. 22-3-3(u) Definition of ``surface mine.'' This definition

is amended at subsection 3(u)(2) by adding three examples of activities

that are not encompassed by the definition of ``surface mine'' under

the WVSCMRA. The three exceptions are: (1) Coal extraction pursuant to

a government financed reclamation contract; (2) coal extraction

authorized as an incidental part of development of land for commercial,

residential, industrial, or civic use; and (3) the reclamation of an

abandoned or forfeited mine by a no cost reclamation contract.

Sec. 22-3-3(u)(2)(1): Coal extraction authorized pursuant to a

government financed reclamation contract. Section 528(2) of SMCRA

provides an exemption from the requirements of SMCRA for coal

extraction incidental to government-financed highway or other

construction under regulations established by the regulatory authority.

The WVDEP has explained that the proposed amendments are intended to

clarify that the reclamation of abandoned sites is government-financed

construction that is consistent with the provisions of section 528(2)

of SMCRA and, therefore, not subject to SMCRA.

OSM is in the process of amending the Federal regulations at 30 CFR

707 and 874 concerning the financing of Abandoned Mine Land reclamation

(AML) projects that involve the incidental extraction of coal (63 FR

34768; June 25, 1998). The first Federal revision would amend the

definition of ``government-financed construction'' at 30 CFR 707.5 to

allow less than 50 percent government funding when the construction is

an approved AML project under SMCRA. The second revision would add a

new section at 30 CFR 874.17 which would require specific consultations

and concurrences with the Title V regulatory authority for AML

construction projects receiving less than 50 percent government

financing. The revised final Federal regulations will be published

soon, and will likely affect our decision on the West Virginia

amendments that concern government financed construction on abandoned

mine lands. Therefore, OSM is deferring its decision on these

amendments until after the publication in the Federal Register of the

final amendments to 30 CFR Parts 707 and 874.

Sec. 22-3-3(u)(2)(2): Coal extraction incidental to development of

land for commercial, residential, industrial, or civic use. As stated

above, Section 528(2) of SMCRA, and Sec. 22-3-26(b) of the WVSCMRA

provide an exemption from the requirements of SMCRA for coal extraction

incidental to government-financed highway or other construction under

regulations established by the regulatory authority. However, no

provision currently exists which provides an exemption from the

requirements of SMCRA for coal extraction incidental to privately

financed development of land for commercial, residential, industrial,

or civic use.

Section 701(28) of SMCRA, the definition of ``surface coal mining

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operations'', does not provide for such an exemption. As discussed in

the March 13, 1979, preamble to the Federal regulations, a commenter

recommended that the definition of surface coal mining operations

exclude private excavation which results in the incidental recovery of

coal (44 FR 14901, 14914). OSM concluded that such an exemption was

inconsistent with Section 528 of SMCRA.

The WVDEP asserts, however, that Section 701(28) does not define

``surface coal mining operations'' to include any and all excavation

which disturbs coal. For example, the WVDEP asserts that unless done in

connection with a coal mine, coal removal relative to the development

of land for commercial, residential, industrial or civic use is beyond

the jurisdiction of SMCRA. Further, the WVDEP refers to section 101(f)

of SMCRA which provides that because of the diversity in terrain,

climate, biologic, chemical, and other physical conditions in areas

subject to mining operations, the primary governmental responsibility

for developing, authorizing, issuing, and enforcing regulations for

surface mining and reclamation operations subject to SMCRA would rest

with the States. Specifically, the WVDEP stated that because of the

State's unique geographic and geologic conditions, any excavation

activity in certain parts of the State will necessitate the excavation

of coal. Sometimes such excavation would justify the requirement of a

surface mining permit and in other instances it would not. The WVDEP

stated that the proposed changes are intended to clarify when a permit

is necessary and to provide for reasonable environmental controls when

a permit is not required (but a special authorization under proposed

section 22-3-28 would be) so as to prevent adverse impacts to the

environment from excavation related disturbances. Finally, the WVDEP

asserts that the proposed approach would prevent a waste of resources

and provide environmental protection while accommodating development

within the State.

The Director recognizes that requiring all privately financed

construction activities in West Virginia which also remove coal to be

permitted and regulated as surface coal mining operations may, in some

instances, present both a hardship for the regulatory program and be a

roadblock to development within the State. Nevertheless, OSM is bound

by the constraints of SMCRA, both in its plain language and in clear

expressions of Congressional intent. Congress expressly considered and

rejected a blanket exemption from the definition of ``surface mining

operations'' for privately financed construction. S. Rep. No. 95-337,

95th Cong., 1st Sess. 112 (1977). This West Virginia program amendment

proposes precisely the same blanket exemption which Congress explicitly

rejected. Therefore, the Director finds that the proposed provision is

less stringent than SMCRA at section 528 and cannot be approved.

Sec. 22-3-3(u)(2)(3): The reclamation of an abandoned or forfeited

mine by a no-cost reclamation contract. The State has proposed to

exempt from the definition of ``surface mining'' the reclamation of

abandoned or post-SMCRA forfeited mines conducted under a ``no cost''

reclamation contract.

Reclamation activities involving forfeited mines are subject to

regulation under SMCRA. Bond forfeiture reclamation must be conducted

in accordance with the reclamation plan of the revoked permit as

provided by 30 CFR 800.50(b). Such activities are also subject to

inspection under 30 CFR 842.11(e) and (f). However, reclamation

activities on abandoned and forfeited mine sites do not constitute

``surface coal mining operations,'' so long as they do not include coal

extraction. Therefore, the Director is approving W.Va. Code 22-3-

3(u)(2)(3), because it is not, on its face, inconsistent with the

Federal definition of ``surface coal mining operations'' at section

701(28). However, West Virginia has also proposed a regulation which

would allow the placement of excess spoil on abandoned sites, pursuant

to ``no cost'' reclamation contracts. The proposed regulation is

included in a program amendment which is the subject of another

rulemaking. (63 FR 32633, June 15, 1998) Therefore, the disposal of

excess spoil on abandoned and forfeited sites pursuant to ``no cost''

contracts is not yet approved.

2. Sec. 22-3-3(x) is added to define ``Unanticipated event or

condition.'' The Director finds the proposed definition to be

substantively identical to and therefore no less stringent than the

counterpart Federal provision at SMCRA section 701(33).

3. Sec. 22-3-3(y) is added to define ``Lands eligible for

remining.'' Under this new definition, lands eligible for remining

include lands that would be eligible for expenditure under Section 4 of

the State's Abandoned Mine Lands and Reclamation Act. In addition,

surface mining operations on lands eligible for remining would not

affect the eligibility of such lands for AML funding, and, in the event

of bond forfeiture, AML funds may be used to reclaim reaffected

eligible lands. However, if conditions constitute an emergency under

section 410 of SMCRA, then section 410 shall apply.

The Federal definition of ``lands eligible for remining'' at SMCRA

section 701(34) provides that the term means those lands that would

otherwise be eligible for expenditures under section 404 or under

section 402(g)(4). Section 404 provides that surface coal mining

operations on lands eligible for remining shall not affect the

eligibility of such lands for reclamation and restoration. In the event

of a bond or deposit forfeiture, section 404 allows the use of AML

funds to reclaim the site only if the amount of the bond or deposit is

not sufficient to provide for adequate reclamation or abatement.

In support of this amendment, WVDEP stated that any AML funds used

at a remining site would be spent in accordance with AML guidelines,

including eligibility requirements. Accordingly, the use of AML funds

at remining sites would be subject to the concurrence of OSM that there

is, among other things, no other responsible party at such sites and

that the bond available is not sufficient to provide for adequate

abatement or reclamation. Finally, the WVDEP stated that its

interpretation of this program amendment is if the site was eligible

for AML funds prior to remining it will be eligible for AML funds after

remining. That is, section 22-3-3(y) does not preclude AML eligibility

after a remining bond release.

The Director finds that the proposed amendment as explained above

by the WVDEP appears to be no less stringent than SMCRA section 701(34)

and can, therefore, be approved. However, that portion of section 22-3-

3(y) pertaining to bond forfeitures is approved only to the extent that

AML funds may be used to reclaim sites where a bond or deposit has been

forfeited only if the bond or deposit is insufficient to provide for

adequate reclamation or abatement.

4. Sec. 22-3-3(z) is added to define ``Replacement of water

supply.'' The Director finds the proposed definition to be

substantively identical to the introductory paragraph and to subsection

(a) of the counterpart Federal definition at 30 CFR 701.5, except as

noted below. The Federal provision provides that water supply

replacements must be equivalent to ``premining'' water quantity and

quality, and replacement must include payment of operation and

maintenance costs in excess of customary and reasonable delivery costs

of the ``premining'' water supply. The proposed State provision,

however, merely provides that water supply replacements must be of

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``equivalent quality and quantity.'' In support of this provision,

WVDEP stated that the word ``premining'' was not included in the

definition because that term can lead to confusion. The word

``equivalent'' rather than the words ``equivalent premining'' was used

so that a realistic baseline (i.e., the quality and quantity of water

in use prior to the permitted mining activity as determined by the

premining survey) would provide certainty as to water replacement

obligations. In addition, WVDEP explained that the State's definition

and practice is that when a water supply is contaminated, interrupted,

or disrupted the water supply must be replaced with a water supply that

is equivalent in quantity, quality, and cost to that which existed

prior to mining. The Director finds that the proposed definition, if

implemented as explained by the WVDEP, would not be inconsistent with

and is no less effective than the counterpart Federal definition at 30

CFR 701.5. The Director is approving the proposed definition with the

understanding that it will be implemented as explained above. In

addition, the Director notes that the proposed definition lacks a

counterpart to provision (b) of the Federal definition of ``replacement

of water supply'' at 30 CFR 701.5. This counterpart is necessary

because W.Va. Code sec. 22-3-24(b) allows a water supply owner to waive

replacement. Only pursuant to the terms of paragraph (b) of the Federal

definition, however, is waiver of replacement allowed. Therefore, the

required amendment, at 30 CFR 948.16(sss), remains in effect.

Performance Standards

5. Sec. 22-3-13(b)(20). This subparagraph, concerning revegetation

performance standards, is amended by adding a provision stating that,

on lands eligible for remining, the revegetation responsibility period

will be not less than two growing seasons after the last year of

augmented seeding. The proposed provision differs slightly from its

Federal counterpart, in that it uses the term ``growing season'', while

the SMCRA provision uses the term ``year.'' However, the proposal is no

less stringent than Section 520(b)(20)(B) of SMCRA, because CSR 38-2-

2.57 further defines growing season to mean one year. Therefore, the

Director is approving the amendment.

6. Sec. 22-3-13(b)(22). This subparagraph is amended by deleting

the word ``shall'' in the last sentence and replacing that word with

``may.'' This sentence now states that ``[s]uch approval [of single

lift, durable rock excess spoil disposal fills] may not be unreasonably

withheld if the site is suitable. * * *'' The Director finds the

proposed revision does not change the meaning of the sentence and,

therefore, does not render the provision less effective than the

Federal requirements in 30 CFR 816/817.73.

7. Sec. 22-3-13(c)(3) is amended to allow the approval of permits

involving a variance from restoring approximate original contour (AOC)

for mountaintop removal operations when the postmining land use

includes fish and wildlife habitat and recreation lands. A decision on

this provision is being deferred. OSM requested public comment on a new

report concerning an evaluation of approximate original contour and

postmining land use in West Virginia. It is expected that some of the

comments received in response to the evaluation will address the

proposed revision. Therefore, OSM is deferring a decision on this

provision at this time, and will consider any additional comments on

the proposed postmining land use.

Inspection and Enforcement

8. Sec. 22-3-15(h). This paragraph is added to provide that the

WVDEP Director may provide a compliance conference when requested by

the permittee. The provision further provides that any such conference

may not constitute an inspection as defined in Sec. 22-3-15 of the

WVSCMRA. The Director finds the provision to be substantively identical

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

CFR 840.16(b).

9. Sec. 22-3-17(b). The subsection is amended by adding a paragraph

which provides that, within one year following the notice of a permit

revocation, subject to the discretion of the director and based upon a

petition for reinstatement, the revoked permit may be reinstated.

Further, the provision provides that the reinstated permit may be

assigned to any person who meets the permit eligibility requirements of

this article.

The Federal enforcement requirements at section 521 of SMCRA do not

specifically prohibit the reinstatement of a revoked permit. However,

OSM notified the WVDEP that to be approvable, the proposed State

provision must provide adequate safeguards to ensure that the

reinstated permit will satisfy all of the requirements of the WVSCMRA.

Currently, the proposed provision only requires that an applicant meet

the permit eligibility requirements of the WVSCMRA. At a minimum, the

State's reinstatement provisions need to provide for public

participation, require that the revoked permit will meet the

appropriate permitting requirements of the WVSCMRA, and require that

the mining and reclamation plan will be modified to address any

outstanding violations.

In response to OSM's concerns, the WVDEP stated that it, ``plans to

use a process that would be similar to a permit transfer which would

require the upgrade, if necessary, of the reinstated permit to meet

applicable performance standards and advertisement with the opportunity

for public comments.'' The State's existing transfer, assignment or

sale procedures at CSR 38-2-3.25 require an advertisement with the

opportunity for a 30-day comment period, that the bond be kept in full

force and effect before, during and after the transfer, assignment or

sale of the permit, and that the applicant correct all outstanding

unabated violations. To accommodate the sale of assets from one party

to another, the procedures also allow for the approval of a transfer,

assignment or sale of a permit in advance of the close of the comment

period.

The Director is approving the proposed State statutory revisions in

so far as Section 22-3-17(b) does not contain any provisions that are

less stringent than the requirements of SMCRA. However, because the

State's proposed reinstatement provisions do not reference the

transfer, assignment or sale requirements of Section 22-3-19(d) of

WVSCMRA or CSR 38-2-3.25, and because the WVDEP acknowledges that it

has not fully developed its reinstatement procedures, the State cannot

implement the proposed provisions until its program is further amended.

Therefore, the Director is requiring that the State further amend the

West Virginia program to adopt reinstatement procedures similar to its

transfer requirements contained in CSR 38-2-3.25. The procedures must

allow for public participation, require that the revoked permit meet

the appropriate permitting requirements of the WVSCMRA, and require

that the mining and reclamation plan be modified to address any

outstanding violations for any permit reinstated pursuant to Sec. 22-3-

17(b) of the WVSCMRA. However, in no event can a reinstated permit be

approved in advance of the close of the public comment period, and the

party seeking reinstatement must post a performance bond that will be

in effect before, during, and after the reinstatement of the revoked

permit.

Permit Issuance

10. Sec. 22-3-18(c) This paragraph is amended by deleting the word

``shall''

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in two locations and replacing those words with ``may.'' With these

revisions, a permit ``may'' not be issued until the applicant submits

proof that a violation is being corrected, and a permit ``may'' not be

issued if the applicant is found to be affiliated with a person who has

had a permit or bond revoked for failure to reclaim.

Section 510(c) of SMCRA provides that permits ``shall'' not be

issued by a regulatory authority if the circumstances described above

exist. Under existing Federal requirements, a regulatory authority has

no discretionary authority when it is obligated by law to deny a

permit. In general, the phrase ``may not'' means the same as ``shall

not'' and is not discretionary.

In response to OSM's concern about the interpretation of this

amendment, the WVDEP stated that the changes were of form only, and are

not intended to affect the meaning of the provision. Therefore, the

Director is approving the amendments because they do not change the

meaning of Sec. 22-3-18(c) of the WVSCMRA.

11. Sec. 22-3-18(f). This paragraph is added to provide that the

prohibition of Sec. 22-3-18(c) of the WVSCMRA may not apply to a permit

application due to any violation resulting from an unanticipated event

or condition at a surface coal mine eligible for remining under a

permit held by the applicant. The Director finds that the proposed

provision is substantively identical to and, therefore, no less

stringent than, the counterpart Federal provision at section 510(e) of

SMCRA.

12. Sec. 22-3-28. The title of this section is amended from special

``permits'' to special ``authorization'' for reclamation of existing

abandoned coal processing waste piles. In addition, the following is

added to the title: coal extraction pursuant to a government-financed

reclamation contract; coal extraction as an incidental part of

development of land for commercial, residential, industrial, or civic

use; no cost reclamation contract. In addition, throughout this

provision, the term ``permit'' is replaced with ``authorization.'' Some

of the provisions of Sec. 22-3-28 were initially contained in Sec. 20-

6-31 of the WVSCMRA.

Subsections 22-3-28 (a), (b), and (c) pertain to special

authorizations to engage in surface mining incidental to the

development of land for commercial, residential, industrial, or civic

use. These subsections are amended by replacing the word ``permit''

with ``authorization.'' Under the revised statutory provisions, a

person may engage in surface coal mining incidental to the development

of land for commercial, residential, industrial, or civic use after

obtaining a special authorization from the Director of the WVDEP.

Subsection (b) is also amended by changing the duration of a valid

authorization from ``until work permitted is completed'' to ``two

years.''

As discussed in the preamble to the Federal regulations at 30 CFR

part 707, upon considering a Senate amendment that included an

exemption for all construction, the conferees agreed to a modified

version of the Senate amendment which limited the exemption to

extraction of coal as an incidental part of government-financed

construction only, rather than all construction as originally provided

in the Senate language (44 FR at 14949, March 13, 1979).

In promulgating its definition of ``surface coal mining

operations'' at 30 CFR 700.5, OSM considered and rejected a provision

that would have clarified that the definition did not apply to coal

removal incidental to private construction. See comment 3, column 2, of

44 FR at 14914. OSM found that such an exemption was inconsistent with

Section 528 of SMCRA.

Furthermore, the Interior Board of Surface Mining Appeals (IBSMA),

which was subsequently incorporated into the Interior Board of Land

Appeals, twice ruled that ``the extraction of coal as an incidental

part of privately financed construction is not an activity excluded as

such from the coverage of the * * * regulatory program.'' See James

Moore, 1 IBSMA, 216 (1979) and Gobel Bartley, 4 IBSMA 219 (1992).

Finally, OSM has previously determined that 22-3-28(a)-(c) is

inconsistent with SMCRA. (See 46 FR 5915, 5924, Finding 14.4, January

21, 1981.) Therefore, the existing and proposed provisions in

paragraphs (a), (b) and (c) of Section 22-3-28 of the WVSCMRA relating

to incidental mining operations related to commercial, residential,

industrial, or civic use are less stringent than the Federal

requirements at Sections 528 and 701(28) of SMCRA and cannot be

approved.

Subsection 22-3-28(d) pertains to reclamation contracts issued

solely for the removal of existing abandoned coal processing waste

piles. Subsection (d) is amended by deleting the words ``special

permit'' and replacing them with the words ``reclamation contract.''

With this change, the director of the WVDEP may issue a reclamation

contract for removal of existing abandoned coal processing waste piles

when not in conflict with the WVSCMRA. In addition, the State is

deleting the requirement to have the director of the WVDEP promulgate

rules for such operations.

Subsection 22-3-28(d) is implemented in the regulations at CSR 38-

2-3.14. These two sections apply only to the disposal of refuse piles

that do not meet the definition of coal. The removal of abandoned

refuse piles that do not meet the definition of coal as set forth in

ASTM Standard D 388-77 is not subject to regulation under SMCRA (55 FR

21313-21314; May 23, 1990). Therefore, since the amended regulations

pertain to activities that are not subject to regulation under SMCRA,

the Director finds that the proposed changes to Sec. 22-3-28(d) of the

WVSCMRA do not render the West Virginia program inconsistent with SMCRA

or the Federal regulations.

Subsection 22-3-28(e). The State proposes to add new paragraph (e)

to allow the Director to provide a special authorization for coal

extraction pursuant to a government-financed reclamation contract, and

a no-cost reclamation contract. The primary purpose of these contracts

would be to ensure the reclamation of abandoned or forfeited mine

lands.

As discussed above in Finding A.1., OSM is in the process of

amending the Federal regulations at 30 CFR 707 and 874 concerning the

financing of Abandoned Mine Land reclamation (AML) projects that

involve the incidental extraction of coal (63 FR 34768; June 25, 1998).

The first Federal revision would amend the definition of ``government-

financed construction'' at 30 CFR 707.5 to allow less than 50 percent

government funding when the construction is an approved AML project

under SMCRA. The second revision would add a new section at 30 CFR

874.17 which would require specific consultations and concurrences with

the Title V regulatory authority for AML construction projects

receiving less than 50 percent government financing. The revised final

Federal regulations will be published soon, and will likely affect our

decision on the West Virginia amendments that concern government

financed construction on abandoned mine lands. Therefore, OSM is

deferring its decision on these amendments until after the publication

in the Federal Register of the final amendments to 30 CFR Parts 707 and

874.

Subsection 22-3-28(f). The WVDEP proposes to add paragraph (f) to

require that any person engaging in coal extraction pursuant to Section

28 must pay all applicable fees and taxes related to coal extraction,

replace or restore all water supplies affected by such extraction, and

obtain the consent of the

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surface and mineral owners prior to conducting such activities.

As discussed above in this Finding, not all of the proposed

provisions of this Sec. 22-3-28 are consistent with sections 528 and

701(28) of SMCRA. Therefore, section 22-3-28(f) is approved, but may be

implemented only with respect to those portions of Sec. 22-3-28 that

are approved in this rulemaking.

Senate Bill 378

13. Senate Bill 378--W.Va. Code Sec. 19-25-1 et. seq. Besides the

changes in its surface mining law, the WVDEP also submitted revisions

to Chapter 19, Article 25 of the West Virginia Code. The proposed

revisions are to encourage private landowners to allow the public to

enter private lands for recreational purposes; provide for limitation

of landowner liability for injury to persons entering private property

and injury to the property of persons entering such property; and

provide an exception for liability for deliberate, intentional or

malicious infliction of injury.

There is no specific language in SMCRA that limits liability of

landowners. However, SMCRA does provide for public participation during

the mining and reclamation process. Operators are to maintain minimum

insurance liability limits to provide for personal injury and property

damage protection. Citizens are also allowed to accompany an inspector

on an inspection. In addition, operators and landowners are to assume

responsibility for the sound future maintenance of structures, i.e.,

impoundments, sedimentation ponds, etc., that are to remain after

mining and reclamation is completed. State landowner liability

limitations cannot interfere with an individual's rights under SMCRA.

Therefore, before the statutory proposal could be found to be no less

stringent than SMCRA, the WVDEP was requested on October 10, 1997, to

provide OSM assurance that the proposed language will not inhibit

public participation under the WVSCMRA.

In response to OSM questions, the WVDEP stated that Senate Bill

378, and W.Va. Code 19-25-1 et seq., are not a part of the West

Virginia Surface Control Mining and Reclamation Act and will not affect

the public participation in the release process, nor access to the

reclaimed mine site for purposes of administering the approved program.

Additionally, the landowner is required under the approved program to

assume responsibility for the future maintenance of structures to be

left after reclamation, by signing a form which clearly sets forth the

maintenance requirements. The WVDEP stated that the change to W.Va.

Code section 19-25-1 is for the purpose of limiting civil liability and

does not extend to the maintenance liability of WVSCMRA.

The Director therefore finds that the amendments to W.Va. Code

section 19-25-1 do not render the West Virginia program less stringent

than SMCRA nor less effective than the Federal regulations. However,

Senate Bill 378 need not be approved as a program amendment, because

the provisions contained in it do not alter any of the obligations

imposed by WVSCMRA.

B. West Virginia Surface Mining Reclamation Regulations--CSR 38-2

Definitions

1. CSR 38-2-2.4--Definition of ``acid-producing coal seam.'' This

definition is amended by deleting the names of specific coal seams

commonly associated with acid-producing minerals. In addition, the last

sentence is amended by deleting reference to the multiple seams whose

names were deleted and to refer instead to site-specific seams. There

is no direct Federal counterpart to this State definition. However, the

Director finds that the proposed deletion does not diminish the intent

or clarity of the State definition, and does not render the West

Virginia program inconsistent with SMCRA or the Federal regulations.

2. CSR 38-2-2.43 Definition of ``downslope.'' This definition is

amended by adding the phrase ``except in operations where the entire

upper horizon above the lowest coal seam is proposed to be partly or

entirely removed.'' Under the proposed revision, the definition of

``downslope'' would not apply to mountaintop removal or multiple seam

operations. Prior to this amendment, the definition limited spoil

placement on all mining operations to the lowest coal seam being mined.

The State explained that the definition change is needed to

accommodate the unique requirements of multiple seam mining operations.

In effect, the State said, under the proposed change the term ``being

mined'' would be limited to the lowest coal ``prepared to be mined'' in

a mining sequence as part of an approved mining and reclamation plan.

An area that has been prepared to be mined would have been cleared, and

drainage controls would be in place.

Despite the WVDEP's explanation, however, the Director notes that

the amended language merely exempts such multiple seam mining

operations from the approved definition of downslope, and does nothing

to explain what the definition of ``downslope'' would be for such

multiple-seam operations. Therefore, the Director is not approving the

amendment to the definition of ``downslope.''

3. CSR 38-2-2.95 Definition of ``prospecting.'' This definition is

amended by adding the word ``substantial'' as a modifier of the word

``disturbance.'' Under the revised definition, prospecting would

include the gathering of environmental data where such activity may

cause any substantial disturbance of the land. The Federal regulations

at 30 CFR 701.5 contain a definition of ``coal exploration'' that is

synonymous with ``prospecting,'' except the Federal definition lacks

the word ``substantial.'' The WVDEP explained that the change in the

definition of prospecting is intended to reflect the language of SMCRA

at section 512(a) which provides that each State program shall include

a requirement that coal exploration operations which substantially

disturb the natural land surface be conducted in accordance with

exploration regulations issued by the regulatory authority. However,

the Director notes that 30 CFR 772.11 requires that a notice of intent

be filed for any coal exploration operation, regardless of whether any

disturbance at all will occur. In promulgating this revised Federal

regulation on December 29, 1988, the Director stated that ``for the

regulatory authority to determine which proposed coal exploration

operations may substantially disturb the natural land surface, it must

be informed of all proposed exploration.'' (53 FR 52943). The WVDEP

stated that the West Virginia program will continue to require notice

to the WVDEP of both activities that do and do not cause substantial

disturbance of the natural land surface. These notice provisions are

contained in CSR 38-2-13.1 and 38-2-13.4(b).

However, the Director notes that a conflict still exists between

the State's definition of ``prospecting'', which now proposes to

exclude the gathering of environmental data which does not cause

``substantial'' disturbance of the land surface, and the notice

requirements of CSR 38-2-13.1. Therefore, the Director is not approving

the addition of the word ``substantial'' to modify the word

``disturbance'' in the definition of ``prospecting.''

4. CSR 38-2-2.108 Definition of ``Sediment control or other water

retention structure, sediment control or other water retention system,

or sediment pond.'' The amendment adds the following sentence:

``Examples include wildlife ponds, settling basins

[[Page 6206]]

and all ponds and facilities or structures used for water treatment.''

The Director finds that the added language is illustrative and does not

render the State definition less effective than the Federal definitions

of ``sedimentation pond'' and ``siltation structure'' at 30 CFR 701.5.

5. CSR 38-2-2.120 Definition of ``Substantially disturb.'' This

definition is amended by changing the phrase ``land or water

resources'' to read ``land and water resources.'' The WVDEP has

explained that this change was an editorial change made by the State

legislature. Further, the WVDEP interprets the provision to mean that

if land and/or water resources are significantly impacted by

prospecting that will mean that those resources have been

``substantively disturbed.'' The Director finds that the amended

definition can be approved to the extent that it is construed in the

manner explained by the WVDEP. However, because future administrations

could construe the use of the term ``and'' in its more commonly

understood sense, as a conjunctive connector, the Director is requiring

that West Virginia amend its program by changing the phrase ``land and

water resources'' to ``land or water resources'', in the definition of

``substantially disturb,'' or by otherwise making it clear that the

term ``substantially disturb,'' for the purposes of prospecting,

includes a significant impact on either land or water resources.

6. CSR 38-2-3.2.e Readvertisement. This provision is amended by

deleting the last sentence. The deleted language required that permits

that are being renewed or significantly revised, and permit

applications that are being significantly revised must be advertised in

accordance with paragraph 38-2-3.2.b and paragraph (6), subsection (a),

section 9 of the WVSCMRA. The Director finds that the deletion does not

render the West Virginia program less effective than the Federal four-

week requirement at 30 CFR 773.13(a) because the West Virginia program

continues to require four weeks of newspaper advertisement at

subsections 3.2(a), 3.27.a.7. and 3.28.b.1. of the State's regulations.

7. CSR 38-2-3.12.a.1. Subsidence control plan. This provision is

amended to require that the survey and map required by this subsection

also identify the location and type of water supplies, and whether or

not subsidence could contaminate, diminish or interrupt water supplies

within an angle of draw of at least 30 degrees. The amendment also

provides for an alternative angle of draw based on site specific

analysis.

The State amendments differ from the counterpart Federal

requirements at 30 CFR 784.20(a) in that the Federal provision does not

limit the identification of the water supplies to those within a

specified angle of draw. Also, the State provision does not require

identification of the type and location of all structures within the

permit and adjacent areas. Finally, the amendments lack the Federal

requirement, contained in 30 CFR 784.20(a)(2), that the permit

application include a narrative indicating whether subsidence, if it

occurred, could cause material damage to or diminish the value or

reasonably foreseeable use of such structures or renewable resource

lands or could contaminate, diminish, or interrupt drinking, domestic,

or residential water supplies.

In response to OSM's questions, the WVDEP explained that the West

Virginia program permit application, concerning the information needed

for the probable hydrologic consequences (PHC) determination at section

38-2-3.22, requires an applicant for an underground mine permit to

conduct a ground water and surface water inventory which includes all

areas within one-half mile of the proposed operation, including

underground limits. This information is then used by the WVDEP permit

reviewers to evaluate for possible impacts on those resources by

subsidence. If during this evaluation it appears to the reviewer that

impacts are likely outside the proposed 30-degree angle of draw, then

the reviewer would document that need and expand the survey beyond the

30 degree limit.

The WVDEP explained that State use of the 30-degree angle of draw

standard is intended to clarify a perceived ambiguity in the Federal

regulation at 30 CFR 784.20(a)(3). The Federal provision requires a

survey of the quantity and quality of all drinking, domestic, and

residential water supplies within the permit and adjacent area that

could be contaminated, diminished, or interrupted by subsidence. To

clarify and standardize the term ``adjacent area,'' the State has

chosen to require the surveys within a 30-degree angle of draw.

However, the WVDEP explained, that since a permittee would have already

provided a surface and groundwater inventory as part of the

requirements for the PHC regulations at 38-2-3.22, the WVDEP will have

the information available to require an enlargement of the 30-degree

angle of draw requirement, if necessary. That is, if WVDEP's analysis

of the PHC information reveals that impacts are likely outside the 30-

degree angle of draw area, the WVDEP can expand the area within which

the subsidence-related information survey is required. Therefore, the

WVDEP asserts, additional information on water supplies will not be

limited by the 30-degree angle of draw provision nor by the ``adjacent

area'' standard as contained in the Federal and State provisions.

The Director finds that, despite the WVDEP's explanation above

concerning the use of PHC data, the State program provides no specific

authority to require a pre-subsidence survey in areas outside the

proposed 30 degree angle of draw. Without such authority, the West

Virginia program is rendered less effective than the Federal

regulations at 30 CFR 784.20(a)(1) which require a map of the permit

and adjacent areas showing the location, without limitation by an angle

of draw, of lands, structures, and water supplies that could be damaged

by subsidence. Therefore, the Director is not approving the phrase

``within an angle of draw of at least 30-degrees'' at Sec. 38-2-

3.12.a.1. Also, the Director is requiring that the West Virginia

program be further amended to also require on the map provided for by

Sec. 38-2-3.12.a.1. the identification of the type and location of all

lands, structures, and drinking, domestic and residential water

supplies within the permit and adjacent areas because Sec. 38-2-

3.12.a.1. lacks that requirement.

Finally, the Director is requiring that the West Virginia program

be further amended to require that the permit application include a

narrative indicating whether subsidence, if it occurred, could cause

material damage to or diminish the value or reasonably foreseeable use

of such structures or renewable resource lands or could contaminate,

diminish, or interrupt drinking, domestic, or residential water

supplies.

38-2-3.12.a.1 is also being amended to provide for a site-specific

angle of draw other than the 30-degree angle of draw. Approval of such

a site-specific angle of draw will be based on the results of site

specific analyses and demonstration that a different angle of draw is

justified. Computer program packages predicting surface movement and

deformation caused by underground coal extraction can be utilized.

The proposed language differs from the counterpart Federal

authorization at 30 CFR 817.121(c)(4)(ii) for a site specific angle of

draw in the following ways. The Federal provision provides that such a

site specific angle of draw be based on site-specific geotechnical

analysis of the potential surface impacts

[[Page 6207]]

of the proposed mining operation. Furthermore, the Federal provision

requires a written finding by the regulatory authority that, based on

the geotechnical analysis, the site specific angle of draw has a more

reasonable basis than the 30-degree angle of draw. In response to OSM's

comments, the WVDEP stated that to approve an angle of less than 30

degrees, ``an affirmative demonstration is required by the applicant

that there will be no subsidence within that angle of draw (i.e. the

geotechnical information required to support this claim will be on a

case by case basis).'' The WVDEP did not clarify, however, that the

regulatory authority would make a written finding concerning each

proposed site-specific angle of draw.

Considering the clarification by the WVDEP discussed above, the

Director finds that the provision to allow a site-specific angle of

other than the 30-degree angle of draw can be approved with the

understanding that such an alternative angle of draw is justified based

on a site-specific geotechnical analysis of the potential surface

impacts of the mining operation.

However, the Director believes that these requirements should be

added formally to the State's program, to avoid any ambiguity of

interpretation in the future. Therefore, she is requiring that the

State amend the West Virginia program to provide that approval of any

alternative angle of draw will be based on a written finding that a

proposed angle of draw of less than 30 degrees is justified based on

site-specific geotechnical analysis of the potential surface impacts of

the proposed mining operation.

8. CSR 38-2-3.12.a.2--Subsidence control plan. This new provision

adds language to require surveys of water supplies and structures that

could be damaged within the applicable angle of draw. Language is also

added to provide for a survey of the condition of all non-commercial

buildings or residential dwellings and structures related thereto that

may be materially damaged or for which the foreseeable use may be

diminished by subsidence within the area encompassed by the applicable

angle of draw.

The proposed provision concerning the survey of water supplies is

less encompassing than the counterpart Federal regulations at 30 CFR

784.20(a)(3). Specifically, 30 CFR 784.20(a)(3) provides for a pre-

subsidence survey (without limitation by an angle of draw) of the

quantity and quality of all drinking, domestic, and residential water

supplies within the permit area and adjacent area that could be

contaminated, diminished, or interrupted by subsidence. By contrast,

the proposed State provision only requires the water surveys to be

conducted ``within the area encompassed by the applicable angle of

draw.'' As discussed above in Finding B-7, the Director has determined

that the State program provides no specific authority to require a pre-

subsidence survey in areas outside the proposed 30 degree angle of

draw.

The Director is approving the proposed provision except for the

phrase, ``within the area encompassed by the applicable angle of draw''

which renders the West Virginia program less effective than the

counterpart Federal regulations at 30 CFR 784.20(a)(3) and cannot be

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

program be further amended to be no less effective than 30 CFR

784.20(a)(3) by requiring a pre-subsidence survey, without limitation

by an angle of draw, of the quantity and quality of all drinking,

domestic, and residential water supplies within the permit area and

adjacent area that could be contaminated, diminished, or interrupted by

subsidence.

Secs. 38-2-3.12.a.2.A and .B. These two provisions are added to

allow an exemption or postponement of the pre-subsidence structural

survey requirements at Sec. 38-2-3.12.a.2. for areas of extraction of

less than or equal to 60 percent. To receive an exemption under

Sec. 38-2-3.12.a.2.A., it must be demonstrated that damage to the

structure(s) will not occur. To receive a postponement under Sec. 38-2-

3.12.a.2.B., it must be demonstrated that damage to the structure(s)

will not occur, and that no mining (extraction greater than 60 percent)

within the applicable angle of draw shall occur until the pre-

subsidence structural survey is completed. In addition, Sec. 38-2-

3.12.a.2. provides that if extraction exceeds 60 percent in areas

granted an exemption and/or postponement, the exemption and/or

postponement will be voided for the entire underground mining

operation. Furthermore, the presumption of causation will apply to any

damage to structure(s) as a result of earth movement within a 30 degree

angle of draw from any underground extraction.

The counterpart Federal regulations at 30 CFR 784.20 do not

explicitly allow for exemptions from or postponements of the pre-

subsidence survey requirement. However, the Federal regulations at 30

CFR 784.20(a)(3) require a survey only of structures ``that may be

materially damaged or for which the reasonably foreseeable use may be

diminished by subsidence.'' The proposed State-authorized exemption

and/or postponement are contingent on a finding by the WVDEP that the

permittee has demonstrated that damage to the structure(s) will not

occur. Such a finding will be based upon extraction of 60 percent or

less, and upon the demonstration provided by the permittee that damage

to the structure(s) will not occur. In its response to OSM dated April

24, 1998, the WVDEP stated that ``[t]he WVDEP requires the applicant to

identify those areas on a map for which the exemption is being

requested, to provide the necessary documentation (pillar designs,

amount of cover, etc.), and limits the extraction rate to less than

60%.'' To qualify for a postponement, the applicant follows the same

process as to qualify for an exemption.

The Director notes that the proposed language does not clarify what

would comprise the minimum information needed in a demonstration to

convince the director of the WVDEP that the exemption or postponement

is warranted. That is, what should the required demonstration consist

of? To be no less effective than the Federal regulations, such a

demonstration should consist of a site-specific geotechnical analysis

of the potential surface impacts of the mining operation.

Proposed Sec. 38-2-3.12.a.2.B. also provides that no mining

(extraction greater than 60 percent) within the applicable angle of

draw shall occur until the pre-subsidence structural survey is

completed. The Director notes that any amendment that would authorize a

delay in the timing of the structural condition survey required by 30

CFR 784.20(a)(3) must also provide copies of the survey and any

technical assessment or engineering evaluation to the property owner.

In addition, the proposed provisions must provide opportunity for the

structure owner to comment on the adequacy of the structural condition

survey and the planned implementation of the subsidence control plan as

it pertains to the structure in view of the results of the survey. The

proposed amendment lacks these provisions.

The Director finds that the proposed State provisions at 38-2-

3.12.a.2.A. and 3.12.a.2.B., which authorize exemptions and

postponements where it is demonstrated that damage will not occur, are

less effective than the Federal provisions at 30 CFR 784.20(a)(3) and

817.121(c)(4)(ii) for the reasons stated above.

38-2-3.12.a.2. also provides that if the permittee is denied access

to the land or property for the purpose of

[[Page 6208]]

conducting the pre-subsidence survey, the permittee will notify the

owner, in writing, that no presumption of causation will exist. The

Director finds this provision to be substantively identical to the

counterpart Federal provision at 30 CFR 784.20(a)(3).

38-2-3.12.a.2. also requires that the survey report be signed by

the person or persons who prepared and conducted the survey, and that

copies of the survey report be provided to the property owner and to

the WVDEP. The Director finds the proposed provision to be

substantively identical to and therefore no less effective than the

Federal regulations at 30 CFR 784.20(a)(3).

However, the Director finds that the State's proposal lacks the

requirement, contained in 30 CFR 784.20(a)(3), that the permit

applicant pay for any technical assessment or engineering evaluation

used to determine the premining condition or value of non-commercial

buildings or occupied residential dwellings or structures related

thereto and the quality of drinking, domestic or residential water

supplies. Also, the State's proposal lacks the requirement that the

applicant must provide copies of any technical assessment or

engineering evaluation to the property owner and regulatory authority.

Therefore, the Director is requiring that the State further amend the

West Virginia program to be no less effective than 30 CFR 784.20(a)(3)

to provide that the permit applicant pay for any technical assessment

or engineering evaluation used to determine the premining condition or

value of structures and water supplies, and that copies of any

technical assessments or engineering evaluations be provided to the

property owner and regulatory authority.

Finally, amended 30-2-3.12.a.2. includes a definition of non-

commercial building. The State definition is substantively identical to

the counterpart Federal definition of ``non-commercial building'' at 30

CFR 701.5 with one exception. Unlike the State definition, the Federal

definition also includes any building that is used on a ``temporary

basis'' as a public building, or community or institutional building.

As such, the State's proposed definition is less effective than its

Federal counterpart and cannot be approved. In addition, the Director

is requiring that the State further amend 38-2-3.12.a.2. to clarify

that ``non-commercial building'' includes such buildings used on a

regular or temporary basis.

9. CSR 38-2-3.14--Removal of abandoned coal refuse disposal piles.

The State is proposing to amend 38-2-3.14 by deleting 3.14.b.7., which

requires the submission of a determination of probable hydrologic

consequences, and 3.14.b.8., which requires the submission of a

hydrologic reclamation plan, as part of an application for a special

permit for the removal of existing abandoned coal processing waste

piles. Also, the State proposes to amend 3.14.b.12.E., to require a

stability analysis of the coal waste pile only if requested by the

Director. Next, the State proposes to delete existing 3.14.b.15.B.,

which requires plans, cross sections and design specifications for

diversion ditches. Finally, the State proposes a new section

3.14.b.13.B., which requires that surface water be diverted around or

``over'' the material remaining after removal of a coal waste pile, by

properly designed and stabilized diversion channels which have been

designed using the best current technology to provide protection to the

environment and the public. The channels are required to be designed

and constructed to ensure stability of the remaining material, control

erosion, and minimize water infiltration into the material.

The provisions at 38-2-3.14 pertain to the disposal of refuse

disposal piles that do not meet the definition of coal. The removal of

abandoned refuse piles that do not meet the definition of coal as set

forth in ASTM Standard D 388-77 is not subject to regulation under

SMCRA (55 FR 21313-21314; May 23, 1990). Therefore, since the amended

regulations pertain to activities that are not subject to regulation

under SMCRA, the Director finds that the proposed deletions do not

render the West Virginia program less effective and can be approved.

The Director notes that the proposed State rules apply only to non-coal

refuse (red dog) piles. An operator proposing to remove or reprocess

refuse piles which contain coal, as provided by CSR 38-2-3.14.a, must

submit a permit application that meets all of the applicable

requirements of CSR 38-2-3.

10. CSR 38-2-3.29--Incidental boundary revisions (IBR). These

provisions are amended at subsection 3.29.a. by adding language to

authorize IBR's for areas where it has been demonstrated to the WVDEP

director that limited coal removal on areas immediately adjacent to the

existing permit is the only practical alternative to recovery of

unanticipated reserves or necessary to enhance reclamation efforts or

environmental protection. The WVDEP has explained that the primary

purpose of this change is to facilitate enhanced reclamation of

abandoned mine sites adjacent to the permit area, thus relieving the

demand for reclamation funds by reducing the number of sites on the AML

inventory. The WVDEP stated that such IBR's must comply with all

applicable environmental performance standards, and would be subject to

the required findings provided at 38-2-3.29.d. prior to approval.

The Director finds the proposed amendment to be not inconsistent

with the intent and purpose of Section 511(a) of SMCRA and 30 CFR

774.13(d), except as noted below. On February 21, 1996 (61 FR 6511,

6520) the Director approved a previous amendment to this provision. In

that approval, the Director stated 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.'' That is, the Director had determined that to

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

774.13(d) which pertain to incidental boundary revisions, coal removal

cannot be the primary purpose of an IBR. Therefore, the Director is not

approving the phrase ``the only practical alternative to recovery of

unanticipated reserves or'' because it would authorize coal removal as

the primary purpose of an IBR.

11. CSR 38-2-3.35--Measurement tolerances. This provision is added

to specify the standards for grade and linear measurements.

Specifically, all grade measurements and linear measurements shall be

subject to a tolerance of two percent. All angles shall be measured

from the horizontal and shall be subject to a tolerance of five

percent. The amendment provides, however, that the authorized

deviations from the approved plan do not affect storage capacity and/or

performance standards. In effect, the measurement tolerances relate to

the amount of allowed variances between approved designs and the ``as

built'' measurements of those designs. That is, the measurement

tolerances pertain to constructed, or ``as built'' structures and not

to design measurements. Neither SMCRA nor the Federal regulations

contain counterparts to these proposals. However, the Director finds

that the proposed tolerances, with the requirement that approved

storage capacities and performance standards must be met, are

reasonable, not inconsistent with SMCRA or the Federal regulations, and

can be approved.

Sediment Control Structures

12. CSR 38-2-5.5.c--Permanent impoundments. This provision is

amended to add that for permanent impoundments, the landowner sign a

request that the structure be left for

[[Page 6209]]

recreational or other purposes. There is no Federal counterpart to this

proposal. Language is deleted which requires that the operator also

sign the request, and that the request assert that the landowner

assumes liability for the structure and will provide for sound future

maintenance of the structure. The Federal regulations at 30 CFR

800.40(c) allow for the retention of permanent impoundments after bond

release, as long as provisions for sound future maintenance by the

operator or landowner have been made with the regulatory authority. The

West Virginia program provides for sound future maintenance by the

permittee or landowner at 38-2-12.2.c.2.D. That form (MR-12) assigns

the landowner responsibility for the sound future management of any

permanent impoundments. The Director finds, therefore, that the

amendment at subsection 5.5.c does not render the West Virginia program

less effective than the Federal regulations and can be approved.

Blasting

13. CSR 38-2-6.5.a.--Blasting procedures. This provision is amended

by adding language to allow for blasting on Sunday if the WVDEP

Director determines that the blasting is necessary and there has been

an opportunity for a public hearing. The Federal regulations do not

prohibit blasting on Sundays. According to the Federal regulations, an

operator is only allowed to conduct blasting activities at times

approved by the regulatory authority and announced in the blasting

schedule. Therefore, the Director finds that the proposed revision does

not render the West Virginia program less effective than the Federal

requirements at 30 CFR 816/817.64.

Fish and Wildlife

14. CSR 38-2-8.2.e.--Habitat development. This provision is added

to encourage and specify the criteria for timber windrowing to promote

the enhancement of food, shelter, and habitat for wildlife. As

proposed, unmarketable timber may be used for windrowing, but the use

of spoil material, debris, abandoned equipment, root balls, and other

undesirable material in a windrow is prohibited. Such windrowing must

be approved in the mining and reclamation plan, and must be approved as

part of a wildlife planting plan and authorized where the postmining

land use includes wildlife habitat. The proposed requirements would

apply to the construction of timber windrows in both steep and non-

steep slope areas.

The Federal regulations do not contain specific criteria concerning

the design or construction of timber windrows. However, SMCRA at

section 515(d)(1) and the Federal regulations at 30 CFR 816.107(b)

prohibit the placement of debris, including that from clearing and

grubbing on the downslope in steep slope areas. The Director finds that

the proposed provision is not inconsistent with the Federal provisions

cited above. As with the Federal provisions, the State provision is

intended to prohibit debris, such as spoil material, abandoned

equipment, root balls, and other undesirable material, on the

downslope. In addition, the timber windrowing would be designed for

wildlife habitat, the designs would be reviewed by a State wildlife

biologist specialist, and windrowing would only be approved for

postmining land use that includes wildlife habitat. Though not

specifically stated in the proposed rule, the WVDEP has informed OSM

that the design of the windrow will be reviewed by a State wildlife

biologist as part of the wildlife enhancement plan for a postmining

land use containing wildlife habitat. (Administrative Record No. WV-

1085) The Director finds that 38-2-8.2.e is consistent with SMCRA

section 515(d)(1), and no less effective than the Federal regulations

at 30 CFR 780.16 and 816.107(d) provided the design of the windrowing

will be reviewed by a State wildlife biologist as part of the wildlife

enhancement plan for a postmining land use containing wildlife habitat.

The Director notes that the Federal regulations at 30 CFR 948.16(ttt)

continue to require that the State regulations at CSR 38-2-14.19

concerning the disposal of noncoal mine wastes be amended at subsection

d., which concerns windrowing. The WVDEP has indicated that 38-2-

14.19.d. will be proposed for deletion in a future rulemaking session.

Revegetation

15. CSR 38-2-9.2.i.2.--Revegetation plan. This provision is amended

by adding a sentence to specify that an alternate maximum or minimum

soil pH may be approved based on the optimum pH for the revegetated

species. There is no direct Federal counterpart to the State standards

for lime and soil pH. However, the Director finds that the amendment is

not inconsistent with the Federal regulations at 30 CFR 816/817.111(a),

which provide for the establishment of a diverse, effective, and

permanent vegetative cover, and 30 CFR 816/817.22, which require that

the resulting soil medium be the best available in the permit area to

support revegetation. Therefore, the provision is approved.

16. CSR 38-2-9.3.h.1.--Standards for evaluating vegetative cover.

This provision is deleted and replaced in its entirety. The new

language requires that the minimum stocking rate of commercial tree

species shall be in accordance with the approved forest management plan

prepared by a registered professional forester. The revised provision

also changes the minimum tree stocking rate from 600 trees per acre to

no less than 450 stems per acre. In order to qualify for the

``Commercial Woodlands'' postmining land use and the reduced tree

stocking rates contained in 38-2-9.3.h., the permittee must have an

approved management plan prepared by a registered professional

forester. The West Virginia Division of Forestry (WVDOF) and the WVDEP

signed a memorandum of understanding on June 4, 1998, to ensure

compliance with 30 CFR 816.116/817(b)(3)(i) (Administrative Record

Number WV-1109). In that memorandum of understanding, the WVDOF agreed

to review in a timely manner all ``Commercial Woodlands'' planting and

forest management plans to be included in surface mining permits issued

by the WVDEP. If after review, the WVDOF agrees that the planting and

forest management plan is in conformance with the prevailing and

regional conditions, the WVDOF will provide the WVDEP with a letter

indicating such agreement. Therefore, the Director finds this amendment

to be consistent with the Federal regulations at 30 CFR 816/

817.116(b)(3)(i).

17. CSR 38-2-9.3.h.2.--Standards for evaluating vegetative cover.

The State is proposing to delete the provision that a minimum of 75

percent of the countable trees identified in the planting plan be

commercial tree species. There is no direct Federal counterpart to this

provision. However, considering the memorandum of understanding between

the WVDOF and the WVDEP discussed above at Finding B.16., the Director

finds that the deletion does not render the West Virginia program less

effective than the Federal regulations concerning the revegetation

standards for success of areas to be developed for forest products at

30 CFR 816/817.116(b)(3).

18. CSR 38-2-9.3.h.2. (formerly h.3)--Standards for evaluating

vegetative cover. This provision is amended to change the survival rate

from 450 trees to 300 trees per acre, or the rate specified in the

forest management plan, whichever is greater. There is no direct

Federal counterpart to these amendments. However, considering the

[[Page 6210]]

memorandum of understanding between the WVDOF and the WVDEP discussed

above at Finding B.16., the Director finds that the amendments are not

inconsistent with the Federal regulations at 30 CFR 816/817.116(b)(3).

19. CSR 38-2-14.11--Procedures to obtain inactive status.

Subsection 14.11.e. is amended to delete the exemption from the three-

year limit on inactive status for preparation plants and load-out

facilities. Added language authorizes the WVDEP Director to grant

inactive status for a period not to exceed ten years, provided the

facilities are maintained in such condition that operations could be

resumed within 60 days.

Subsection 14.11.f. is added to authorize the WVDEP Director to

grant inactive status for a period not to exceed current permit term

plus five years for underground mining operations provided the

operation is maintained in such condition that the operations could be

resumed within 60 days and openings are protected from unauthorized

entry.

Subsection 14.11.g. is added to authorize the WVDEP Director to

grant inactive status for a period not to exceed ten years for coal

refuse sites provided the completed lifts of the coal refuse site are

regraded (which may include topsoiling), seeded and drainage control,

where possible, has been installed in accordance with the terms and

conditions of the permit.

Subsection 14.11.h. is added to provide that the WVDEP Director may

grant inactive status for a permit for a longer term than set forth in

14.11.e. and f., provided the permittee furnishes and maintains bond

that is equal to the estimated actual reclamation cost, as determined

by the director. The director shall review the estimated actual

reclamation cost at least every two and one-half years.

In support of this amendment, the WVDEP explained that the proposed

amendments set maximum time limits for inactive status for underground

mines, preparation plants, load-out facilities and coal refuse sites.

The proposed amendments also set standards the sites must meet before

inactive status can be approved and the condition the mining operations

must be maintained. Furthermore, the WVDEP explained, the amendments

contain a requirement that a bond adequacy determination be conducted

periodically to assure bond is sufficient to accomplish reclamation in

event of forfeiture.

The Federal regulations at 30 CFR 816/817.131 concerning temporary

cessation of operations do not specify, as the proposed amendments do,

a maximum time limit for temporary cessation, that inactive facilities

must be maintained in a condition that would allow them to be

reactivated within 60 days, and that the regulatory authority must

periodically review the adequacy of the bond. However, the Federal

regulations do provide that temporary abandonment shall not relieve a

person of his obligation to comply with any provisions of the approved

permit. The West Virginia program contain a similar requirement at CSR

38-2-14.11.a.9. Temporarily abandoned sites in West Virginia must be

permitted, and the provisions of the permit must be met. That is, an

approved permit shall be maintained throughout the life of the inactive

status. If a permit expires during an inactive status and is not

renewed, the site must be reclaimed. The Director finds that the

amendments are not inconsistent with the Federal requirements and can

be approved.

20. CSR 38-2-14.15.b.6.A.--Contemporaneous reclamation standards

for mountaintop removal. This provision is amended to provide that the

Director of the WVDEP may grant a variance to the disturbed and

unreclaimed acreage standard not to exceed 500 acres on operations

which consist of multiple spreads of equipment.

In support of this amendment, the WVDEP asserted that the proposed

amendment better assures contemporaneous reclamation because it

recognizes and accounts for operational and geologic factors in

formulating the mining and reclamation plan, especially on large,

multiple-seam mining operations. Furthermore, the WVDEP asserts, the

variance of 500 acres proposed by this amendment is not automatically

approved, but is discretionary with the regulatory authority and would

be granted only when justified.

The Federal time and distance standards for contemporaneous

reclamation at 30 CFR 816.101 have been indefinitely suspended. (57 FR

33875, July 31, 1992) The remaining Federal regulations at 30 CFR 816/

817.100 require that reclamation efforts occur as contemporaneously as

practicable with the mining operations. The WVDEP asserts that is

precisely the purpose of the proposed amendment: to properly plan for

contemporaneous reclamation with large, multiple-seam operations.

The Director finds that the 500-acre standard, when implemented as

described by the WVDEP is not inconsistent with the Federal regulations

at 30 CFR 816.100 which provide for reclamation as contemporaneously as

practicable with the mining operation, and can be approved.

21. CSR 38-2-14.15.c.--Contemporaneous reclamation standards;

reclaimed areas. The State has revised its provisions concerning

reclaimed areas to delete language concerning Phase I bond release and

semi-permanent ancillary facilities. Language is added to provide that

regraded areas must also be stabilized.

Also added is a list that identifies areas that shall not be

included in the calculation of disturbed area. The list includes:

Subsection 14.15.c.1. Semi-permanent ancillary facilities (such as

haulroads and drainage control systems); 14.15.c.2. Areas within the

confines of excess spoil disposal fills that are being constructed in

the conventional method; 14.15.c.3. Areas containing 30 aggregate acres

or less which have been cleared and grubbed and have the appropriate

drainage controls installed and certified; 14.15.c.4. Areas that have

been cleared and grubbed which exceed the 30 aggregate acres and/or

those which will not be included in the operational area within six

months, if the appropriate drainage control structures are installed

and certified and temporary vegetative cover is established; and

14.15.c.5. Areas which have been backfilled and graded with material

placed in a stable, controlled manner which will not subsequently be

moved to final grade, mechanically stabilized, and had drainage

controls installed, but not necessarily certified.

In support of this amendment, the WVDEP stated that it has been

determined by field observations that there is a need to recognize

operational and geographic conditions in order to accomplish

reclamation as contemporaneously as possible. In addition, the WVDEP

stated that it recognizes the need for flexibility with earth moving

activities in certain situations so that reclamation can occur as

contemporaneously as practicable with coal removal. The WVDEP asserts

that the proposed amendment better assures contemporaneous reclamation

than the rules currently in effect because it recognizes and accounts

for those conditions in formulating a mining and reclamation plan.

As stated above in Finding B-20, the Federal time and distance

requirements for contemporaneous reclamation have been suspended. The

existing Federal rules merely require that reclamation activities occur

as contemporaneously as practicable with the mining operations.

However, the amendments

[[Page 6211]]

appear reasonable when the type of mining operations are considered,

and are not inconsistent with the concept of contemporaneous

reclamation at 30 CFR 816/817.100. Therefore, the Director finds the

amendments can be approved.

22. CSR 38-2-14.15.d.--Contemporaneous reclamation standards;

applicability. This provision is amended by adding a final sentence to

provide that the WVDEP Director may consider contemporaneous

reclamation plans on multiple permitted areas with adjoining boundaries

where contemporaneous reclamation is practiced on a total operation

basis. The Federal regulations at 30 CFR 816/817.100 require that

reclamation activities occur as contemporaneously as practicable with

the mining operations, and do not prohibit the development of a

contemporaneous reclamation plan for multiple permitted areas with

adjoining boundaries. Therefore, the Director finds that the amendments

are not inconsistent with the Federal requirements and can be approved.

Subsidence Control

23. CSR 38-2-16.2.c.--Surface owner protection; material damage.

This provision is amended by adding a definition of the term ``material

damage''. The proposed definition is identical to the counterpart

Federal definition at 30 CFR 701.5 except that three words are missing.

In response to OSM's comments, the WVDEP acknowledged the inadvertent

omission of the word ``damage'' after the word ``material'' in the

first sentence, and the missing words ``or facility'' after the word

``structure'' in the last part of the first sentence.

In response to OSM's comments, WVDEP concluded that the State's

definition of ``structure'', at 38-2-2.116, can be construed to include

``facilities'', since it includes manmade structures. The Director is

approving this amendment, therefore, with the following understandings:

that the State will add the word ``damage'' after the word ``material''

in future rulemaking, and will interpret the current definition as if

the inadvertently omitted word were present; and that the State will

consider its definition of ``structure'' at 38-2-2.116 to include

``facilities'' as used in the Federal sense.

24. CSR 38-2-16.2.c.2.--Surface owner protection. This amendment

adds a final sentence to provide that the provision to correct

subsidence-related material damage applies only to subsidence related

damage caused by underground mining activities conducted after October

24, 1992. The proposed change is to ensure consistency with the Energy

Policy Act of 1992 (EPACT). EPACT was signed into law on October 24,

1992. The Federal subsidence requirements of that Act are now in

section 720 of SMCRA. Section 720 of SMCRA requires underground mining

operations conducted after October 24, 1992, to promptly repair or

compensate for material damage caused by subsidence to non-commercial

buildings or any occupied residential dwelling and related structures.

The Director finds the added language to be substantively identical to

SMCRA section 720 and the Federal regulations at 30 CFR 817.121(c)(2)

concerning repair or compensation for subsidence damage.

25. CSR 38-2-16.2.c.3.--Presumption of causation. This provision is

added to provide that if alleged subsidence damage occurs to protected

structures as a result of earth movement within the area in which a

pre-subsidence structural survey is required, a rebuttable presumption

exists that the underground mining operation caused the damage.

CSR 38-2-16.2.c.3.A.--This provision is added to provide that if

the permittee was denied access to conduct a pre-subsidence survey, no

presumption of causation will exist.

CSR 38-2-16.2.c.3.B.--This provision is added to provide that the

presumption will be rebutted if, for example, the evidence establishes

that: the damage predated the mining in question; the damage was

proximately caused by some other factors or was not proximately caused

by subsidence; or the damage occurred outside the surface area within

which subsidence was actually caused by the mining in question.

CSR 38-2-16.2.c.3.C.--This provision is added to provide that in

any determination of whether damage to protected structures was caused

by subsidence from underground mining, all relevant and reasonably

available information will be considered by the director.

The Director finds that CSR 38-2-16.2.c.3. is substantively

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

regulations at 30 CFR 817.121(c)(4), except as noted below.

The Federal regulations at 30 CFR 817.121(c)(4) contain

requirements for establishing and rebutting a presumption of causation

by subsidence. Unlike the Federal requirements, the proposed State

provisions at 38-2-16.2.c.3. apply the presumption of causation to

subsidence related damage within the area where a presubsidence

structural survey is required, whereas the Federal regulations at 30

CFR 817.121(c)(4)(i) apply the presumption to the surface area within

the angle of draw. Since the proposed State regulations at 38-2-

3.12.a.2. require the survey to be conducted for any structures within

the angle of draw, however, the effect of both the Federal and State

provisions should be the same, namely, that the presumption will apply

to all structures within the 30 degree angle of draw.

The WVDEP has stated, however, that it would not apply the

presumption for a structure if the applicant has already provided, and

the State accepted, a demonstration of ``no anticipated material

damage'' for structures above areas where developmental mining occurs

where coal extraction will be less than or equal to 60 percent (See,

CSR 38-2-3.12.a.2.). The WVDEP argues that it would be inappropriate

for the State to assert a presumption that mining caused alleged damage

within the applicable angle of draw when the State has already made a

finding, based on evidence presented by the permittee, that coal

removal would not cause damage to structures.

The Director does not agree with the WVDEP that a presumption does

not apply. The Director finds that the Federal regulations require

application of the presumption to any structure within the applicable

angle of draw, even if a presubsidence survey was not performed for

that structure. Therefore, the Director finds that 38-2-16.2.c.3. is

less effective than the Federal regulations at 30 CFR 817.121(c)(4)(i)

to the extent that the presumption of causation of subsidence damage

only applies within the area which a pre-subsidence structural survey

is required. Therefore, the Director is requiring that Sec. 38-2-

16.2.c.3. be further amended to provide that a rebuttable presumption

of causation would exist within the applicable angle of draw,

regardless of whether or not a presubsidence survey has been conducted.

In addition, in Subparagraph c.3.B. the word ``or'' appears after

the phrase ``other factors,'' whereas in the counterpart Federal

provision at 30 CFR 817.121(c)(4)(iv) the word ``and'' appears after

the phrase ``other factors.'' Under the State provision, the

presumption that damage was caused by subsidence would be rebutted if

the evidence establishes that the damage was proximately caused by some

other factors, ``or'' was not proximately caused by subsidence. The

counterpart Federal provision provides examples of how the presumption

can be rebutted. The preamble discussion of the Federal provision

states that the permittee must

[[Page 6212]]

provide information on the effect of the underground mining, but

``[t]he proof needed to rebut the presumption will be determined on a

case-by-case basis.'' 60 FR 16740, col. 2. The Federal provision states

that the presumption would be rebutted if, for example, the evidence

establishes that the damage was proximately caused by some other

factors, and was not proximately caused by subsidence. In instances

where there is only one proximate cause, the two tests are equally

rigorous, since a finding that some other factor proximately caused the

damage necessarily includes a finding that subsidence was not the

proximate cause. In such instances, a permittee who successfully

demonstrates that subsidence did not proximately cause damage would not

be required, under either the Federal or State test, to identify the

other factor or factors that did proximately cause the damage. However,

in a case where there may not be a single proximate cause, but two or

more concurrent causes, one of which is subsidence, the State test is

less effective, because it would allow a permittee to rebut the

presumption by merely demonstrating that some other factor was a

contributing (proximate) cause. By contrast, in such cases, the Federal

example would require the permittee to demonstrate that subsidence was

not a proximate cause. In this type of case, if the permittee did not

demonstrate that subsidence was not a proximate cause, the Federal

presumption would not be rebutted, whereas the State presumption could

be. Because the State language could allow rebuttal of the presumption

without information on the effect of the underground mining in such

circumstances, the Director finds that CSR 38-2-16.2.c.3.B. is less

effective than the Federal regulations at 30 CFR 817.121(c)(4)(iv).

Consequently, the Director is requiring that the State amend CSR 38-2-

16.2.c.3.B., or otherwise amend its program, to make it clear that the

presumption of subsidence causation of damage can be rebutted only

where the permittee demonstrates that the damage was proximately caused

by some other factor or factors and was not proximately caused by

subsidence.

26. CSR 38-2-16.2.c.4.--Bonding for subsidence damage. This

provision is added to provide that when subsidence related material

damage occurs to lands, structures, or water supply, and if the

director issues violation(s), the director may extend the 90-day

abatement period to complete repairs, but the extension shall not

exceed one year from date of violation notice. To qualify for an

extension, the permittee must demonstrate, in writing, that it would be

unreasonable to complete repairs within the 90-day abatement period. If

the abatement period is extended beyond 90 days, as part of the

remedial measures, the permittee shall post an escrow bond to cover the

estimated costs of repairs.

The Federal regulations contain similar requirements regarding bond

adjustments for subsidence related damage. Unlike the Federal

regulations, the State provision does not appear to specifically

require bond adjustment when subsidence related material damage occurs

to facilities. However, the WVDEP has stated that it interprets its

definition of ``structures'' at CSR 38-2-2.116 to include

``facilities'' as used in the Federal language at 30 CFR 817.121(c)(5).

The Director accepts the State's interpretation that ``structures''

includes ``facilities.''

Also, subsection 16.2.c.4. does not specifically require an

operator, as does the Federal provision, to post additional bond in the

amount of the decrease in the value of the property if the permittee

will be compensating the owner, or in the amount of the estimated cost

to replace the water supply until the repair, compensation, or

replacement is completed. The WVDEP explained that the term

``compensation'' is not used in the State provision because

``compensation'' is a concept that must be adjudicated in West

Virginia, and the WVDEP can't make that determination before the court

does. The WVDEP further explained that under the phrase ``estimated

cost of repair'' the WVDEP requires an escrow bond that would be the

equivalent to the ``compensation'' required by the Federal regulations.

The Director disagrees with the State's conclusion that ``repair'' is

equivalent to ``compensation.'' Nevertheless, the Director finds that

the State provision is no less effective than its Federal counterpart,

because it requires the posting of an adequate bond to cover repair

costs in all instances, even where the permittee proposes to

compensate, rather than repair or replace. In this respect, the

landowner will be assured of receiving adequate funds to cover the

costs of repair or replacement of his or her structure in the event the

permittee defaults on its obligation to repair, replace or compensate.

Since repair, replacement and compensation are all acceptable means of

meeting the permittee's obligations under the State counterpart to the

Energy Policy Act of 1992, the State requirement to post a repair bond

fairly meets the purposes of the Energy Policy Act.

The State provision also provides for an extension to the 90-day

abatement period requirement provided that the permittee demonstrates

that it would be unreasonable to complete repairs within the 90-day

abatement period. The counterpart Federal requirements provide that an

extension of the 90-day abatement period may be granted for three

reasons: that subsidence is not complete; that not all subsidence

related material damage has occurred; or that not all reasonably

anticipated changes have occurred affecting the protected water supply

and, therefore it would be unreasonable to complete repairs within 90

days. In response to OSM's questions concerning this difference, the

WVDEP explained that the WVDEP interpretation is tied to the State

rules concerning Notices of Violation (NOV). Under the State system, if

repair or compensation for damage or water loss is not accomplished,

the State issues an NOV to the permittee. Any extension to the time

limit for repair or compensation must be compatible with the NOV

provisions. The State NOV provisions at Section 20.2, however, do not

specifically provide for time extensions for the reasons authorized in

the Federal regulations. Without counterparts to the Federal provisions

that allow for extension of the 90-day abatement period only under the

circumstances identified above, it appears that operators in West

Virginia may be permitted to assert additional reasons as to why the

abatement period should be extended. In this respect, the State

provision is less effective than its Federal counterpart, which allows

extensions to the abatement period under only three different

circumstances.

The Director is, therefore, requiring the State to amend its

program to provide that an extension of the 90-day abatement period may

be granted for one of only three reasons: that subsidence is not

complete; that not all subsidence related material damage has occurred;

or that not all reasonably anticipated changes have occurred affecting

the protected water supply.

The State provision also differs from the counterpart Federal

provision in that, under the State provision, the 90-day abatement

period begins with the issuance of an NOV, rather than with the date of

occurrence of subsidence-related material damage. Under the Federal

scheme, the permittee's obligation to repair, replace or compensate for

damage begins with the occurrence of that damage. If the appropriate

remedial work has not been completed within 90 days, the Federal

regulation requires the permittee to post

[[Page 6213]]

a bond, unless the abatement period is extended for one of the three

reasons discussed above. Under the State scheme, however, the

permittee's 90 day ``grace period'', wherein no bond is required,

begins only after a NOV is issued. In reality, the permittee could

enjoy a grace period of much longer than 90 days under the State

provision, since there will always be some time lapse between the

occurrence of damage and the issuance of a NOV. Therefore, the Director

finds that the State provision is less effective than its Federal

counterpart, and she is requiring the State to amend this provision, or

otherwise amend its program, to require that the 90-day period before

which additional bond must be posted begin to run from the date of

occurrence of subsidence-related material damage.

The Federal bonding and 90-day abatement period requirements at CFR

817.121(c)(5) also apply to any contamination, diminution, or

interruption of a drinking, domestic or residential water supply as a

result of underground mining activities. The State's provision,

however, only applies these requirements to subsidence-related damage

to water. In response to OSM's questions, the WVDEP stated that it

disagrees with OSM's interpretation because CFR 817.121(c)(5) only

applies to subsidence related damage. The Director disagrees with this

assessment of CFR 817.121(c)(5). CFR 817.121(c)(5) provides that ``when

contamination, diminution, or interruption to a water supply protected

under Sec. 817.41(j) occurs, the regulatory authority must require the

permittee to obtain additional performance bond * * * in the amount of

the estimated cost to replace the protected water supply if the

permittee will be replacing the water supply, until the * * *

replacement is completed.'' 30 CFR 817.41 provides the hydrologic-

balance protection standards for underground mining. Subsection

817.41(j) provides for the replacement of any drinking, domestic or

residential water supply that is contaminated, diminished or

interrupted by underground mining activities conducted after October

24, 1992, if the affected well or spring was in existence before the

date the regulatory authority received the permit application for the

activities causing the loss, contamination or interruption. Therefore,

CFR 817.121(c)(5) clearly provides for additional bond whenever

protected water supplies are contaminated, diminished or interrupted by

underground mining activities conducted after October 24, 1992. The

Director finds CSR 38-2-16.2.c.4. to be less effective than the

counterpart Federal regulations to the extent that the West Virginia

provision limits the requirement for additional bond for water supplies

contaminated, diminished, or interrupted only to such water supplies

that are so affected specifically by subsidence rather than by

underground mining operations in general. The Director is requiring the

State to further amend the West Virginia program to be no less

effective than the Federal regulations at CFR 817.121(c)(5) to require

additional bond whenever protected water supplies are contaminated,

diminished or interrupted by underground mining activities conducted

after October 24, 1992. The amount of the additional bond must be

adequate to cover the estimated cost of replacing the affected water

supply.

27. CSR 38-2-20.1.e.--Inspection frequencies. This provision is

added to provide that the permittee may request an on-site compliance

conference. It also sets forth the requirements related to such a

conference. A compliance conference shall not constitute an inspection,

within the meaning of Sec. 22-3-15 of the WVSCMRA and CSR 38-2-20.

Neither the holding of a compliance conference nor any opinion given by

an authorized representative of the director at a conference shall

affect the following: CSR 38-2-20.1.e.1.--Any rights or obligations of

the director or by the permittee with respect to any inspection, notice

of violation, or cessation order, whether prior to or subsequent to the

compliance conference; or CSR 38-2-20.1.e.2.--The validity of any

notice of violation or cessation order issued with any condition or

practice reviewed at the compliance conference.

The Federal regulations at 30 CFR 840.16 contain procedures

governing compliance conferences. The added State compliance conference

procedures at subsection 20.1.e. are the same as the corresponding

Federal procedures and are, therefore, approved.

IV. Summary and Disposition of Comments

Federal Agency Comments

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

comments were solicited from various interested Federal agencies. The

U.S. Department of the Army, Army Corps of Engineers responded and

stated that the amendments are satisfactory to the agency. The U.S.

Department of Labor, Mine Safety and Health Administration (MSHA) made

several comments, none of which, however, pertain to the amendments

being considered by OSM. Therefore, MSHA's comments are not being

addressed in this notice.

Public Comments

The following comments were received in response to the public

comment periods.

CSR 38-2-3.29--Incidental Boundary Revisions

The commenter stated that the state is expanding the limits for

IBR's even further, and is also proposing to allow coal removal under

the auspices of IBR's. In response, the Director notes that as

discussed in Finding B-10, the Director is only partially approving

this provision. The Director has not approved the proposed language

that would have authorized coal removal as the primary purpose of the

IBR. While the term incidental boundary revisions is not defined in the

Federal regulations, OSM has required that such revisions be minor in

nature, so as not to effect significant changes to the environment, or

the environmental protection information upon which permit conditions

and permit approval were based. Furthermore, the Director has

determined that to be consistent with the intent of sections 511(a)(3)

of SMCRA and 30 CFR 774.13(d) which pertain to incidental boundary

revisions, coal removal cannot be the primary purpose of an IBR.

W.Va. Code Secs. 22-3-3(u) and 22-3-28--Special Authorization for

Exceptions to the Definition of Surface Mining (Special Permits)

The commenter stated that this amendment creates whole new

categories of surface mining that will be exempt from the basic

requirements and standards of permitting. In response, the Director

notes that SMCRA at section 528(2) provides that the extraction of coal

as an incidental part of Federal, State, or local government-financed

highway or other construction under regulations established by the

regulatory authority shall not be subject to the provisions of SMCRA.

SMCRA at section 701(28) provides the definition of ``surface coal

mining operations.'' Section 701(28) provides, in part, that surface

coal mining operations means activities conducted on the surface of

lands in connection with a surface coal mine. The proposed amendments

at W.Va. Code Secs. 22-3-3(u) and 22-3-28 reflect the State's

interpretation that the proposed forms of coal removal and reclamation

are authorized under section 528(2) of SMCRA, or are not

[[Page 6214]]

encompassed by the definition of surface coal mining operations at

701(28).

As discussed in Finding A-1 and Finding A-12, the Director is not

approving Secs. 22-3-3(u)(2)(2) and 22-3-28(a), (b), and (c) concerning

coal extraction as an incidental part of development of land for

commercial, residential, industrial, or civic use.

Also as discussed in Findings A-1 and A-12, the director is

deferring a decision on the provisions at Sections 22-3-3(u)(2)(1) and

22-3-28(e) that concern government financed construction. The Director

will render a decision on the West Virginia amendments after

publication of new Federal regulations at 30 CFR 707 and 874 regarding

the financing of AML projects that involve the incidental extraction of

coal.

CSR 38-2-14.11.e., f., g. and h.--Inactive Status

The commenter stated that the proposed language further loosens the

time frames allowed for operations to remain on inactive status and

thus further clouds the ``temporary'' nature of mining (and the

negative impacts of mining on communities and resources) envisioned in

SMCRA. In response, the Director notes that the Federal regulations at

30 CFR 816/817.131 provide that surface facilities in which there are

no current operations, but in which operations are to be resumed under

an approved permit shall be effectively secured. Further, the Federal

regulations provide that temporary abandonment shall not relieve a

person of his or her obligation to comply with any provisions of the

approved permit. While the Federal regulations do not define the term

``temporary cessation,'' the regulations make it clear that operations

that are under temporary cessation must be under an approved permit,

and must comply with the provisions of the approved permit. As

discussed in Finding B-19, the Director has determined that temporarily

abandoned sites in West Virginia must be permitted, and that the

provisions of the permit must be met. Therefore, the Director found

that the amendments are not inconsistent with the Federal requirements

and can be approved.

CSR 38-2-14.15.c and .d--Contemporaneous Reclamation Standards

The commenter stated that approving the provisions would make

inspecting even more difficult, and bonding will present even more

confusion than currently exists. The commenter also stated that

approval of the provisions would mean that the preferred mining methods

are dictating the limits of SMCRA, rather than SMCRA controlling the

limits of mining and its impacts. In response, the Director notes that

it is essential to consider the methods of mining when developing the

mining and reclamation plans, and that the type of mining will have

direct impact on what is perceived as contemporaneous reclamation. For

example, while contour mining can be conducted in a way that active

coal removal pits are small and quickly backfilled with spoil removed

to create an adjacent pit, mountaintop removal operations involving

multiple-seam mining may disturb large areas for longer periods.

However, essential to both operations is the need to control water and

sediment movement to prevent soil loss and water pollution. The

proposed amendments, while accommodating mountaintop removal mining in

the contemporaneous reclamation standards, do not reduce or eliminate

the performance standards for controlling erosion and sedimentation and

protecting water. As stated above in Finding B-20, the Federal time and

distance requirements for contemporaneous reclamation have been

suspended. However, the amendments appear reasonable when the type of

mining operations are considered, and the Director has concluded that

the amendments are not inconsistent with the concept of contemporaneous

reclamation at 30 CFR 816/817.100.

W.Va. Code 22-3-3(z)--Replacement of Water Supply

The commenter stated that the proposed definition of ``replacement

of water supply'' is not acceptable for the following reasons. First,

the definition omits reference to premining quality, quantity, and

cost. Concerning cost, the commenter stated that under the proposed

amendments, a person could end up with a water supply that costs them

much more than their original water supply that was damaged by mining.

In addition, the commenter asserted that the same specific protections

are missing when the word ``premining'' is not included before the

words ``quality and quantity.''

Second, the commenter asserted that the definition lacks any

reference to replacement requirements 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. In those cases, the commenter said,

according to OSM final rules of March 31, 1995, a demonstration is

required to show that a suitable alternative water source is available

and could feasibly be developed. Written concurrence from the water

supply owner is also required.

In response, the Director agrees with the commenter that the

proposed definition of ``replacement of water supply'' omits reference

to ``premining'' water quality and quantity. The WVDEP has clarified

that the word ``equivalent'' was used to clarify that water replacement

would involve replacing the quality and quantity of water in use prior

to the permitted mining activity. The WVDEP further stated that

replacement requires a supply that is not only equivalent in quantity

and quality, but also in cost. A stated above in Finding A-4, the

Director found that the proposed definition, if implemented as

explained by the WVDEP, is not inconsistent with and is no less

effective than the counterpart Federal definition at 30 CFR 701.5.

Concerning the commenter's second comment, the Director agrees with

the commenter that the proposed definition of ``replacement of water

supply'' lacks a counterpart to provision (b) of the Federal definition

of ``replacement of water supply'' at 30 CFR 701.5. As stated above in

Finding A-4, the Director is requiring that the State further amend the

West Virginia program to add such a counterpart.

CSR 38-2-16.2.c.--Material Damage

The commenter stated that possible interpretations of the word

``significant'' are troublesome at best. The commenter noted that the

proposed definition of ``material damage'' reflects the minimum as set

out by OSM in its final rule of March 31, 1995. The commenter also

stated that the use of ``reasonably foreseeable uses'', rather than the

more optimistic and far more protective ``future beneficial uses'', as

incorporated in the State's Groundwater Act, is also troublesome. The

Director disagrees with the commenter. As stated above in Finding B-23,

except for the inadvertent omissions of words, the State's definition

of ``material damage'' is substantively identical to the counterpart

Federal definition at 30 CFR 701.5.

CSR 38-2-3.12--Subsidence Control Plan

The commenter stated that proposed provisions concerning subsidence

control plans, presubsidence surveys, presumption of causation, repair

of damage, etc. offer less protection than OSM requires and should be

examined closely by OSM. The commenter is referred to Findings B-7, B-

8, B-25 and B-26 wherein the Director found that

[[Page 6215]]

not all of the provisions contained in 38-2-3.12 and 38-2-16.2.c. could

be approved. Moreover, the Director is requiring the State to amend its

program to correct the deficiencies found in subsections 3.12 and

16.2.c.

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.). OSM

requested EPA concurrence on June 6, 1997 (Administrative Record Number

WV-1059). Pursuant to 30 CFR 732.17(h)(11)(i), OSM solicited comments

from the EPA on the proposed amendment on June 5, 1997 (Administrative

Record Number WV-1060)

EPA responded to OSM's request for comments and concurrence by

letter dated October 23, 1998 (Administrative Record Number WV-1108).

EPA has concerns about the proposed provision at Sec. 22-3-13(c)(3) of

the WVSCMRA that would allow an exemption for mountaintop removal

operations from restoring mined land to its approximate original

contour (AOC) if the post-mining land use is fish and wildlife habitat

and recreation lands. EPA stated that the proposed revision would allow

excess overburden to be disposed in valley fills rather than on top of

the mined area to achieve AOC. A use designation as fish and wildlife

habitat and recreation lands would not appear to be necessary if the

goal was just to provide wildlife habitat and recreation land, rather

than avoid the expense of placing overburden back on top of mined

areas. It is very likely, EPA stated, that wildlife habitat areas would

occur naturally on post-mining lands, including areas restored to the

approximate original contour, as a result of appropriate reclamation

without any special use designation. In addition, it appears that the

proposed designation as wildlife habitat and recreation lands is not

intended for lands to be used by the public since an exemption for

``public use'' is already in the State statute. EPA said that its

concern is that disposal of excess overburden in valley fills may harm

aquatic life in headwater streams and possibly downstream reaches.

EPA noted OSM's intention to defer action on proposed revisions to

Sec. 22-3-13(c)(3) of the WVSCMRA regarding an exemption to approximate

original contour for mountaintop removal operations until a later date

and that the comment period will be reopened on this provision. With

this understanding, the EPA concurred with the proposed WVDEP revisions

under the condition that the EPA be given an opportunity to concur or

not concur with the proposed amendment to Sec. 22-3-13(c)(3) of the

WVSCMRA.

V. Director's Decision

Based on the findings above the Director is approving West

Virginia's proposed amendment submitted on April 28, 1997, except as

noted below.

Sec. 22-3-3(u)(2) Amendments to the definition of ``surface mine''

are approved with the following exceptions: (1) The provision

concerning coal extraction authorized pursuant to a government financed

reclamation contract is deferred. (2) The provision concerning coal

extraction incidental to development of land for commercial,

residential, or civic use is not approved. (3) The provision concerning

the reclamation of abandoned or forfeited mines by no-cost reclamation

contracts is approved, except for the disposal of excess spoil on

abandoned and forfeited sites pursuant to ``no cost'' contracts, which

will be considered in another rulemaking.

Sec. 22-3-3(y) is approved, but the portion pertaining to bond

forfeitures is approved only to the extent that AML funds may be used

to reclaim sites where a bond or deposit has been forfeited only if the

bond or deposit is insufficient to provide for adequate reclamation or

abatement.

Sec. 22-3-3(z) Amendments to the definition of ``Replacement of

water supply'' are approved with the understanding that the definition

will be implemented as explained above in Finding A-4.

In addition, the required amendment, at 30 CFR 948.16(sss), remains

in effect.

A decision on Sec. 22-3-13(c)(3) is deferred.

Sec. 22-3-17(b) is approved, but because the State's proposed

reinstatement provisions do not reference the transfer, assignment or

sale requirements of Section 22-3-19(d) of WVSCMRA or CSR 38-2-3.25,

and because the WVDEP acknowledges that it has not fully developed its

reinstatement procedures, the State cannot implement the proposed

provisions until its program is further amended. Therefore, the

Director is requiring that the State further amend the West Virginia

program to adopt reinstatement procedures similar to its transfer

requirements contained in CSR 38-2-3.25. The procedures must allow for

public participation, require that the revoked permit meet the

appropriate permitting requirements of the WVSCMRA, and require that

the mining and reclamation plan be modified to address any outstanding

violations for any permit reinstated pursuant to Sec. 22-3-17(b) of the

WVSCMRA. However, in no event can a reinstated permit be approved in

advance of the close of the public comment period, and the party

seeking reinstatement must post a performance bond that will be in

effect before, during, and after the reinstatement of the revoked

permit.

The provisions in Section 22-3-28 (a), (b) and (c) concerning coal

mining incident to the development of land for commercial, residential,

industrial or civic use are not approved.

A decision on section 22-3-28(e) is deferred.

Sec. 22-3-28(f) is approved, but may be implemented only with

respect to those portions of sec. 22-3-28 that are approved in this

rulemaking.

38-2-2.43 Definition of ``downslope.'' The amendment to the

definition of ``downslope'' is not approved.

38-2-2.95 Definition of ``prospecting.'' The Director is not

approving the addition of the word ``substantial'' to modify the word

``disturbance'' in the definition of ``prospecting.''

38-2-2.120 Definition of ``substantially disturb.'' The director is

approving the amendment to this definition to the extent that the

phrase ``land and water resources'' is construed to mean ``land or

water resources.'' The Director is requiring that West Virginia amend

its program by changing the phrase ``land and water resources'' to

``land or water resources'', in the definition of ``substantially

disturb'', or by otherwise making it clear that the term

``substantially disturb'', for the purposes of prospecting, includes a

significant impact on either land or water resources.

38-2-3.12.a.1. The phrase ``within an angle of draw of at least 30-

degrees'' at Sec. 38-2-3.12.a.1 is not approved. In addition, the

Director is requiring that the State amend its program to require that

the map of all lands, structures, and drinking, domestic and

residential water supplies which may be materially damaged by

subsidence show the type and location of all such lands, structures,

and drinking, domestic and residential water supplies. Finally, the

Director is requiring that the State amend its program to require that

the permit application include a narrative indicating whether

subsidence, if it occurred, could cause material damage to or diminish

the value or reasonably foreseeable use of such structures or

[[Page 6216]]

renewable resource lands or could contaminate, diminish, or interrupt

drinking, domestic, or residential water supplies.

38-2-3.12.a.1., pertaining to alternative, site-specific angles of

draw, is approved with the understanding that such an alternative angle

of draw would be justified based on a site-specific geotechnical

analysis of the potential surface impacts of the mining operation. In

addition, the Director is requiring that the State further amend the

West Virginia program to clarify that approval of any alternative angle

of draw will be based on a written finding that the proposed angle of

draw has a more reasonable basis than the 30-degree angle of draw based

on site-specific geotechnical analysis of the potential surface impacts

of the proposed mining operation.

38-2-3.12.a.2. is approved except that the phrase ``within the area

encompassed by the applicable angle of draw'' as it applies to water

supply surveys is not approved. The definition of ``non-commercial

building'' is not approved. The Director is requiring that the State

amend the definition of ``non-commercial building'' at 38-2-3.12.a.2.,

or otherwise amend the West Virginia program, to clarify that ``non-

commercial building'' includes such buildings used on a regular or

temporary basis. In addition, the Director is requiring that the West

Virginia program be further amended to be no less effective than 30 CFR

784.20(a)(3) by requiring a pre-subsidence survey, without limitation

by an angle of draw, of the quantity and quality of all drinking,

domestic, and residential water supplies within the permit area and

adjacent area that could be contaminated, diminished, or interrupted by

subsidence.

38-2-3.12.a.2.A. and .B. are not approved.

The Director is also requiring that West Virginia amend CSR 38-2-

3.12.a.2., or otherwise amend its program, to require that the permit

applicant pay for any technical assessment or engineering evaluation

used to determine the premining condition or value of non-commercial

buildings or occupied residential dwellings or structures related

thereto and the quality of drinking, domestic or residential water

supplies, and to require that the applicant provide copies of any

technical assessment or engineering evaluation to the property owner

and to the regulatory authority.

38-2-3.29.a. is approved except the phrase ``the only practical

alternative to recovery of unanticipated reserves or'' is not approved.

38-2-8.2.e. is approved with the understanding that the design of

the windrowing will be reviewed by a State wildlife biologist as part

of the wildlife enhancement plan for a postmining land use containing

wildlife habitat.

38-2-16.2.c. is approved with the understanding that the State will

correct the inadvertent omission of words in future rulemaking, and

will interpret the current definition as if the inadvertently omitted

words were present; and that the State will consider its definition of

``structure'' at 38-3-2.116 to include ``facilities'' as used in the

Federal sense.

38-2-16.2.c.3. is less effective than the Federal regulations at 30

CFR 817.121(c)(4)(i) to the extent that the presumption of causation of

subsidence damage only applies within the area which a pre-subsidence

structural survey is required. The Director is requiring that Sec. 38-

2-16.2.c.3. be further amended to provide that a rebuttable presumption

of causation would exist within the applicable angle of draw,

regardless of whether or not a presubsidence survey has been conducted.

38-2-16.2.c.3.B. The Director is requiring the State to further

amend CSR 38-2-16.2.c.3.B, or otherwise amend its program, to make it

clear that the presumption of subsidence causation of damage can be

rebutted only where the permittee demonstrates that the damage was

proximately caused by some other factor or factors and was not

proximately caused by subsidence.

CSR 38-2-16.2.c.4 is approved except: To the extent that it does

not limit extensions of the 90-day abatement period under circumstances

set forth in the Federal regulations at 30 CFR 817.121(c)(5); to the

extent that it limits the requirement for additional bond for water

supplies contaminated, diminished, or interrupted only to such water

supplies that are so affected specifically by subsidence rather than by

underground mining operations in general; and, to the extent that it

provides that the 90-day period before which additional bond must be

posted does not begin to run until an NOV is issued. In addition, the

Director is requiring that the State amend 38-2-16.2.c.4., or otherwise

amend the West Virginia program, to be no less effective than the

Federal regulations at 30 CFR 817.121(c)(5), which provide that an

extension of the 90-day abatement period may be granted for one of only

three reasons: that subsidence is not complete; that not all subsidence

related material damage has occurred; or that not all reasonably

anticipated changes have occurred affecting the protected water supply.

The Director is also requiring that the State amend 38-2-16.2.c.4., or

otherwise amend the West Virginia program, to be no less effective than

the Federal regulations at 30 CFR 817.121(c)(5) by requiring additional

bond whenever protected water supplies are contaminated, diminished or

interrupted by underground mining operations conducted after October

24, 1992. The amount of the additional bond must be adequate to cover

the estimated cost of replacing the affected water supply. Finally, the

Director is requiring that the State amend 38-2-16.2.c.4., or otherwise

amend the West Virginia program, to require that the 90-day period

before which additional bond must be posted begin to run from the date

of occurrence of subsidence-related material damage.

The Federal regulations at 30 CFR 948 codifying decisions

concerning the West Virginia program are being amended to implement

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

expedite the State program amendment process and to encourage States to

bring their programs into conformity with the Federal standards without

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

SMCRA.

VI. Procedural Determinations

Executive Order 12866

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

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

Review).

Executive Order 12988

The Department of the Interior has conducted the reviews required

by section 3 of Executive Order 12988 (Civil Justice Reform) and has

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

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

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

State regulatory programs and program amendments since each such

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

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

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

regulatory programs and program amendments submitted by the States must

be based solely on a determination of whether the submittal is

consistent with SMCRA and its implementing Federal regulations and

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

been met.

[[Page 6217]]

National Environmental Policy Act

No environmental impact statement is required for this rule since

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

decisions on proposed State regulatory program provisions do not

constitute major Federal actions within the meaning of section

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

4332(2)(C)).

Paperwork Reduction Act

This rule does not contain information collection requirements that

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

3507 et seq.).

Regulatory Flexibility Act

The Department of the Interior has determined that this rule will

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

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

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

corresponding Federal regulations for which an economic analysis was

prepared and certification made that such regulations would not have a

significant economic effect upon a substantial number of small

entities. Accordingly, this rule will ensure that existing requirements

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

making the determination as to whether this rule would have a

significant economic impact, the Department relied upon the data and

assumptions for the corresponding Federal regulations.

Unfunded Mandates

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

given year on any governmental entity or the private sector.

List of Subjects in 30 CFR Part 948

Intergovernmental relations, Surface mining, Underground mining.

Dated: January 27, 1999.

Michael K. Robinson,

Acting Regional Director, Appalachian Regional Coordinating Center.

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

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

below:

PART 948--WEST VIRGINIA

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

follows:

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

2. Section 948.15 is amended in the table by adding a new entry in

chronological order by ``Date of Final Publication'' to read as

follows:

Sec. 948.15 Approval of West Virginia regulatory program amendments.

* * * * *

----------------------------------------------------------------------------------------------------------------

Date of final

Original amendment submission date publication Citation/description

----------------------------------------------------------------------------------------------------------------

* * * * * *

*

April 28, 1997....................... February 9, 1999....... W.Va. Code 22-3 Sections 3(u)(2)(1) (decision

deferred), (2)(not approved), (3); 3(x),

(y)(partial approval), (z)(partial approval);

13(b)(20), (22), (c)(3)(decision deferred);

15(h); 17(b); 18(c), (f); 28(a-c) (not

approved), (d), (e)(decision deferred), (f). WV

Regulations CSR 38-2 Sections 2.4, 2.43 (not

approved), 2.95 (not approved), 2.108, 2.120;

3.2.e; 3.12.a.1 (partial approval), .2 (partial

approval); 3.14.b.7 & .8 deleted, .12.E, .15.B

deleted, .13.B; 3.29.a (partial approval);

3.35; 5.5.c; 6.5.a; 8.2.e; 9.2.i.2; 9.3.h.1,

.2; 14.11.e, .f, .g, .h; 14.15.b.6.A, .c, .d;

16.2.c (partial approval), .2, .3 (partial

approval), .4 (partial approval); 20.1.e.

----------------------------------------------------------------------------------------------------------------

3. Section 948.16 is amended by adding new paragraphs (www through

hhhh) to read as follows:

Sec. 948.16 Required regulatory program amendments.

* * * * *

(www) By April 12, 1999, West Virginia must submit either a

proposed amendment or a description of an amendment to be proposed,

together with a timetable for adoption, to adopt reinstatement

procedures similar to its transfer requirements contained in CSR 38-2-

3.25 and to allow for public participation, require that the revoked

permit meet the appropriate permitting requirements of the WVSCMRA, and

require that the mining and reclamation plan be modified to address any

outstanding violations for any permit reinstated pursuant to Sec. 22-3-

17(b) of the WVSCMRA.

(xxx) By April 12, 1999, West Virginia must submit either a

proposed amendment or a description of an amendment to be proposed,

together with a timetable for adoption, to require that West Virginia

amend its program by changing the phrase ``land and water resources''

to ``land or water resources'', in the definition of ``substantially

disturb'' at 38-2-2.120, or by otherwise making it clear that the term

``substantially disturb'', for the purposes of prospecting, includes a

significant impact on either land or water resources.

(yyy) By April 12, 1999, West Virginia must submit either a

proposed amendment or a description of an amendment to be proposed,

together with a timetable for adoption to revise 38-2-3.12.a.1., or

otherwise amend the West Virginia program to clarify that approval of

any alternative angle of draw will be based on a written finding that

the proposed angle of draw has a more reasonable basis than the 30-

degree angle of draw based on site-specific geotechnical analysis of

the potential impacts of the proposed mining operation.

(zzz) By April 12, 1999, West Virginia must submit either a

proposed amendment or a description of an amendment to be proposed,

together with a timetable for adoption to revise 38-2-3.12.a.1., or

otherwise amend the West Virginia program to require that the map of

all lands, structures, and drinking, domestic and residential water

supplies which may be materially damaged by subsidence show the type

and location of all such lands, structures, and drinking, domestic and

residential water supplies within the permit and adjacent areas, and to

require that the permit application include a narrative indicating

whether subsidence, if it occurred, could cause material damage to or

diminish the value or reasonably foreseeable use of such structures or

renewable resource lands or could contaminate, diminish, or interrupt

drinking, domestic, or residential water supplies.

(aaaa) By April 12, 1999, West Virginia must submit either a

proposed amendment or a description of an amendment to be proposed,

together with a timetable for adoption to revise

[[Page 6218]]

CSR 38-2-3.12.a.2., or otherwise amend the West Virginia program to

require that the water supply survey required by CSR 38-2-3.12.a.2.

include all drinking, domestic, and residential water supplies within

the permit area and adjacent area, without limitation by an angle of

draw, that could be contaminated, diminished, or interrupted by

subsidence.

(bbbb) By April 12, 1999, West Virginia must submit either a

proposed amendment or a description of an amendment to be proposed,

together with a timetable for adoption to revise 38-2-3.12.a.2., or

otherwise amend the West Virginia program to require that the permit

applicant pay for any technical assessment or engineering evaluation

used to determine the premining condition or value of non-commercial

buildings or occupied residential dwellings or structures related

thereto and the quality of drinking, domestic or residential water

supplies, and to require that the applicant provide copies of any

technical assessment or engineering evaluation to the property owner

and to the regulatory authority.

(cccc) By April 12, 1999, West Virginia must submit either a

proposed amendment or a description of an amendment to be proposed,

together with a timetable for adoption to amend the definition of

``non-commercial building'' at 38-2-3.12.a.2. to clarify that ``non-

commercial building'' includes such buildings used on a regular or

temporary basis.

(dddd) By April 12, 1999, West Virginia must submit either a

proposed amendment or a description of an amendment to be proposed,

together with a timetable for adoption to amend its regulations at CSR

38-2-16.2.c.3., or otherwise amend the West Virginia program, to

provide that a rebuttable presumption of causation would exist within

the applicable angle of draw, regardless of whether or not a

presubsidence survey has been conducted.

(eeee) By April 12, 1999, West Virginia must submit either a

proposed amendment or a description of an amendment to be proposed,

together with a timetable for adoption to amend its regulations at CSR

38-2-16.2.c.3.B., or otherwise amend its program, to make it clear that

the presumption of causation of damage by subsidence can be rebutted by

evidence that the damage was proximately caused by some other factors

and was not proximately caused by subsidence.

(ffff) By April 12, 1999, West Virginia must submit either a

proposed amendment or a description of an amendment to be proposed,

together with a timetable for adoption to amend 38-2-16.2.c.4., or

otherwise amend the West Virginia program, to be no less effective than

the Federal regulations at 30 CFR 817.121(c)(5), which provide that an

extension of the 90-day abatement period may be granted for one of only

three reasons: that subsidence is not complete; that not all subsidence

related material damage has occurred; or that not all reasonably

anticipated changes have occurred affecting the protected water supply.

(gggg) By April 12, 1999, West Virginia must submit either a

proposed amendment or a description of an amendment to be proposed,

together with a timetable for adoption to amend 38-2-16.2.c.4., or to

otherwise amend the West Virginia program, to be no less effective than

the Federal regulations at 30 CFR 817.121(c)(5) by requiring additional

bond whenever protected water supplies are contaminated, diminished or

interrupted by underground mining operations conducted after October

24, 1992. The amount of the additional bond must be adequate to cover

the estimated cost of replacing the affected water supply.

(hhhh) By April 12, 1999, West Virginia must submit either a

proposed amendment or a description of an amendment to be proposed,

together with a timetable for adoption to amend CSR 38-2-16.2.c.4., or

to otherwise amend the West Virginia program, to be no less effective

than the Federal regulations at 30 CFR 817.121(c)(5), by requiring that

the 90-day period before which additional bond must be posted begin to

run from the date of occurrence of subsidence-related material damage.

[FR Doc. 99-3128 Filed 2-8-99; 8:45 am]

BILLING CODE 4310-05-P