[Federal Register Volume 61, Number 35 (Wednesday, February 21, 1996)]
[Rules and Regulations]
[Pages 6511-6537]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-3413]
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DEPARTMENT OF THE INTERIOR
30 CFR Part 948
West Virginia Regulatory Program
AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM),
Interior.
ACTION: Final rule; Approval of amendment.
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SUMMARY: OSM is approving with certain exceptions an amendment to the
West Virginia permanent regulatory program under the Surface Mining
Control and Reclamation Act of 1977 (SMCRA). The amendment contains
revisions to the West Virginia Surface Coal Mining and Reclamation Act
(WVSCMRA) and the West Virginia Surface Mining Reclamation Regulations.
The amendment is intended to make the West Virginia program consistent
with SMCRA and the corresponding Federal regulations. Additional
amendments will be required to bring the West Virginia program into
full compliance with SMCRA.
The statutory revisions pertain to reorganization of the State
regulatory authority, extension of the State Abandoned Mine Lands and
Reclamation Act, definitions, surface mine reclamation inspector
qualifications, approval to remove more than 250 tons of coal during
prospecting, permit transfers, permit fees, premium payments for the
Workers' Compensation Fund, Small Operator Assistance Program (SOAP),
hydrologic protection, blasting schedules, preblast surveys,
termination of underground mining permits, excess spoil fills,
variances from approximate original contour, citizen complaint
investigations, issuance of notices of violation, abatement times for
notices of violation, civil penalty assessments for cessation orders
that are abated within twenty-four hours, permit suspension or
revocation, temporary relief, burden of proof, disclosure of ownership
and control information, reinstatement of right to mine, permit renewal
requirements, extensions to permitted areas, surface mining activities
not subject to the Act, National Pollutant Discharge Elimination system
(NPDES) permitting requirements, removal of
[[Page 6512]]
coal from existing waste piles, and environmental boards.
The revisions to State regulations concern applicability,
definitions, ownership and control information, maps, operation plan,
excess spoil disposal, new and existing structures, subsidence control
plan, removal of abandoned coal waste piles, approved person, fish and
wildlife resources, geologic information, transfer, assignment or sale
of a permit, permit renewals and revisions, incidental boundary
revisions, variances exemption for government financed highway or other
construction, permit issuance, permit conditions, improvidently issued
permits, haulroads, transportation and support facilities, intermittent
or perennial streams, design, construction, certification, inspection
and abandonment of sediment control and other water retention
structures, permanent impoundments, blasting, fish and wildlife,
revegetation, insurance, notice of intent to prospect, hydrologic
balance, steep slope mining, inactive status approval, variance from
approximate original contour, excess spoil disposal, contemporaneous
reclamation, control of fugitive dust, utility installations, disposal
of noncoal waste, backfilling and regrading underground mines,
subsidence control, small operator assistance program, citizen actions,
inspection frequencies, notices of violation, show cause orders, civil
penalty determinations, civil penalty assessment procedures, civil
penalty assessment rates, coal refuse certification, compaction
requirements for coal refuse areas, design, construction and
maintenance requirements for coal refuse impoundments, inspection,
examination and reporting requirements for coal refuse impoundments,
training and certification of blasters, and abandoned mine lands
reclamation.
EFFECTIVE DATE: February 21, 1996. Approval dates of regulatory program
amendments are listed in Sec. 948.15(p).
FOR FURTHER INFORMATION CONTACT:
Mr. James C. Blankenship Jr., Director, Charleston Field Office, Office
of Surface Mining Reclamation and Enforcement, 1027 Virginia Street
East, Charleston, WV 25301, Telephone (304) 347-7158.
SUPPLEMENTARY INFORMATION:
I. Background
II. Submission of the Amendment
III. Director's Findings
IV. Summary and Disposition of Comments
V. Director's Decision
VI. Procedural Determinations
I. Background
SMCRA was passed in 1977 to address environmental and safety
problems associated with coal mining. Under SMCRA, OSM works with
States to ensure that coal mines are operated in a manner that protects
citizens and the environment during mining, that the land is restored
to beneficial use following mining, and that the effects of past mining
at abandoned coal mines are mitigated.
Many coal-producing States, including West Virginia, have sought
and obtained approval from the Secretary of the Interior to carry out
SMCRA's requirements with their borders. In becoming the primary
enforcers of SMCRA, these ``primary'' States accept a shared
responsibility with OSM to achieve the goals of the Act. Such States
join with OSM in a shared commitment to the protection of citizens from
abusive mining practices, to be responsive to their concerns, and to
allow them full access to information needed to evaluate the effects of
mining on their health, safety, general welfare, and property. This
commitment also recognizes the need for clear, fair, and consistently
applied policies that are not unnecessarily burdensome to the coal
industry--producers of an important source of our Nation's energy.
Under SMCRA, OSM sets minimum regulatory and reclamation standards.
Each primacy State ensures that coal mines are operated and reclaimed
in accordance with the standards in its approved State program. The
States serve as the front-line authorities for implementation and
enforcement of SMCRA, while OSM maintains a State performance
evaluation role and provides funding and technical assistance to States
to carry out their approved programs. OSM also is responsible for
taking direct enforcement action in a primacy State, if needed, to
protect the public in cases of imminent harm or, following appropriate
notice to the State, when a State acts in an arbitrary and capricious
manner in not taking needed enforcement actions required under its
approved regulatory program.
Currently, there are 24 primacy states that administer and enforce
regulatory programs under SMCRA. These states may amend their programs,
with OSM approval, at any time so long as they remain no less effective
than Federal regulatory requirements. In addition, whenever SMCRA or
implementing Federal regulations are revised, OSM is required to notify
the States of the changes to that they can revise their programs
accordingly to remain no less effective than the Federal requirements.
Background information on the West Virginia program, including the
Secretary's findings, the disposition of comments, and the conditions
of approval can be found in the January 21, 1981, Federal Register (46
FR 5915). Subsequent actions concerning the conditions of approval and
program amendments can be found at 30 CFR 948.10, 948.12, 948.13,
948.15, and 948.16.
II. Submission of the Amendment
In a series of three letters dated June 28, 1993, and July 30, 1993
(Administrative Record Nos. WV-888, WV-889 and WV-893), the West
Virginia Division of Environmental Protection (WVDEP) submitted an
amendment to its approved permanent regulatory program that included
numerous revisions to the West Virginia Surface Coal Mining and
Reclamation Act (referred to herein as ``the Act'', WVSCMRA Sec. 22A-3-
1 et seq.) and the West Virginia Surface Mining Reclamation Regulations
(CSR Sec. 38-2-1 et seq.). OSM approved the proposed revisions on
durable rock fills on August 16, 1996, (60 FR 42437-42443) and the
proposed revisions on bonding on October 4, 1995, (60 FR 51900-51918).
The remaining proposed revisions are the subject of this notice.
The statutory revisions pertain to reorganization of the State
regulatory authority, extension of the State Abandoned Mine Lands and
Reclamation Act, definitions, surface mine reclamation inspector
qualifications, approval to remove more than 250 tons of coal during
prospecting, permit transfers, permit fees, premium payments for the
Workers' Compensation Fund, SOAP, hydrologic protection, blasting
schedules, preblast surveys, termination of underground mining permits,
excess spoil fills, variances from approximate original contour,
citizen complaint investigations, issuance of notices of violation,
abatement times for notices of violation, civil penalty assessments for
cessation orders that are abated within twenty-four hours, permit
suspension or revocation, temporary relief, burden of proof, disclosure
of ownership and control information, reinstatement of right to mine,
permit renewal requirements, extensions to permitted areas, surface
mining activities not subject to the Act, National Pollutant Discharge
Elimination System (NPDES) permitting requirements, removal of coal
from existing waste piles, and environmental boards.
[[Page 6513]]
The revisions to State regulations concern applicability,
definitions, ownership and control information, maps, operation plan,
excess spoil disposal, new and existing structures, subsidence control
plan, removal of abandoned coal waste piles, approved person, fish and
wildlife resources, geologic information, transfer, assignment or sale
of a permit, permit revisions and renewals, incidental boundary
revisions, permit conditions, improvidently issued permits, exemptions
for government financed highway or other construction variances, permit
issuance, haulroads, transportation and support facilities,
intermittent or perennial streams, design, construction, certification,
inspection and abandonment of sediment control and other water
retention structures, permanent impoundments, blasting, fish and
wildlife, revegetation, insurance, notice of intent to prospect,
hydrologic balance, steep slope mining, inactive status approval,
variance from approximate original contour, excess spoil disposal,
contemporaneous reclamation, control of fugitive dust, utility
installations disposal of coal mine waste, backfilling and regrading
underground mines, subsidence control, small operator assistance
program, citizen actions, inspection frequencies, notices of violation,
show cause orders, civil penalty determinations, civil penalty
assessment procedures, civil penalty assessment rates, coal refuse
certification, compaction requirements for coal refuse areas, design,
construction and maintenance requirements for coal refuse impoundments,
and inspection, examination and reporting requirements for coal refuse
impoundments, training and certification of blasters, and abandoned
mine lands regulation.
OSM announced receipt of the proposed amendment in the August 12,
1993, Federal Register (58 FR 42903) and invited public comment on its
adequacy. Following this initial comment period, WVDEP revised the
amendment on August 18, 1994, and September 1, 1994, and May 16, 1995
(Administrative Record Nos. WV-933, WV-937, and WV-979B). OSM reopened
the comment period on August 31, 1994 (59 FR 44953), September 29, 1994
(59 FR 49619), and July 5, 1995 (60 FR 34934), and held public
meetings/hearings in Charleston, West Virginia on September 7, 1993,
October 27, 1994, and May 30, 1995.
III. Director's Findings
Only those revisions of particular interest are discussed below.
Any revisions not specifically discussed below are found to be no less
stringent than SMCRA and no less effective than the Federal
regulations. Revisions not discussed below contain language similar to
the corresponding Federal regulations, concern nonsubstantive wording
changes, revise cross-references and paragraph notations to reflect
organizational changes resulting from this amendment, or concern
program provisions for which there is no Federal counterpart and which
do not adversely affect other aspects of the West Virginia program.
A. Proposed Revisions to the West Virginia Code (Including numerous
revisions to the West Virginia Surface Coal Mining and Reclamation Act
(WVSCMRA)
1. Sec. 22-1-4 Through 8 Division of Environmental Protection
The State has reorganized the Division of Environmental Protection
under the Bureau of the Environment and abolished the Department of
Commerce, Labor and Environmental Resources under West Virginia House
Bill (H.B. 4030). Within the Bureau of Environment, Division of
Environmental Protection, the State established the Office of Abandoned
Mine Lands and Reclamation, and the Office of Mining and Reclamation.
The Office of Abandoned Mine Lands and Reclamation is given the
authority to administer and enforce the State's Abandoned Mine Lands
and Reclamation Act. The Office of Mining and Reclamation is given the
authority to administer and enforce the State's Surface Coal Mining and
Reclamation Act (under Sec. 22-1-7). The director is authorized to
appoint a Chief of each office who is accountable and responsible for
the performance of the duties, functions, and services of his or her
office (Sec. 22-1-8(a)). The provisions also authorize the director of
the division of environmental protection to employ legal counsel (H.B.
2523) (Sec. 22-1-6(d)(7)). The Director finds that the State regulatory
authority continues to have authority under State laws to implement,
administer, and enforce its State program. He is therefore approving
the proposed revisions to WVSCMRA Sec. 22-1-4 through 8. The Director
is also taking this opportunity to remove the required amendment at 30
CFR 948.16(c)(1), since it refers to the creation of the Division of
Mines and Minerals, which is now an obsolete designation.
2. Sec. 22-2 Abandoned Mine Lands and Reclamation Act
West Virginia proposes to revise its statute at section 22-2-2 to
reflect the extension of the abandoned land reclamation program and the
collection of fees which support it to September 30, 2004. The Director
finds that this revision is substantively identical to and therefore no
less stringent than section 402(b) of SMCRA.
West Virginia is also amending Sec. 22-2-4 to change the reference
to Public Law 95-87 to read ``Surface Mining Control and Reclamation
Act'', to change the reference to subdivision (3) to read subsection
(c), to change the reference to section 404 of Public Law 95-87 to read
section 402 of the Surface Mining Control and Reclamation Act, and to
delete references to ``administrative and personnel expenses'' for the
purposes of clarification. The Director finds that these revisions are
consistent with the Abandoned Mine Land Reclamation Act of 1990 and
satisfy 30 CFR 948.26(a), which is hereby removed.
The State is revising paragraph (c) by changing the ending date for
abandoned mine land fund eligibility for surface mining sites where the
surety became insolvent. The ending date for eligibility was changed
from October 1, 1991, to November 5, 1990. Paragraph (c) is also
revised by changing the reference to Public Law 95-87 to the Federal
Surface Mining and Reclamation Act of 1977, as amended. The Director
finds that the proposal is substantively identical to and therefore no
less stringent than section 402(g) of SMCRA.
3. Sec. 22-3-3 Definitions
a. Operator: The WVDEP proposes to define operator to mean any
person who is granted or who should obtain a permit to engage in any
activity covered by the WVSCMRA and any rule promulgated thereunder and
any person who engages in surface mining or surface mining and
reclamation operations, or both. The proposed definition states that
the term operator shall also be construed in a manner consistent with
the Federal program pursuant to SMCRA, as amended.
Section 701 of SMCRA defines operator to mean any person,
partnership, or corporation engaged in coal mining who removes or
intends to remove more than 250 tons of coal from the earth by coal
mining within 12 consecutive calendar months in any one location. In
support of the proposed definition the State submitted a policy
statement stating that WVDEP would interpret ``operator'' to include
all
[[Page 6514]]
persons who engage in surface mining or prospecting activities. This
policy statement was accompanied by a legal opinion from the General
Council for WVDEP which stated that the term ``operator'' as defined in
the WVSCMRA applies to a person who intends to prospect or engage in
coal exploration (Administrative Record No. WV-932). The Director
therefore finds that the proposed definition of operator at Sec. 22-3-3
of the WVSCMRA is no less stringent than the definition at section 701
of SMCRA and he is approving it.
b. Surface mine, surface mining or surface mining operations: The
WVDEP proposes to revise Sec. 22-3-3(u)(1) by inserting a semicolon
between ``reclamation'' and ``in-situ'' and a comma between
``cleaning'' and ``concentrating''. Also, at subsection 3(u)(2), the
exemption for permanent facilities not within the area being mined and
not directly involved in the excavation, storage, or processing of coal
has been removed from the definition. The Director finds that the
revisions to the definition of ``surface mining operation'', which
remove the exemption for certain permanent facilities and correct
errors in punctuation, satisfy the requirements of 30 CFR 948.16(c)(2)
and resolve the concerns which caused the Secretary not to approve the
definition at 30 CFR 948.12(c) and 30 CFR 948.13(a). Accordingly, he is
approving the proposed definition and removing the disapproval, set
aside, and required amendment provisions at 30 CFR 948.12(c),
948.13(a), and 948.16(c)(2).
4. Sec. 22-3-5 Surface Mining Inspectors and Supervisors
West Virginia proposes to change the probationary status for
surface mining supervisors and inspectors from one year to six months.
The Director has determined that this revision, for which there is no
direct Federal counterpart, is within the administrative discretion of
the regulatory authority, and is not inconsistent with the requirements
of SMCRA or the Federal regulations.
5. Sec. 22-3-7 Notice of Intent To Prospect
The State proposes to revise paragraph (f) to allow for the
promulgation of regulations, the development of application forms and
to require an application fee of $2,000 for prospecting operations
intending to remove more than 250 tons of coal. While there is no
direct Federal counterpart, the Director finds that proposed revisions
are consistent with the Federal requirements for coal exploration
permits at section 512 of SMCRA and are hereby approved.
6. Sec. 22-3-8 Surface Mining Reclamation Permit
The State has deleted subsections 8(a) and 8(b), and renumbered the
remaining subsections. The deleted subsections required coal mining
operations in existence at the time of the Secretary's approval (1981)
of the West Virginia program to obtain permits under the newly approved
program. The Director finds that the deletion of these out-of-date
provisions does not render the West Virginia program inconsistent with
SMCRA or the Federal regulations.
The State proposes to revise paragraph (1) of this section to allow
for the continued operation of a mine by the transferee pending
approval of the transfer application, and subject to the ownership and
control provisions at section 22-3-18(c). The Federal counterpart to
this provision at Sec. 506(b) of SMCRA does not refer specifically to
permit transfers. However, it does allow a successor in interest to
continue coal mining operations on the current permit while awaiting
approval of the regulatory of its application for a new permit. The
Director believes that allowing permit transfer applicants to mine
while they await a decision on their application for transfer of permit
is not inconsistent with the principles underlying Sec. 506(b) of
SMCRA, so long as the applicant is eligible for a permit Sec. 22-3-
18(c) (West Virginia's ownership and control provisions), and provides
adequate bond. Furthermore, the opportunity for public comment will
remain a meaningful one, since the regulatory authority may still
ultimately deny the application for the transfer based on information
obtained during the public comment period. Therefore, the Director is
approving the provision. West Virginia proposes to increase the surface
mining permit fee from $500 to $1,000 at paragraph (4). Also, as
provided in paragraph (h), the State proposes to make compliance with
the Workers' Compensation Program a requirement of permit approval.
There are no direct Federal counterparts. The Director finds that these
provisions are not inconsistent with the requirements of SMCRA or the
Federal regulations.
7. Sec. 22-3-9 Permit Application Requirements
West Virginia proposes to revise the eligibility requirements for
its Small Operator Assistance Program (SOAP) at paragraph (b). The
State is increasing the total annual production rate for SOAP
eligibility from 100,000 to 300,000 tons of coal. In addition, the
State has added language that identifies the services that are
reimbursable under SOAP. These new services include engineering
analyses and designs needed in the determination of probable hydrologic
consequences, cross-section maps and plans, geologic drilling and
statements of results of test borings and core samplings, preblast
surveys, fish and wildlife protection and enhancement plans, and the
collection of archaeological and historical information. The Director
finds that WVSCMRA Sec. 22A-3-9(b), as revised, is substantively
identical to and, therefore, no less stringent than the corresponding
SOAP provisions of section 507(c) of SMCRA.
At subsection 9(g), the State has added the word
``administratively'' in two locations to clarify that the provision
pertains to administratively complete applications. The term
``administratively complete application'' is defined at CSR 38-2-2.9.
The Director finds these changes to be consistent with section 510 of
SMCRA, and no less effective than the use of the term
``administratively complete application'' at 30 CFR 773.13 concerning
public participation in permit processing and the definition of the
term ``administratively complete'' at 30 CFR 701.5.
8. Sec. 22-3-9a Permit To Mine Two Acres or Less
The State has deleted (S.B. 579; June 7, 1991) this section which
contains special provisions governing surface mining operations of two
acres or smaller in size. Section 528(2) of SMCRA, which set forth the
corresponding Federal provisions, was repealed pursuant to Section 201
of Public Law 100-34. Therefore, the Director finds that the proposed
deletion will not render West Virginia's program less stringent than
SMCRA. In addition, the Director finds that the deletion of WVSCMRA
Sec. 22A-3-9a eliminates the need for further action regarding the
required amendments set forth at 948.16(c)(3), (4), (5) and (6), and
the disapproval and set-aside set forth at 30 CFR 948.12(d) and
948.13(b), respectively, and he is, therefore, removing them.
9. Sec. 22-3-13 Performance Standards
The State proposes to amend subparagraph (b)(10) to require that
operators avoid acid or toxic-mine drainage by preventing or removing
water from contact with toxic producing deposits, treating drainage,
and casing, sealing or managing boreholes, shafts and wells to keep
acid drainage from entering ground and surface waters. The Director
finds that this proposal is substantively identical to and, therefore,
[[Page 6515]]
no less stringent than, the corresponding Federal statute at section
515(b)(10)(A) of SMCRA.
West Virginia proposes to revise subparagraph (b)(15) to require
the mailing of the proposed blasting schedule to every resident within
one-half mile of the blasting site, and to provide any resident or
owner of a dwelling within one-half mile of any portion of the permit
area the right to a preblast survey. The Director finds that this
proposal is substantively identical to and, therefore, no less
stringent than, the corresponding Federal statute at section 515(b)(15)
of SMCRA.
In addition, the State proposes to revise subparagraph (b)(16)(C)
to provide that underground mining permits shall terminate if
operations have not commenced within three years of the date of permit
issuance. The Director finds that this proposal is substantively
identical to and, therefore, no less stringent than section 506(c) of
SMCRA.
The State also proposes to revise subparagraph (b)(22) to require
that rock to be used in durable rock fills not slake in water and not
degrade to soil material. The Director finds that this proposal is
substantively identical to and, therefore, no less effective than the
corresponding Federal provision set forth at 30 CFR 816.73(b).
Finally, West Virginia proposes to revise paragraph (e) to allow
the Director to promulgate rules that permit variances from approximate
original contour. The Director finds that this proposal is consistent
with that portion of section 515(e) of SMCRA which permits states with
approved programs to allow variances from the requirements to return a
steep slope area to its approximate original contour (AOC). Therefore,
this revision is approved, but only to the extent that it applies to
steep slope areas as defined at WVSCMRA Sec. 22-3-13(d). In addition,
the Director is requiring that West Virginia amend its program to limit
such variances to industrial, commercial, residential, or public
alternative postmining land use, in accordance with section 515(e)(2).
10. Sec. 22-3-15 Inspections
West Virginia proposes to revise paragraph (b)(1)(C) to require
that monitoring equipment be installed, maintained and used consistent
with WVSCMRA Sec. 22-3-9 rather than WVSCMRA Sec. 22-3-10 as currently
stated. The Director has determined that this correction of a cross-
reference will not render the West Virginia program inconsistent with
the requirements of SMCRA or the Federal regulations.
The State also proposes to delete the provision in paragraph (g)
which provides that permittees, employees and inspectors are not to be
held civilly liable for any injury sustained by a person accompanying
an inspector on an inspection. The Director finds that this deletion,
which resolves the concerns raised by OSM as set forth at 30 CFR
948.12(a) and 948.13(e), will not render the West Virginia program
inconsistent with the requirements of SMCRA or the Federal regulations.
The Director is, therefore, removing the disapproval at 30 CFR
948.12(a), and the corresponding set aside at 30 CFR 948.13(e).
Finally, the State is deleting from paragraph (g) the provision
that any person accompanying an inspector on an inspection shall be
responsible for supplying any safety equipment required. There is no
counterpart to this rule in the Federal program, and the Director finds
that the deletion of this provision will not render the West Virginia
program inconsistent with the requirements of SMCRA or the Federal
regulations.
11. Sec. 22-3-17 Notice of Violation
West Virginia proposes to revise paragraph (a) of this section to
make it mandatory to issue a notice of violation whenever any provision
of WVSCMRA, the regulations promulgated pursuant thereto or a permit
condition has not been complied with. In addition, the time set for
initial abatement of a notice of violation is proposed to be changed
from 15 to 30 days, and the maximum time allowed as a reasonable
extension is changed from 75 to 60 days. The Director finds that these
revisions are no less stringent than and are procedurally similar to
section 521(a)(3) of SMCRA.
In paragraph (a), the State also proposes to delete the provision
that exempts cessation orders that are released or expire within 24
hours after issuance from mandatory civil penalty assessment of seven
hundred fifty dollars per day per violation. While there is no direct
Federal counterpart, the Director finds that the deletion of this
provision will not render the State's program inconsistent with the
requirements of SMCRA or the Federal regulations.
The State proposes to revise paragraph (b) to allow the director to
suspend or revoke a permit upon the operator's failure to show cause
why the permit should not be suspended or revoked. In addition, if the
permit is revoked, the proposal states that the commissioner shall
initiate procedures to forfeit the operator's bond in accordance with
rules promulgated by the Director. The Director finds that the
proposals are consistent with the requirements of SMCRA at section
521(a)(4) and the Federal regulations at 30 CFR 843.13.
In addition, West Virginia proposes to recodify paragraph (d)(3) as
new subsection (e) in order to clarify that appeal rights and
procedures apply to all notices, orders and decisions of the
commissioner, not just those relating to civil penalty assessments; and
to recodify paragraph (d)(4) as new subsection (f) to clarify that
temporary relief provisions apply to all enforcement actions and
orders, but not to civil penalty assessments. The Director finds that
the proposed recodification will not render the State's program
inconsistent with the requirements of SMCRA or the Federal regulations,
and satisfies the requirements of 30 CFR 948.16(c) (8) and (9), which
are hereby removed.
West Virginia proposes to revise newly redesignated section (f) to
provide that the filing of a request for an informal conference or
formal hearing will not stay the execution of the order appealed from.
The Director has determined that this proposal is substantively
identical to and, therefore, no less stringent than the corresponding
Federal provision at section 525(a) of SMCRA. Finally, the State
proposes to revise section (f) to provide that where a request for
temporary relief from an order for cessation of operations is filed,
the commissioner shall issue his decision within 5 days of receipt of
the request. The Director finds that this proposal is substantively
identical to and, therefore, no less stringent than the corresponding
Federal provision at section 525(c) of SMCRA.
12. Sec. 22-3-18 Permit Approval
The State proposes to revise paragraph (a) of this section to
require the submission of a complete permit application before a
decision is rendered, and to provide that the applicant has the burden
of establishing that the application is in compliance with the program
requirements. The Director finds that the proposed revisions are
substantively identical to and, therefore, no less stringent than the
corresponding Federal statute at section 510(a) of SMCRA.
The State has amended paragraph (c) to require that permit
applications contain violation information on any surface mining
operation owned or controlled by the applicant, rather than just those
operations located in the state of West Virginia. The Director has
determined that this revision is substantively identical to and,
therefore,
[[Page 6516]]
no less stringent than the Federal law at section 510(c) of SMCRA.
In addition, section (c) has been revised to add that no permit may
be issued upon a finding of a demonstrated pattern of willful
violations of (in addition to West Virginia statute) other State or
Federal programs implementing SMCRA of such a degree as to indicate an
intent not to comply with the State statute or SMCRA. The Director
finds these changes to be substantively identical to and no less
stringent than section 510(c) of SMCRA and satisfies the concerns
raised in 30 CFR 948.12(g) and 948.13(f) which are hereby removed.
Finally, West Virginia is proposing to revise, in section (c), the
conditions under which a permit may be issued after revocation or
forfeiture, to include situations where the violations which resulted
in the revocation or forfeiture have not caused irreparable damage to
the environment. While there is no direct Federal counterpart, the
Director finds that the proposal is not inconsistent with the permit
approval provisions of section 510 of SMCRA.
13. Sec. 22-3-19 Permit Renewal and Revision Requirements
The State proposes to revise paragraph (a)(2) of this section by
deleting the references to incidental boundary revisions, and adding a
requirement that where a renewal application proposes to extend the
operation beyond the original boundaries, the portion of the renewal
application involving the new area is subject to the full permit
application requirements. The State clarified the intent of the
amendment by stating that the term ``full standards'' as used in
WVSCMRA Sec. 22-3-19(a)(2) means that for the area being added to the
permit, the applicant must satisfy all current permitting requirements
and is subject to all inspection and enforcement provisions and all
performance standards. In other words, it would be treated like a new
permit application (Administrative Record No. WV-932). Given this
clarification, the Director finds the revisions to be substantively
identical to and, therefore, no less stringent than section 506(d)(2)
of SMCRA.
In addition paragraph (a)(4) is amended to add a two thousand
dollar filing fee for any permit renewal for an active permit. The
Director finds that this proposal is not inconsistent with the permit
fee provisions in section 507(a) of SMCRA.
Finally, West Virginia proposes to revise section (b)(3) to provide
that where the permittee desires to add new area to a permit, the
original permit may be amended to include the new area, provided the
application for the new area is subject to all the procedures and
requirements applicable to applications for original permits. The
Director finds that the revision is substantively identical to and,
therefore, no less stringent than section 506(d)(2) of SMCRA.
14. Sec. 22-3-22 Designation of Areas Unsuitable for Mining
West Virginia proposes to revise paragraph (b) of this section by
deleting the word commissioner. As revised, the provision gives any
person having an interest which is or may be adversely affected the
right to petition the Director to have the area designated as
unsuitable for mining or to have such designation terminated. The
Director finds the proposal to be substantively identical to and,
therefore, no less stringent than section 522(c) of SMCRA.
15. Sec. 22-3-26 Surface Mining Operations Not Subject to the Act
The State proposes to delete paragraph (b) of this section which
provided an exemption for the extraction of coal by a landowner engaged
in construction. There is no direct Federal counterpart to this
exemption and the Director finds that the proposed deletion will not
render the West Virginia program inconsistent with the requirements of
SMCRA or the Federal regulations.
The exemption for government financed construction at paragraph (c)
is being revised to provide that coal extraction incidental to federal,
state, county, municipal, or other local government financed highway or
other construction is exempt from the requirements of the Act. The
Director finds that this provision is substantively identical to and,
therefore, no less stringent than section 528(2) of SMCRA.
The State also proposes to delete paragraph (d) which provided an
exemption for the extraction of coal affecting two acres or less. The
Director finds this proposal to be consistent with the provisions of
subsection 201(b) of Public Law 100-34 (effective June 6, 1987) which
repealed the two-acre exemption originally set forth at section 528(2)
of SMCRA and, therefore, the deletion of this provision will not render
the State's rules inconsistent with the requirements of SMCRA or the
Federal regulations. The Director is removing required amendment 30 CFR
948.16(c)(7) because with the deletion it is no longer relevant.
16. Sec. 22-3-28 Special Permits for Abandoned Coal Waste Piles
West Virginia proposes to revise paragraph (d) of this section by
deleting the word ``reprocessing'' and adding the word ``removal'' in
order to clarify that the special permit is solely for removal of
existing abandoned coal waste piles. The Director finds that this
revision will not render the State program inconsistent with the
requirements of SMCRA or the Federal regulations. The Director notes
that the implementing rules are located at CSR 38-2-3.14(d) (see
Finding B-9 below).
17. Sec. 22-3-40 National Pollutant Discharge Elimination System
(NPDES)
The State proposes to revise this section to require a filing fee
for an NPDES permit application of $500 and a filing fee for a renewal
application of $100. The Director finds that this proposal is not
inconsistent with the general permit fee provisions of section 507(a)
of SMCRA.
18. Sec. 22B-1-4 through 12 Environmental Boards; General Policy and
Purpose
The State is adding these provisions to the West Virginia program
to establish the requirements under which environmental boards will
operate. The Director finds that the provisions are not inconsistent
with SMCRA section 503 concerning state programs. The Director notes
that West Virginia's administrative hearings and appeals procedures are
the same or similar to those in sections 514 and 525 of SMCRA. The
Director is not approving language at section 22B-1-7(d) concerning
allowing temporary relief where the appellant demonstrates that the
executed decision appealed from will result in the appellant suffering
an ``unjust hardship.'' because the exception is inconsistent with
SMCRA sections 514(d) and 525(c). In addition, the Director is
requiring that West Virginia further amend Sec. 22B-1-7(d) to be
consistent with SMCRA sections 514(d) and 525(c).
Section 7(h) would allow the Surface Mining Board to consider
economic feasibility of treating or controlling discharges from surface
coal mining operations in appeals from decisions of an order, permit,
or official action. In this respect, the provisions are less stringent
than SMCRA section 515(b)(10) and less effective than the Federal
regulations at 30 CFR 816.42, because both require discharges to be
controlled or treated without regard to economic feasibility.
Therefore, the Director is not approving this language
[[Page 6517]]
to the extent that it would allow the Board to decline to order an
operator to treat or control discharges due to economic considerations.
In addition, the Director is requiring that West Virginia further amend
Sec. 22B-1-7(h) to be no less stringent than SMCRA section 515(b)(10)
and no less effective than the Federal regulations at 30 CFR 816.42, by
requiring discharges to be controlled or treated without regard to
economic feasibility.
19. Sec. 22B-3-4 Environmental Quality Board
This new provision establishes the Environmental Quality Board's
rule-making authority. Under WV S.B. 287, the provision authorizes the
promulgation of procedural rules granting site specific variances for
water quality standards for coal remining operations; providing minimum
requirements for procedures for granting variances; prohibits granting
variances without requirement of best available technology and best
professional judgement; prohibits granting variance without
demonstration of potential for improvement; and prohibits granting
variance if degradation will result. The Director finds the provision
is not inconsistent with SMCRA section 503 which provides that State
programs must have the capacity to establish rules and regulations to
carry out the purposes of SMCRA. The provision is also not inconsistent
with section 301(p) of the Federal Water Pollution Control Act (33
U.S.C. 1311) which allows alternate effluent limitations to be
established for coal remining operations. The Director notes that any
such procedural rules that grant variances must be submitted to OSM for
approval prior to their implementation.
20. Sec. 22B-4 Surface Mine Board
The State has renamed the ``Reclamation Board of Review'' the
``Surface Mine Board'' and has established new requirements under which
it operates. However, the amendment still requires that some board
members represent outside interests. Therefore, the Director finds that
these revisions do not materially affect the basis for OSM original
determination of the Board's multiple interest status. Since the Board
continues to represent multiple interests, its members are not
``employees'' within the meaning of section 517(g) of SMCRA and the
Federal regulations at 30 CFR 705.5. Therefore, the Director finds the
provisions of section 22B-4 to be not inconsistent with SMCRA section
503 concerning State programs, section 514 concerning decisions of
regulatory authority and appeals, and 517(g) concerning financial
interests of employees.
B. Proposed Revisions to the West Virginia Surface Mining Reclamation
Regulations
1. CSR Sec. 38-2-1.2 Applicability
West Virginia proposes to delete former paragraph (b) of this
subsection. The Director finds that the deletion satisfies the
disapproval codified at 30 CFR 948.12(h). 30 CFR 948.12(h) is hereby
removed.
West Virginia proposes to revise paragraphs (c) and (d) by
providing for the termination and reassertion of jurisdiction over a
completed surface mining and reclamation operation. The Director finds
that the amendments to paragraphs (c)(2) and (d) are substantively
identical to and no less effective than the Federal regulations at 30
CFR 700.11(d)(1)(ii) and (2), respectively, concerning termination of
jurisdiction. Subsection (c)(1) is less effective than the Federal
counterpart at 700.11(d)(1)(i) to the extent that subsection (c)(1)
does not require compliance with the Federal initial program
regulations at Subchapter B or the West Virginia permanent regulatory
program as a prerequisite to the termination of jurisdiction over an
initial program site. In addition, the Director is requiring that the
State further amend subsection (c)(1) to require compliance with the
Federal initial program regulations at Subchapter B or the West
Virginia permanent regulatory program regulations as a prerequisite to
the termination of jurisdiction over an initial program site.
2. CSR Sec. 38-2-2 Definitions
a. Chemical treatment. The WVDEP proposes to define ``chemical
treatment'' at subsection 2.20. This definition, among other
applications, applies to the bond release provisions at CSR 38-2-
12.2(e). CSR 38-2-12.2(e) prohibits bond release where chemical
treatment is necessary to bring water discharged from or affected by
the operation into compliance with effluent limitations or water
quality standards as set forth in CSR 38-2-14.5(b). In effect, for
example, under the proposed definition, bond would not be released
under Sec. 38-2-12.2(e) if water discharged from or affected by an
operation is being actively treated by chemical reagents (such as
sodium hydroxide or calcium carbonate) to bring a discharge into
compliance. The bond would be released, however, if that same water
were being treated, instead, by passive treatment systems (such as
wetlands or limestone drains) to bring the discharge into compliance.
The Director finds that the blanket exclusion of passive treatment
systems from the definition of chemical treatment would render the West
Virginia program less effective than the Federal regulations at 30 CFR
800.40(c)(3) concerning release of bond. 30 CFR 800.40(c)(3) provides
that no bond shall be fully released until reclamation requirements of
SMCRA are fully met. If treatment is necessary to maintain compliance,
whether it be active or passive treatment, then the hydrologic
protection standards of SMCRA section 515(b)(10) have not been fully
met and bond cannot be released. The withheld bond helps assure that
the required treatment will be continued. The fact that a treatment
system is ``passive,'' and may not require human intervention as
frequently as an ``active'' treatment system, does not diminish the
need for assurance that treatment will be provided as long as is
necessary to maintain compliance. Therefore, the Director is approving
the definition of ``chemical treatment'' except to the extent that it
would allow bond release where passive treatment systems are used to
achieve compliance with applicable effluent limitations as discussed
above. In addition, the Director is requiring that West Virginia
further amend the West Virginia program to clarify that bond may not be
released where passive treatment systems are used to achieve compliance
with applicable effluent limitations. This finding does not mean that
OSM is discouraging the use of mining and reclamation practices and the
use of passive treatment systems that help minimize water pollution. On
the contrary, when such practices and passive systems are designed into
the approved operations and reclamation plans, they become an integral
part of an effective program to minimize the formation of acidic or
toxic drainage. However, when such passive systems are used to treat a
discharge that would otherwise not be in compliance with effluent
discharge limitations, such systems are, in effect, chemical treatment
and bond release should not be granted. Passive treatment systems have
not yet been proven effective for all parameters or on a long-term
basis; their effectiveness appears to decrease over time. See OSM's
directive TSR-10, Use of Wetland Treatment Systems for Coal Mine
Drainage, for further information on this issue.
[[Page 6518]]
b. Impoundment or impounding structure; operator; prospecting; and
sediment control or other water retention structure, sediment control
or other water retention system, sediment pond. The Director finds the
proposed definition of ``impoundment or impounding structure'' at CSR
38-2-2.66 is substantively identical to the Federal definition at 30
CFR 701.5 and is removing the required amendment codified at 30 CFR
948.16(f).
The State is adding the proposed definition of ``operator'' at CSR
38-2-2.81. This definition is substantively identical to the proposed
statutory State definition of ``operator'' at Sec. 22-3-3. See Finding
A-3a above for a complete discussion. The Director finds the proposed
definition of ``operator'' is consistent with the Federal definitions
at section 701 of SMCRA and 30 CFR 701.5.
The Federal counterpart to the definition of ``prospecting,'' is
the Federal definition of ``coal exploration'' at 30 CFR 701.5. The
State and Federal definitions are different in that the Federal
definition includes all data gathering without consideration of whether
or not disturbance occurs. However, the Director finds the proposed
definition of ``prospecting'' at CSR 38-2-2.95, while different,
doesn't render the State program less effective than the Federal
regulations, in light of the fact that CSR 38-2-13.1 contains all the
appropriate requirements for a notice of intent to prospect where no
disturbance is anticipated (see Finding B30 below). The Director is
approving the definition of prospecting, and removing the required
amendment at 30 CFR 948.16(nn). In addition, the Director notes an
apparent inconsistency between the definition of prospecting at CSR 38-
2-2.95, which excludes the gathering of environmental data without
disturbance from the definition of prospecting, and the requirements
for a notice of intent to prospect at CSR 38-2-13, which recognize that
prospecting can include data gathering without disturbance. The State
may want to correct this.
The Director finds the definition of ``sediment control or other
water retention structure, sediment control or other water retention
system, or sediment pond'' at CSR 38-2-108 to be consistent with the
federal definition of ``siltation structure'' at 30 CFR 701.5 and can
be approved, and the required amendment at 30 CFR 948.16(n) is
partially satisfied.
3. CSR Sec. 38-2-3.1 Application Information
New subsection 3.1(o) is added to authorize the grouping of
ownership and control information by permittees who are so related by
the submittal and maintenance of a centralized ownership and control
file. Each file must contain required information at CSR Sec. 38-2-3.1
(a), (c), (d), and (l) and be updated at least quarterly. However, the
file must be complete and accurate during the time that an application
is pending. There is no counterpart to the proposed language. However,
the Director finds that the proposed provision is not inconsistent with
the Federal requirements at 30 CFR 773.15 concerning review of permit
applications and can be approved to the extent that all permit
applicants which maintain centralized ownership and control files are
also required to comply with all of the informational provisions
contained in CSR 38-2-3.1.
4. CSR Sec. 38-2-3.4 Maps
The State proposes to revise paragraph (d), subparagraphs (18),
(22), (23), and (24) to require that the permit application identify
each topsoil and noncoal waste storage area, each explosive storage and
handling facility and the area of land to be affected within the
proposed permit area according to the sequence of mining and
reclamation. This revision is intended to satisfy the requirements of
30 CFR 948.16(t). Paragraph (d)(23) concerning explosive storage
facilities has also been amended to read as follows: ``The location of
any explosive storage and handling facility; which will remain in place
for an extended period of time during the life of the operation.'' The
Director finds that the amendments are substantively identical to and
no less effective than the requirements of 30 CFR 780.14(b), and that
30 CFR 948.16(t) can be removed.
5. CSR Sec. 38-2-3.6 Operation Plan
West Virginia proposes to revise paragraph (k) of this subsection
to require the submission of a fugitive dust control plan. This
revision is intended to satisfy the requirements of 30 CFR 948.16(s).
The Director finds the amendment to be substantively identical to and
no less effective than 30 CFR 780.15(a)(2) concerning a plan for
fugitive dust control practices, and that 30 CFR 948.16(s) is satisfied
and can be removed.
6. CSR Sec. 38-2-3.7 Excess Spoil
The State proposes to delete the provision in paragraph (a) which
gives the Director authority to approve alternative design requirements
for excess spoil fills. This deletion satisfies the deficiency noted at
30 CFR 948.15(k)(3) and the requirement at 948.16(i) which can be
removed.
7. CSR 38-2-3.8 New and Existing Structures and Support Facilities
Subsection 3.8(a) is amended to require that each permit
application contain a description, plans, and drawings for each support
facility to be constructed, used or maintained within the proposed
permit area. The Director finds the proposed language to be
substantively identical to and no less effective than 30 CFR 780.38
concerning support facilities.
Subsection (d) is amended by adding a provision that will provide
for the permitting and bonding of a facility or structure that is to be
shared by two or more separately permitted mining operations. The
Director finds that the provision is substantively identical to and,
therefore, no less effective than the Federal provision concerning
shared facilities at 30 CFR 778.22 and can be approved.
8. CSR Sec. 38-2-3.12 Subsidence Control Plan
The State proposes to revise paragraph (a), subparagraph (5) to
require that measures be taken to mitigate or remedy material damage to
structures due to subsidence in accordance with subsection 16.2(c) and
(d) in addition to the existing requirement of meeting 16.2(a)
concerning surface owner protection. While there is no direct Federal
counterpart to this proposal, the Director finds the proposed revisions
to be consistent with the Federal requirements at 30 CFR 784.20(b)
concerning subsidence control plans. The State also proposes to delete
the phrase in paragraph (d), subparagraph (2) which does not require an
identification of measures to be taken to protect structures when the
applicant demonstrates the right to subside without liability. This
revision is consistent with the 1992 Energy Policy Act, which added
section 720 to SMCRA and requires repair or compensation by the
operator for material damage to structures caused by subsidence
regardless of any ``right to subside.''
9. CSR Sec. 38-2-3.14 Removal of Abandoned Coal Waste Piles
The State proposes to revise paragraph (a) of this subsection which
allows the State to issue a special permit solely for the removal of
existing abandoned coal processing waste piles.
[[Page 6519]]
The added language requires that if the average quality of the refuse
material can be classified as coal using the BTU standard in ASTM D
388-88, a permit application which meets all applicable requirements of
Sec. 38-2-3 shall be required. This revision is intended to satisfy the
deficiency of 30 CFR 948.15(k)(4). The Director finds the proposed
language is consistent with the Federal requirements at 30 CFR 773.11
concerning requirements to obtain permits and can be approved, and that
30 CFR 948.15(k)(4) is satisfied.
10. CSR Sec. 38-3.15 Approved Person
West Virginia proposes to revise its approved person requirements
in this subsection. The State is proposing to allow approved persons to
certify associated facilities. It also proposes to require the
submission of a registration or license in addition to a resume.
Finally, it proposes to delete the provisions which allow the director
to require a person to requalify for ``approved person'' status, and to
suspend or withdraw ``approved person'' status. Although there are no
Federal counterparts, the Director finds the proposed changes are not
inconsistent with SMCRA and the Federal regulations concerning
requirements for permits and permit processing, since the State has
retained the provision, at subsection 3.15(a), which states that
``approved person'' may only be designated by the regulatory authority
where the WVSCMRA does not otherwise prohibit such designations.
11. CSR Sec. 38-2-3.16 Fish and Wildlife Resources
The State proposes to revise paragraph (a) to this subsection
deleting the word ``approval''. Under the revised provision, the
regulatory authority will provide only for coordination of review of
permits where such coordination is appropriate pursuant to the Fish and
Wildlife Coordination Act (16 U.S.C. 661 et seq.). The Director finds
the proposed deletion does not render the West Virginia program less
effective than 30 CFR 780.16 concerning fish and wildlife information.
12. CSR Sec. 38-2-3.25 Transfer, Assignment or Sale of Permit Rights
The State proposes to revise paragraph (a), subparagraph (4) of
this subsection to provide that the approval of a transfer application
may be granted in advance of the close of the public comment period,
provided that the Director can immediately withdraw approval if
information is made available as a result of public comment that would
preclude approval. There is no direct Federal counterpart to the
proposed language. The Federal regulations at 30 CFR 774.17(b) provide
that an applicant for approval of the transfer, assignment, or sale of
permit rights shall (at (b)(2)) advertise the filing of the application
and identify where written comments may be sent. The State counterpart
to the notice requirements of 30 CFR 774.17(b)(2) is CSR 38-2-
3.25(a)(3). While the Federal requirements at 30 CFR 774.17(b)(2)
require public notice, they do not prohibit application approval prior
to the end of the public comment period. The State proposal provides
the regulatory authority with reasonable flexibility to promptly
conclude approvals of transfer, assignment or sale of permit rights
while also assuring that public comment is considered and in those
cases where public comment presented information that would preclude
approval, the State can immediately withdraw approval. The Director
finds that the proposed language is not inconsistent with the intent of
30 CFR 774.17 concerning transfer, assignment, or sale of permit rights
and can be approved. See Finding A6, above for the Director's approval
of the statutory provision at Sec. 22-3-8 concerning permit transfers.
Paragraph (a)(4) is also amended to add reference to subsection
``3.32(d)(7)'' (formerly subsection 3.31) which requires a finding by
the State that the applicant has paid all reclamation fees from
previous and existing operations. The Federal regulations at 30 CFR
774.17(d)(1) provide that an application for a transfer, assignment or
sale may be granted where the applicant is eligible to receive a permit
in accordance with 30 CFR 773.15(b) and (c). The State counterpart to
30 CFR 774.17(d)(1) is contained at CSR 38-2-3.25(a)(4).
This paragraph requires that applicants be eligible for permits in
accordance with CSR 38-2-3.32(c), which is the State counterpart to 30
CFR 773.15(b). However, subsection 3.25(a)(4), as proposed, adds a
cross-reference to only one portion of the State's counterpart to 30
CFR 773.15(c), namely, subsection 3.32(d)(7), pertaining to payment of
reclamation fees. The State has argued, and the Director agrees, that
the other findings contained in subsection 3.32(d) (30 CFR 773.15(c))
need not be made during the review of an application for transfer,
assignment or sale since these findings relate to the issuance of the
original permit, and should, therefore, remain valid. However, the
finding at subsection 3.32(d)(7), pertaining to payment of reclamation
fees, must be made, since it relates specifically to the applicant for
transfer, assignment or sale. Therefore, the Director finds that the
additional reference to subsection 3.32(d)(7) renders the State's
program no less effective than the Federal regulations at 30 CFR
774.17(d)(1) and can be approved.
The State also proposes to revise this subsection by revising
paragraph (c) and by adding paragraphs (d) and (e). These requirements
provide that permit assignments (operator reassignments) be advertised,
contain the ownership and control information required by Subsection
3.1 and subcontractors be subject to the eligibility requirements of
Subsection 3.32. This revision is intended to satisfy the requirements
of 30 CFR 948.16(v). Although there is no direct Federal counterpart,
the Director finds the added language is no less effective than 30 CFR
774.17, and that 30 CFR 948.16(v) is satisfied can be removed.
13. CSR 38-2-3.26 Ownership and Control Changes
The language of this subsection is new and governs the reporting of
name changes, replacements, and additions to the ownership and control
information for any surface mining operation or permittee. While there
is no direct Federal counterpart to the proposed language, the Director
finds that the proposed language is not inconsistent with 30 CFR 778.13
concerning identification of interests and 778.14 concerning violation
information and can be approved.
14. CSR 38-2-3.27(a) Permit Renewals and Permit Extensions
The WVDEP proposes to add a provision which will allow the Director
to waive the requirements for permit renewal if the permittee certifies
in writing that all coal extraction is completed, that all backfilling
and regrading will be completed within 60 days prior to the expiration
date of the permit and that an application for Phase I bond release
will be filed prior to the expiration date of the permit. The proposal
also provides that failure to complete backfilling and grading within
60 days prior to the expiration date of the permit will nullify the
waiver. Finally, operations granted inactive status are also subject to
permit renewal requirements. The Director finds this provision to be
consistent with and no less effective than 30 CFR 773.11 which provides
that a permittee need not renew the permit if no surface coal mining
operations will be conducted under the permit and solely reclamation
activities remain to be done.
[[Page 6520]]
15. CSR Sec. 38-2-3.28 Permit Revisions
The State proposes to revise paragraph (b) in this subsection to
require that each application for a permit revision be reviewed by the
director to determine if an updated probable hydrologic consequences
determination (PHC) or cumulative hydrologic impact assessment (CHIA)
is needed. The Director finds the proposed revisions are substantively
identical to and, therefore, no less effective than the Federal
regulations at 30 CFR 780.21(f)(4) concerning PHC determinations.
The State also proposes to revise paragraph (c) to give the
Director the authority to require reasonable revision of a permit at
any time and to delete the provision which only required a revision to
assure adequate protection of the environment or public health and
safety. The revisions also require notice to the permittee of the need
for revisions and reasonable time for compliance. The Director finds
that the proposed revisions are similar to and no less effective than
the Federal regulations at 30 CFR 774.11(b) concerning review of
permits. These revisions satisfy the deficiency at 30 CFR 948.15(k)(5)
and the requirements of 948.16 (j) and (w). 30 CFR 948.16 (j) and (w)
are hereby removed.
16. CSR Sec. 38-2-3.29 Incidental Boundary Revisions (IBRs)
West Virginia proposes to revise its incidental boundary revision
(IBR) requirements in this subsection. The revisions in paragraph (a)
provide that IBRs will be limited to minor shifts or extensions into
non-coal areas or areas where coal extraction is incidental to or of
only secondary consideration of the intended purpose of the IBR. IBRs
will not be granted to abate a violation for encroachment beyond the
original permit boundaries, unless an equal amount of area is deleted
from the permitted area. Paragraph (b) is revised to allow IBRs for
underground mines to be larger than 50 acres when an applicant
demonstrates the need for a larger IBR. Also, applications for an IBR
must be accompanied by an adequate bond, a map showing the IBR area and
a reclamation plan for the area of the IBR. The State proposes to
delete subparagraph (6) which provides that all provisions of the IBR
which differ from the original permit meet the requirements of the Act
and regulations, except as provided in this subsection. Finally, the
State proposes to add paragraph (e) which gives the Director the
authority to require the publication of an advertisement that provides
for a ten-day public comment period for an IBR application.
There is no definition for ``incidental boundary revisions''
contained in either SMCRA or the Federal regulations. However, the
Director notes that under the proposed language IBR's will not be
authorized for surface or underground operations in cases where
additional coal removal is the primary purpose of the revision.
Therefore, the Director finds the proposed amendments to be consistent
with the principal intent of sections 511(a)(3) of SMCRA and 30 CFR
774.13(d) which pertain to incidental boundary revisions.
17. CSR Sec. 38-2-3.30 Variances
The State proposes to revise its variance requirements at
paragraphs (b), (c), (d) and (e) of this subsection. These paragraphs
set forth requirements for granting variances from contemporaneous
reclamation. These revisions are intended to satisfy the requirements
at 30 CFR 948.16(x). The Director finds the proposed language is
substantively identical to and no less effective than 30 CFR 785.18
concerning variances for delay in contemporaneous reclamation
requirements in combined surface and underground mining activities. The
Director also finds the revisions do satisfy the requirements at 30 CFR
948.16(x), which is hereby removed.
18. CSR 38-2-3.31(a) Exemption for Government Financed Highway or
Other Construction
The WVDEP proposes to revise its rules to allow exemptions from the
requirements of the WVSCMRA for county, municipal or other local
government-financed highway or other construction. The Director finds
this amendment to be consistent with and no less effective than the
Federal definitions of ``government financing agency'' and
``government-financed construction'' at 30 CFR 707.5.
19. CSR Sec. 38-2-3.32 Permit Findings
The State proposes to delete the provision in this subsection which
requires the WVDEP to use and update ownership and control information
from surrounding States in the issuance of permits. While there is no
direct counterpart to the language that is being deleted, the Director
finds the deletion does not render the West Virginia program less
effective than the requirements of 30 CFR 773.15(b) concerning review
of violations. The West Virginia program continues to provide for the
review of outstanding violations at CSR Sec. 38-2-3.32 (b) and (c).
20. CSR Sec. 38-2-3.33 Permit Conditions
The State proposes to delete subsection (i) concerning an annual
submittal of information required at Sec. 38-2-3.1. There is no direct
Federal counterpart to the deleted language. The Director finds the
proposed deletion does not render the West Virginia program less
effective than 30 CFR 773.17 concerning permit conditions. The West
Virginia program continues to retain at CSR 38-2-3.33(h) a counterpart
to 30 CFR 773.17(i) concerning notification requirements following
cessation orders.
21. CSR 38-2-3.34 Improvidently Issued Permits
The WVDEP proposes to amend paragraph (b) by inserting the phrase
``in paragraph (b) of subsection 3.32 of this section.'' This amendment
identifies where in the West Virginia program the violations review
criteria are located. The Director finds this change to be consistent
with and no less effective than 30 CFR 773.20(b)(1)(i).
Subparagraph (b)(3) has been amended by deleting the existing
language and adding in its place language that is substantively
identical to and no less effective than 30 CFR 773.20(b)(1)(iii).
New subparagraph (b)(4) has been added to provide that a permit
shall be determined to have been improvidently issued when the
permittee had a permit revoked or bond forfeited and has not been
reinstated, or the permittee was linked to a permit revocation or bond
forfeiture through ownership or control, at the time the permit was
issued and an ownership or control link between the permittee and the
person whose permit was revoked or whose bond was forfeited still
exists, or when the link was severed the permittee continues to be
responsible for the permit revocation or bond forfeiture. Although
there is no direct Federal counterpart, the Director finds the added
language to be consistent with the definition of ``violation notice''
at 30 CFR 773.5, which definition includes notices of bond forfeiture,
with 30 CFR 773.20 concerning improvidently issued permits.
Paragraph (c) is amended to add ``permit revocation or a bond
forfeiture'' to the list of circumstances that can cause a finding that
a permit was improvidently issued. While there is no direct Federal
counterpart, the Director finds the added language to be consistent
with the definition of ``violation notice'' at 30 CFR 773.5 and with 30
CFR 773.20(a)(1).
[[Page 6521]]
New subparagraph (d)(1)(E) is added to the list of circumstances
that could prevent an automatic suspension or rescission of a permit.
Under subparagraph (d)(1)(E), a permit would not be automatically
suspended or revoked if the permittee or other person responsible for
the permit revocation or bond forfeiture has been reinstated, pursuant
to section 18(c) of the WVSCMRA. While there is no direct Federal
counterpart, the Director finds the added language to be consistent
with 30 CFR 773.21(a) concerning automatic suspension or rescission of
permits.
West Virginia proposes to amend paragraph (f) of this subsection to
change the cross reference in that paragraph to subsection ``(e),''
Section 17 of WVSCMRA. The Director finds the change does not render
the West Virginia program less effective than 30 CFR 773.20(c)(2)
concerning appeals of suspensions or rescissions of permits determined
to have been improvidently issued.
Paragraph (g) is being revised to clarify that the term ``permit
issuance'' also includes permit transfers, assignments, or sales of
permit rights, as well as revisions for ownership and control purposes.
While there is no direct Federal counterpart, the Director finds the
added language is not inconsistent with 30 CFR 773.15 concerning review
of permit applications.
22. CSR Sec. 38-2-4 Haulageways, Roads, and Access Roads
West Virginia proposes to revise all of its haulroad regulations at
Section 4. The new haulroad and access road requirements provide for a
road classification system, plans and specifications, stream crossings,
standards for infrequently used roads, construction standards, drainage
design standards, performance standards, maintenance standards,
reclamation standards, primary road standards and certification. In
addition, Section 4 contains design, construction, maintenance and
abandonment requirements for other transportation facilities.
a. Sec. 38-2-4.1 (a) Road Classification System. The WVDEP
proposes to include haulageways and access roads under its road
classification system, and is defining ``primary road.'' The Director
finds these amendments to be substantively identical to and no less
effective than 30 CFR 816.150(a) concerning road classification system,
and 30 CFR 816.150(a)(2) concerning the definition of ``primary road.''
b. Sec. 38-2-4.2 Plans and Specifications. These amendments set for
the requirements for each road to be constructed, used, or maintained
within the permit area. The provisions specify that road designs are to
be certified as meeting the requirements of the WVSCMRA and
implementing rules. The WVDEP is also reorganizing its rules by
deleting the title ``4.3 Stream Crossings'' and designating paragraph
(a) of the deleted subsection 4.3 as paragraph (b) of subsection 4.2.
This reorganization is intended to clarify that CSR 38-2-4.2(b) applies
to all stream crossings, and is not limited to only roads in stream
channels. Under the proposed revisions, CSR 38-2-4.2(b) applies to all
roads whether they are within or crossing a stream. The Director finds
the proposed provisions to be consistent with 30 CFR 780.37(a)
concerning road systems; plans and drawings to the extent that the
provisions pertain to all roads, whether they are within or crossing a
stream. The Director notes that 30 CFR 780.37(a) cross references the
Federal regulations at 30 CFR 816.150(d)(1) (concerning the prohibition
against locating a road in the channel of a stream), and this in turn
cross-references other Federal hydrologic protection rules. The State
language does not contain a similar cross references in CSR 38-2-
4.2(b). The Director believes, however, that a lack of such cross
references does not render the State program less effective. The State
hydrologic protection standards apply regardless of whether or not they
are cross-referenced.
c. Sec. 38-2-4.3 Existing Haulageways or Access Roads. This
subsection provides that where it can be demonstrated that
reconstruction of existing haulageways or access roads to meet the
required design, construction, and environmental protection standards
of the West Virginia program would result in greater environmental
harm, such reconstruction may be exempt from the standards at
subsection 4.5(a)(1) and (2), and subsection 4.6(a)(2)(A) and (b),
where the sediment control requirements of CSR 38-2-5 can otherwise be
met. The provisions in the State program contain grade requirements for
roads. Since the Federal regulations contain no specific road grade
requirements, for roads. Since the Federal regulations contain no
specific road grade requirement but merely require, at 30 CFR
816.150(c), that designs include appropriate grade limits, the Director
finds these provisions to be consistent with and no less effective than
30 CFR 780.37(a) and 816.150(c) concerning plans and drawings.
d. Sec. 38-2-4.4 Infrequently Used Access Roads. This provision
requires that infrequently used access roads be designed to ensure
environmental protection appropriate for their planned duration and
use, and be constructed in accordance with current prudent engineering
practices and any necessary design criteria established by the
Director. A statement has been added to clarify that prospecting roads
are to be designed, constructed, maintained, and reclaimed in
accordance with subsection 13.6 which governs prospecting roads. Cross
references have also been revised. The Director finds the proposed
amendments to be consistent with and no less effective than 30 CFR
816.150(c) concerning design and construction limits and establishments
of design criteria.
Subsection 4.4 is also revised to provide that roads constructed
for and used only to provide for infrequent service to facilities used
in support of mining and reclamation operations may be exempt from all
haulroad requirements in CSR 38-2-4, except for subsections 4.2, 4.3,
4.5(a)(1), 4.5(b), 4.6(a), 4.7, and 4.8. These ``infrequently used
access roads'' include all roads defined as ``ancillary roads'' under
30 CFR 816.150(a)(3). Under the Federal regulations, ancillary roads
must comply with all requirements contained in 30 CFR 816.150. To be
consistent with the Federal regulations, the State program must require
that all ``infrequently used access roads'' comply with the State
program counterparts to 30 CFR 816.150. However, subsection 4.4, as
proposed, would exempt infrequently used access roads from the
requirements of subsection 4.9, which is the State program counterpart
30 CFR 816.150(f) pertaining to reclamation of roads. Therefore, the
Director is not approving subsection 4.4 to the extent that it exempts
infrequently used access roads from the requirements of subsection 4.9.
The Director is also requiring the State to amend its program to
require that all infrequently used access roads comply with CSR 38-2-
4.9.
e. Sec. 38-2-4.5 Construction. This provision sets forth the grade
limits for the construction of haulageways or access roads and the
tolerance standards for grade measurements and linear measurements.
While there are no direct Federal counterparts, the Director finds
these amendments to be consistent with 30 CFR 816.150(c), which
requires that designs for roads contain appropriate grade limits.
[[Page 6522]]
f. Sec. 38-2-4.6 Drainage Design. These amendments set forth the
standards for all drainage designs of haulageways or access roads. The
amendments also specify that culverts shall be installed and maintained
to sustain the vertical soil pressure, the passive resistance of the
foundation and the weight of the vehicles using the road. While there
are no Federal counterparts which apply to all roads, the Director
finds these amendments to be consistent with 30 CFR 816.150(c), which
requires that road designs contain plans for surface drainage control,
and 30 CFR 816.151(d) concerning drainage control for primary roads.
g. Sec. 38-2-4.7 Performance Standards. These amendments are
intended to set forth the performance standards for the location,
design, construction, reconstruction, use, maintenance, and reclamation
of roads. The Director finds the proposed amendments to be no less
effective than 30 CFR 816.150(b) concerning performance standards for
roads. The proposed changes governing sediment storage volume and
detention time as applied to drainage from roads are intended to
clarify that the regulatory authority may approve lesser storage values
than 0.125 acre/feet if compliance with the applicable effluent limits
and the general performance standards for roads can be achieved. OSM
conducted a study of West Virginia's 0.125 acre/feet standard and
determined that its application in West Virginia does not render the
State program less effective than the Federal regulations at 30 CFR
816.46(c)(1)(iii) (Administrative Record Number WV-890). The study did
not address the adequacy of lesser storage values. However, so long as
the end result is that applicable effluent limits are not exceeded,
West Virginia may allow the use of lesser storage values. Therefore,
the Director finds that the proposed language, which continues to
require compliance with the applicable effluent limitations and
performances standards for roads and providing the regulatory authority
with reasonable flexibility in implementing the West Virginia program,
does not render the West Virginia program less effective than the
Federal regulations at 30 CFR 816.46(c)(1)(iii) concerning siltation
structures.
h. Sec. 38-2-4.8 Maintenance. These amendments provide that roads
shall be maintained to meet the West Virginia performance standards for
roads and any additional standards specified by the State. Roads that
are damaged by catastrophic events shall be repaired as soon as is
practicable. The Director finds these amendments to be substantively
identical to and no less effective than 30 CFR 816.150(e) concerning
maintenance.
i. Sec. 38-2-4.9 Reclamation. These amendments set forth the
performance standards for roads that are not to be retained under the
approved postmining land use. With the exception of subsection 4.9(e),
the Director finds the amendments to be substantively identical to and,
therefore, no less effective than 30 CFR 816.150(f)(1-4), and (6),
concerning reclamation of roads. Subsection 4.9(e) contains drainage
and culvert requirements for road abandonment. While there are no
direct Federal counterparts, the Director finds these requirements to
be consistent with and, therefore, no less effective than the
requirement to protect the natural drainage contained in 30 CFR
816.150(f)(5).
j. Sec. 38-2-4.10 Primary Roads. These amendments set forth the
performance standards for primary roads. The Director finds these
amendments to be substantively identical to and, therefore, no less
effective than 30 CFR 816.151 concerning primary roads.
k. Sec. 38-2-4.11. Support Facilities and Transportation
Facilities. These amendments set forth the requirements for support and
transportation facilities such as railroad loops, spurs, sidings,
surface conveyor systems, chutes, and aerial tramways ``which are under
the control of the permittee.'' The Director is concerned that the
phrase ``which are under the control of the permittee'' could be
interpreted to exclude from these requirements certain support
facilities which are within the definition of ``surface coal mining
operations'' at 30 CFR 700.5. Therefore, the Director is approving this
amendment only to the extent that it does not exclude facilities that
are included within the definition of ``surface coal mining
operations'' at 30 CFR 700.5.
l. Sec. 38-2-4.12. Certification. This provision requires that,
upon completion of construction, all primary roads for which design
criteria were approved as part of the permit shall be certified. Where
the certification statement for a primary road indicates a change from
design standards or construction requirements in the approved permit,
such changes must be documented in as-built plans and submitted as a
permit revision. The Director finds the proposed language to be
consistent with and no less effective than 30 CFR 816.151(a) concerning
certification, and 30 CFR 774.13 concerning permit revisions.
This subsection also requires that all roads used for
transportation of coal or spoil, and which are constructed outside the
permitted coal extraction area shall be certified before they are used
for such transportation. Finally, any roads within the coal extraction
area which are constructed concurrently with progress of mining
activities shall be certified in increments of 1,000 linear feet as
measured from the active pit. While there are no Federal counterparts
to these two proposals, the Director finds that they are consistent
with 30 CFR 780.37(b) and 816.151(a).
23. CSR Sec. 38-2-5.2 Intermitteent or Perennial Streams
The State proposes to revise this subsection to provide that before
the director can approve any mining within 100 feet of an intermittent
or perennial stream, the director must find that such activities will
not cause or contribute to the violation of applicable State or Federal
water quality standards. The Director finds that the amendment
satisfies 30 CFR 948.16(aa) and can be approved. 30 CFR 948.16(aa) is
hereby removed.
24. CSR Sec. 38-2-5.4 Sediment Control
West Virginia proposes to revise paragraph (a) of this subsection
to make its sediment control requirements applicable to other water
retention structures, and it is deleting all references to on-bench
sediment control systems. The State has also deleted the reference to
the design, construction and maintenance criteria in the Technical
Handbook. The Director finds that this revision satisfies the
requirements of 30 CFR 948.15(k)(6) and 30 CFR 948.16(n) and can be
approved. The required amendment at 30 CFR 948.16(n) is hereby removed.
Paragraph (b) is revised to make its design and construction
requirements applicable to sediment control or other water retention
structures used in association with the mining operation. The State has
deleted references to on-bench sediment control structures. The
Director finds this deletion is consistent with the deletion at
paragraph 5.4(a), and does not render the West Virginia program less
effective than the Federal regulations at 30 CFR 780.25, 816,45, 816.46
and 816.49.
Subparagraph (b)(12) is revised to require that foundation
investigations and any necessary laboratory testing be performed to
determine foundation stability design for impoundments meeting the size
or other criteria of 30 CFR 77.216(a). This revision satisfies the
requirement at 30 CFR 948.16(pp) and can be approved, and 30 CFR
948.16(pp) can be removed.
[[Page 6523]]
Subparagraph (b)(13) has been revised to require that all sediment
control and other water retention structures be certified in accordance
with the design requirements of the Act and regulations and other
design criteria established by the Director. The Director finds the
proposed language to be consistent with and no less effective than 30
CFR 780.25 concerning reclamation plans for siltation structures,
impoundments, banks, dams, and embankments.
West Virginia proposes to revise paragraph (c) to make the
requirements of that paragraph applicable to all embankment type
sediment control or other water retention structures, including slurry
impoundments. The Director finds that this revision satisfies the
requirement at 30 CFR 948.16(qq) and can be approved. 30 CFR 948.16(qq)
is hereby removed.
Subparagraph (c)(3) is revised to require the installation of
cutoff trenches during embankment construction to ensure stability. The
Director finds that this revision satisfies the requirement at 30 CFR
948.16(rr) and can be approved. 30 CFR 948.16(rr) is hereby removed.
Subparagraph (c)(4) is revised to require prompt notification of
the State if any examination or inspection of an impoundment discloses
that a hazard exists. The Director finds that this revision satisfies
the requirement at 30 CFR 948.16(ss) and can be approved. 30 CFR
948.16(ss) is hereby removed.
Subparagraph (c)(6) is revised to require that the design plan for
an impoundment which meets the size criteria of 30 CFR 77.216(a)
include a stability analysis which includes but is not limited to
strength parameters, pore pressures, and long-term seepage conditions.
Subparagraph (c)(6) also provides that the design plan will include a
description of each engineering design assumption and calculation.
These revisions satisfy the requirements at 30 CFR 948.16(ccc) and can
be approved, and 948.16(ccc) can be removed.
Paragraph (d) has been revised to require that where sediment
control or other water retention structures are constructed in sequence
with the advance of the mining to allow for on-bench construction, such
systems shall be constructed and certified in sections of 1,000 linear
feet or less as measured from the active pit. While there is no direct
Federal counterpart to the proposed language, the Director finds that
the language is not inconsistent with 30 CFR 816.49(a)(3) concerning
design certification.
The State proposes to revise paragraph (e) to require the
inspection of sediment control or other water retention structures. The
State also proposes to require that the professional engineer, licensed
land surveyor, or other specialist involved in the inspection of
impoundments be experienced in the construction of impoundments. The
Director finds that this revision satisfies the requirement at 30 CFR
948.16(uu) and can be approved, and 948.16(uu) can be removed.
West Virginia proposes to revise paragraph (h) to make its
abandonment requirements applicable to sediment control and other water
retention structures. The Director finds that these changes do not
render the State program less effective than the Federal regulations,
and are consistent with the required amendment at 30 CFR 948.16(n) and
can be approved.
25. CSR 38-2-5.5 Permanent Impoundments
The WVDEP proposes to clarify that sediment or water retention or
impounding structures left in place after final bond release must be
authorized by the Director as part of the permit application or a
revision to a permit. The Director finds this revision partially
satisfies 30 CFR 948.16(vv) (the first sentence) and can be approved.
The Director is making this finding with the assumption that the
apparent typographical error in the first sentence of subsection 5.5
(``review'' should be ``revision'') will be corrected. The State has
also proposed to amend subsection 5.5(c) to require the landowner to
provide for sound future maintenance of a permanent impoundment. The
Director finds that this provision satisfies the requirement codified
in the second sentence of 30 CFR 948.16(vv). The proposed provisions
are approved, and 30 CFR 948.16(vv) is hereby removed.
26. CSR 38-2-6 Blasting
a. Sec. 38-2-6.3(b) Public Notice of Blasting Operation. This
subsection is amended to require that all local governments and
residents or owners of dwellings or structures located within one-half
mile of the blast site be notified of surface blasting activities
incident to an underground mine. The State also proposes to require
that the blasting notification be announced weekly, but in no case less
than 24 hours before the blasting will occur. The Director finds the
amended language to be substantively identical to and no less effective
than 30 CFR 817.64(a).
b. Sec. 38-2-6.6 Blasting Control for Other Structures. The State
proposes to revise Subsection 6.6 to require that all non-protected
structures in the vicinity of the blasting area be protected from
damage by the establishment of a maximum allowable limit on ground
vibration specified by the operator in the blasting plan and approved
by the Director. The Director finds that this revision satisfies the
requirement at 30 CFR 948.16(cc) and can be approved. 30 CFR 948.16(cc)
is hereby removed.
c. Sec. 38-2-6.8 Preblast Survey. Subparagraph 6.8(a) is amended
to delete language that excludes a certain portions of the permit area
when determining the applicability of preblast survey notification
requirements. The Director finds this revision satisfies the
requirements of 30 CFR 948.15(k)(7) and 948.16(l) and can be approved.
30 CFR 948.16(l) is hereby removed.
27. Sec. CSR 38-2-8.1 Protection of Fish and Wildlife and Related
Value
West Virginia proposes to add an exception to paragraphs (e)(1) and
(e)(3) of Subsection 8.1 to require the use of the best technology
currently available to protect raptors and large mammals, except where
the Director determines that such requirements are unnecessary. The
Director finds the added language to be substantively identical to and
no less effective than 30 CFR 816.97(e)(1) and (3).
28. CSR Sec. 38-2-9 Revegetation
The State proposes to revise paragraphs (g) and (h) of Subsection
9.3 to require that, in determining success on areas to be developed
for forestland and wildlife resources or commercial woodlands, the
trees and shrubs counted be healthy and in place for not less than two
growing seasons. This revision is intended to satisfy OSM's Regulatory
Reform III letter of March 6, 1990. The Director finds these amendments
to be substantively identical to and no less effective than 30 CFR
816.116(b)(3)(ii) concerning revegetation, standards for success.
29. CSR Sec. 38-2-11.1 Insurance
The State proposes to revise paragraph (a) of this subsection to
clarify that liability insurance must be maintained throughout the life
of the permit or any renewal thereof. The State also proposes to revise
this paragraph to provide that there are no exclusions for blasting
from the property damage coverage. The Director finds the proposed
amendments are substantively identical to and no less effective than 30
CFR 800.60 concerning terms and conditions for liability insurance.
[[Page 6524]]
30. CSR Sec. 38-2-13 Notice of Intent to Prospect
Subsection 13.1 is added to this section. Under this subsection,
where prospecting operations are proposed without surface disturbance
and without appreciable impacts on land, air, water, or other
environmental resources, the Director may waive the requirements of
this section and the bonding requirements of Sec. 22A-3-7 of the
WVSCMRA. To qualify, at least 15 days prior to commencement of any
prospecting activities, the operator must file with the Director a
written notice of intent to prospect. The notice must include a
description of the activities to be conducted and a USGS topographic
map showing the area to be prospected. The Director may approve the
notice of intent subject to the findings required by paragraph (b) of
Subsection 13.4. CSR 38-2-13.4(b) provides that the regulatory
authority, to approve an application, must find, in writing, that the
applicant has demonstrated that the prospecting operation will be
conducted in accordance with section CSR 38-2-13, and other applicable
provisions of the State regulations and statute, and the application.
This revision is intended to satisfy in part the requirements of 30 CFR
948.15(l)(2). The Director finds that the proposed language is no less
effective than 30 CFR 772.11 concerning notice requirements for
exploration removing 250 tons of coal or less. The Director notes that
where no surface disturbance or other appreciable impacts caused by
coal exploration are anticipated, and no lands unsuitable are involved,
applicants will not have some of the information required by 30 CFR
772.11, such as information related to drilling and trenching located
at 772.11(b)(3) and reclamation located at 772.11(b)(5).
Subsection 38-2-13.5(b) concerning performance standards for
prospecting roads is deleted and new requirements for prospecting roads
are established at CSR 38-2.13.6. The new provisions provide the
environmental standards relevant to the location, design, construction
or reconstruction, use, maintenance, and reclamation of prospecting
roads. The Director finds the proposed standards are substantively
identical to and no less effective than 30 CFR 816.150 concerning
general performance standards for roads.
Subsection 13.10 is revised to provide that, notwithstanding any
other provision of this section, any person who proposes to conduct
prospecting operations on lands which have been designated as
unsuitable for surface mining pursuant to Sec. 22A-3-22 of the WVSCMRA
shall file a notice of intent in accordance with Subsection 13.3.
Approval of the notice of intent shall be in accordance with Subsection
13.4. The Director finds the amendment to be consistent with and no
less effective than 30 CFR 772.11(a).
31. CSR Sec. 38-2-14.5 Hydrologic Balance
West Virginia proposes to revise paragraph (b) of this subsection
to require that monitoring frequency and effluent limitations be
governed by the standards set forth in a National Pollutant Discharge
Elimination System (NPDES) permit issued pursuant to Sec. 20-5-1 et
seq. of the West Virginia Code, the Federal Water Pollution Control Act
as amended, 33 U.S.C. 1251 et seq. and the rules and regulations
promulgated thereunder. The Director finds these amendments to be
consistent with and no less effective than 30 CFR 816.42 concerning
water quality standards and effluent limitations.
Paragraph (c) has been revised to require that any water discharged
from a permit area and treated complies with the requirements of
paragraph (b) of this subsection, pertaining to NPDES permits. The
Director finds this amendment is consistent with and no less effective
than 30 CFR 816.42 concerning water quality standards and effluent
limitations.
Paragraph (h) has been revised to provide that a waiver of water
supply replacement rights granted by a landowner can apply only to
underground mining, provided that it does not exempt any operator from
the responsibility of maintaining water quality. Under section
720(a)(2) of SMCRA and 30 CFR 816.41(j), the permittee must promptly
replace any drinking, domestic, or residential water supply that is
contaminated, diminished, or interrupted by underground mining
activities conducted after October 24, 1992, if the well or spring was
in existence before the permit application was received. Such water
supplies may be replaced by restoring a spring or an aquifer, or by
providing water from an alternative source, such as from another
aquifer or from a public water supply or a pipeline from another
location.
While a landowner may not desire the replacement of a water supply
on his or her property, a waiver is only permissible under the
circumstances set forth in paragraph (b) of the definition of
``Replacement of water supply'' at 30 CFR 701.5.
The definition of ``Replacement of water supply'' at 30 CFR 701.5
provides that, at paragraph (b), if the affected water supply was not
needed for the land use in existence at the time of loss,
contamination, or diminution, and if the supply is not needed to
achieve the postmining land use, replacement requirements may be
satisfied by demonstrating that a suitable alternative water source is
available and could feasibly be developed. If the latter approach is
selected, written concurrence must be obtained from the water supply
owner.
Therefore, the waiver of water supply proposed to be authorized by
the State must be consistent with the definition of ``Replacement of
water supply'' at 30 CFR 701.5. The Director notes that while section
720(a)(2) of SMCRA does not expressly authorize waivers, the
regulations implementing this provision recognize that waivers are
appropriate under certain circumstances, provided the permittee
demonstrates that an alternative source is available. However, under
the definition, no waivers (source or delivery system) are permissible
if the water supply is needed for either the existing land use or the
approved postmining land use.
The Director finds that the proposed language is not inconsistent
with SMCRA and the Federal regulations except to the extent that the
proposed waiver would not be implemented in accordance with the
definition of ``Replacement of water supply'' at 30 CFR 701.5. The
Director also finds that this revision satisfies the requirements of
948.16(q), and that 30 CFR 948.16(q) can be removed. In addition, the
Director is requiring that the West Virginia program be further amended
to clarify that under Section 22-3-24(b) and CSR 38-2-14.5(h), the
replacement of water supply can only be waived under the conditions set
forth in the definition of ``Replacement of water supply,'' paragraph
(b), at 30 CFR 701.5.
32. CSR Sec. 38-2-14.8 Steep Slope Mining
The State proposes to revise subparagraph (1) of paragraph (a) of
this subsection to provide that casting of spoil from a higher seam to
a lower seam in multiple seam operations may only occur where the
highwall of the lower seam intersects the outcrop of the upper seam;
the lowest seam is mined first or in advance of the upper seams; and
minimum bench widths based on slopes are established on the lower bench
sufficient to accommodate both spoil placement from the upper seam and
bench drainage structures. This revision is intended to satisfy in part
the requirements of 30 CFR 948.15(1)(2) by
[[Page 6525]]
preventing the placement of spoil on natural intervening slopes.
The Federal rules do not specifically address the use of cast
blasting as a means of spoil transport in multi-seam operations.
However, this practice is not inherently inconsistent with any Federal
requirement. The State rule does not exempt these operations from
compliance with other applicable requirements of the approved program.
Instead, it would provide additional assurance that cast lasting is
conducted in a safe and environmentally sound manner. For example, any
State authorized cast blasting would necessarily have to comply with
the approved State blasting provisions at CSR 38-2-6, such as the State
rules controlling flyrock at CSR 38-2-6.5(d). The approved State
requirements for the compaction and stability (a 1.3 static safety
factor is required) of the backfill at CSR 38-2-14.8(a)(4) also apply.
In some cases, the stability analysis might require that certain
materials need to be rehandled to place spoil in its final place or to
achieve adequate compaction of the backfill.
The approved State requirements for contemporaneous reclamation at
CSR 38-2-14.15 also apply. The approved State prohibition at CSR 38-2-
14.8(a)(1) of placing spoil on the downslope also applies. Where excess
spoil is involved, the approved State requirements at CSR 38-2-14.14
would also apply. The required amendment codified at 30 CFR 948.16(xx)
is being revised to require that the State amend its program at CSR 38-
2-14.8(a) to specify design requirements of outcrop barriers that will
be the equivalent of natural barriers and will assure the protection of
water quality and insure the long-term stability of the backfill. With
these considerations in mind, the Director finds that the amendment to
allow the use of cast blasting is not prohibited by or otherwise
inconsistent with SMCRA and the Federal regulations at 30 CFR 816.107
concerning backfilling and grading of steep slopes. The Director is
taking this opportunity to delete the required amendments codified at
30 CFR 948.16(yy) and (zz). The required amendments are being removed
because the West Virginia rules that had the deficiencies were never
approved by the West Virginia legislature and do not appear in the
latest submittal of the rules.
The State also proposes to revise subparagraph (4) of paragraph (a)
to prohibit placement of woody materials in the backfill unless the
Director first determines that the method of placement of woody
material will not deteriorate the future stability of the backfilled
area. The Director finds the amended language substantively identical
to 30 CFR 816.107(d), and that this revision satisfies the requirement
at 30 CFR 948.16(hh). 30 CFR 948.16(hh) is hereby removed.
33. CSR Sec. 38-2-14.11 Inactive Status
West Virginia proposes to revise paragraph (b) of this subsection
to provide that the Director may grant inactive status for a period not
to exceed one-half the permit term if it is determined that the
application contains sufficient information to meet all requirements of
paragraph (a): Provided that where the applicant documents in the
application that the operations will become inactive for more than 30
days, but will be reactivated on an intermittent and/or irregular basis
during the approval period, such operations are not required to reapply
for inactive status except at the termination date of the initial term
of approval: Provided, however, that the Director may review the
approval of inactive status during its term and require updated
information pursuant to paragraph (a) and, based upon this or other
information, may modify or rescind the approval prior to its initial
termination date. The Director finds the amended language to be no less
effective than 30 CFR 816.131 concerning temporary cessation of
operations, which requires notification to the regulatory authority by
the operator of any intention to temporarily cease mining for more than
30 days.
34. CSR Sec. 38-2-14.12 Variance From Approximate Original Contour
Requirements
West Virginia proposes to revise paragraph (a)(6) to provide that
the Director may grant a variance from the requirements for restoring
the mined land in steep slope areas to approximate original contour if
the watershed of the permit and adjacent area will be improved by
reducing pollutants, environmental impacts, or flood hazards; provided
that, the watershed will be deemed improved only if the amount of total
suspended solids or other pollutants discharged to ground or surface
water from the permit area will be reduced, or flood hazards will be
reduced, and if changes in seasonal flow volumes from the proposed
permit area will not adversely affect surface water ecology or any
existing or planned use of the surface or ground water. The Director
finds that this change satisfies the requirement at 30 CFR 948.16(ii)
and is no less effective than 30 CFR 785.16(a)(3)(i) and (ii). 30 CFR
948.16(ii) is hereby removed.
35. CSR 38-2-14.14 Disposal of Excess Spoil
Subsection (e)(2) provides that the valley fills shall be designed
to assure a long-term static safety factor of 1.5 or greater. The
Director finds that this provision satisfies 30 CFR 948.16(jj) which
can be removed, and is no less effective than 30 CFR 816.71(b)(2)
concerning excess spoil. 30 CFR 948.16(jj) is hereby removed.
Subsection (e)(10) is amended to limit the maximum grade from the
outslope of a valley fill toward the rock core to three percent. The
Director finds this amendment to be substantively identical to and no
less effective than 30 CFR 816.72(b)(3) concerning slopes of valley and
head-of-hollow fills.
36. CSR 38-2-14.15 Contemporaneous Reclamation Standards
West Virginia has completely revised this subsection to require
that the mining and reclamation plan for each operation describe how
the mining and reclamation operations will be coordinated to minimize
total land disturbance and to keep reclamation operations as
contemporaneous as possible with the advance of mining operations. The
revised provisions specify time, distance and acreage limits for single
seam contour mining, single seam contour mining and auger operations,
area mining, augering, multiple seam mining, and mountaintop removal
operations. The proposed rules set deadlines for existing and new
operations to comply with these requirements, and they allow the
Director to grant variances to specific standards with proper
justification. The Director finds these amended provisions to be
consistent with and no less effective than 30 CFR 816.100 concerning
contemporaneous reclamation, and the backfilling and grading
requirements at 30 CFR 816.102. The Director notes that 30 CFR 816.101
concerning time and distance requirements for contemporaneous
reclamation is suspended (57 FR 33875; July 31, 1992) and cannot be
used as a standard against which to judge the effectiveness of State
programs. As such, the Federal regulations do not contain specific time
and distance requirements, but only require, at 30 CFR 816.100, that
reclamation efforts occur as contemporaneously as practicable with
mining operations.
Subsection (m) is amended to add provisions governing the placement
of coal processing waste in the backfill. Under the proposed provision,
compaction shall be in accordance with CSR 38-2-22.3(p) and shall
achieve a
[[Page 6526]]
minimum static safety factor of 1.3. The coal processing waste shall
not contain acid-producing or toxic-forming material and shall be
placed in a controlled manner to: minimize effects on surface and
groundwater quality and quantity; ensure mass stability; ensure
suitable reclamation and revegetation compatible with the postmining
land use; not create a public hazard; and prevent combustion. Such
disposal facilities must be designed using current prudent engineering
practices and must meet any design criteria established by the
regulatory authority. Designs must be certified by a qualified
registered professional engineer. Any potential hazards must be
promptly reported. The Director finds these amendments do not render
the State program less effective than 30 CFR 816.81 (a) and (c)(1). 30
CFR 816.81(b) does not apply because the State is not proposing to
allow coal waste from activities located outside the permit area to be
placed in the backfill. 30 CFR 816.81(d) does not apply because the
coal waste will be placed in the backfill, and not in a refuse pile.
The State has proposed a static safety factor of 1.3 which is identical
to that required at 30 CFR 816.102(a)(3) concerning backfilling and
grading; general standards. The 1.3 static safety factor is the
appropriate factor to require, since the proposed provision concerns
placing coal waste in a backfill and not in a waste pile. Finally, the
Director notes that all the State provisions concerning the protection
of the hydrologic balance will continue to apply. The prohibition in
the proposed language to the placement of acid-producing and toxic-
forming material in the backfill will help assure the protection of the
hydrologic balance.
37. CSR Sec. 38-2-14-17 Control of Fugitive Dust
West Virginia proposes to revise this subsection to require that
all exposed surface areas be protected and stabilized to effectively
control erosion and air pollution attendant to erosion.
The Director finds this revision to be substantially identical to
and, therefore, no less effective than the Federal regulations at 30
CFR 816.95(a).
38. CSR 38-2-14.18 Utility Installations
WVDEP proposes to add a provision requiring that all surface mining
operations be conducted in a manner that minimizes damage, destruction,
or disruption of services provided by utilities. The Director finds the
added provision to be substantially identical to and, therefore, no
less effective than 30 CFR 816.180 concerning utility installations.
39. CSR 38-2-14-19 Disposal of Noncoal Waste
WVDEP proposes to add provisions to regulate the disposal of
noncoal waste such as grease, lubricants, garbage, abandoned machinery,
lumber and other materials generated during mining activities. Under
the proposal, final disposal of noncoal waste will be in accordance
with a permit issued pursuant to Chapter 22, Article 15 of the Code of
West Virginia (Solid Waste Management Act). The Director finds these
provisions consistent with the Federal regulations at 30 CFR 816.89(b)
which allows operators to dispose of noncoal mine waste in State-
appointed solid waste disposal areas outside of the permit area.
The proposed provisions would also allow timber from clearing and
grubbing operations to be wind-rowed below the projected toe of the
outslope. The Director finds these provisions to be non inconsistent
with the Federal regulations at 30 CFR 816.89 concerning disposal of
noncoal mine wastes. However, the proposed windrowing is less effective
than the Federal steep slope regulations at 30 CFR 816.107(b). 30 CFR
816.107(b) prohibits the placement of debris, including that from
clearing and grubbing, on the downslope in steep slope areas.
Therefore, the Director is approving the proposed amendments except to
the extent that windrowing would be allowed on the downslope in steep
slope areas. In addition, the Director is requiring that West Virginia
further amend CSR 38-2-14.19(d) to clarify that windrowing will not be
allowed on the downslope in steep slope areas.
40. CSR 38-2-15.2 Backfilling and Regrading; Underground Mines
The State proposes to revise paragraph (b) of this subsection to
require that reclamation activities of an underground mine be initiated
within 30 days of completion of underground operations. The Director
finds the proposed amendment to be consistent with 30 CFR 817.100
concerning contemporaneous reclamation.
41. CSR 38-2-16.2 Subsidence Control; Surface Owner Protection
West Virginia proposes to revise paragraph (c) of this subsection
by deleting the phrase, ``To the extent required under applicable
provisions of State law.'' This revision is intended to correct the
deficiency noted at 30 CFR 948.15(k)(11). The Director finds the
proposed deletion does not render the West Virginia program less
effective than 30 CFR 817.121(c)(2), and satisfies the deficiency noted
at 30 CFR 948.15(k)(11).
42. CSR Sec. 38-3-17 Small Operator Assistance Program (SOAP)
The State is making numerous changes to its SOAP provisions.
a. Subsection 17.1 is amended to identify services fundable under
the SOAP and to provide that the State will develop procedures for the
interstate exchange of SOAP information. While there is no Federal
counterpart to interstate exchanges of SOAP information, the Director
finds these changes to be consistent with and no less effective than 30
CFR 795.9 concerning program services and data requirements, and no
less stringent than section 507(c)(2) of SMCRA, concerning the
assumption of training costs.
b. Subsection 172. is amended to clarify that requests for SOAP
assistance must be in writing. The Director finds the amendment to be
consistent with 30 CFR 795.7 concerning filing for assistance.
c. Subsection 17.3 is amended to increase the production limit of
those operators eligible for assistance under the SOAP from 100,000 to
300,000 tons. The State is also raising, at 17.3(b)(1), the threshold
ownership percentage for which coal production from an operation will
be attributed to the applicant from five percent to ten percent
interest. Finally, the State is requiring that all coal produced by
operations owned by persons who directly or indirectly control the
applicant by reason of direction of the management be attributed to the
applicant. The Director finds these changes to be substantively
identical to counterpart provisions at 30 CFR 795.6(a). In addition,
the requirement at 30 CFR 948.16(kk) is satisfied and is hereby
removed.
d. Subsection 17.4 is amended to require SOAP applicants to use
application forms and format provided by the State. While there is no
direct Federal counterpart, the Director finds these changes to be
consistent with 30 CFR 795.7 concerning filing for assistance.
e. Subsection 17.5 is amended to provide that applicants be
notified in writing of approval or denial of a SOAP application. This
subsection is also amended to add that contractors may be used for SOAP
assistance to qualified laboratories. The Director finds these changes
to be consistent with and no less effective than 30 CFR 795.8(a)
concerning application approval and
[[Page 6527]]
notice, and 795.10(b) concerning subcontractors.
f. Subsection 17.6 is amended to add the term SOAP contractor, and
to provide that the laboratory or contractor must be qualified to
perform the required determinations and statements. The Director finds
the changes to be consistent with and no less effective than 30 CFR
795.10 concerning qualified laboratories and subcontractors.
g. Subsection 17.7(a)(4) and 17.7(a)(5) are amended to clarify that
operator liability will be based on actual and attributed annual
production for all locations of 300,000 tons during the 12-month period
immediately following permit issuance. The Director finds this
provision to be substantively identical to and no less effective than
30 CFR 795.12(a)(2), concerning applicant liability.
Subsection 17.7(b) is amended to require applicants to submit
written statements with sufficiently demonstrate that the applicant has
acted in good faith at all times prior to the State waiving the
reimbursement obligation. The Director finds this provision to be
substantively identical to 30 CFR 795.12(b).
43. CSR Sec. 38-2-18.3 Review of Decision Not to Inspect or Enforce
Subsection 18.3(b) has been revised to provide that any person who
is or may be adversely affected by the decision of the Director not to
inspect or enforce may appeal such decision to the Surface Mine Board
pursuant to Sec. 22-4-2 of the Code of West Virginia. The Director
finds the amended language to be substantively identical to and no less
effective than 30 CFR 842.15(d) concerning review of decision not to
inspect or enforce.
44. CSR Sec. 38-2-20.1 Inspection Frequencies
The State proposes to revise paragraph (a) of this subsection to
provide that prospecting operations be inspected ``as necessary'' to
assure compliance with the Act and these regulations. The Director
finds the proposed language to be substantively identical to and no
less effective than 30 CFR 840.11(c) concerning inspections by State
regulatory authorities.
45. CSR Sec. 38.2-20.2 Notices of Violations
Paragraph (a) of this subsection has been amended to provide that
when the Director determines that a surface mining and reclamation
operation or prospecting operation is in violation of any of the
requirements of the Act, these regulations or the terms and conditions
of the permit or prospecting approval, a notice of violation shall be
issued. Such notice of violation shall comply with all the requirements
and provisions of this subsection. In the past, pursuant to its Code of
Violations, the State issued enforcement actions rather than notices of
violation, for certain violations. This proposal will only allow the
issuance of a notice of violation. The Director finds the added
language no less effective than 30 CFR 843.12(a)(1) concerning notices
of violations.
Subparagraph (b)(3) has been amended to change the maximum initial
abatement period from 15-days to 30-days. This change is proposed to
render the regulations consistent with 22-3-17(o) of WVSCMRA which now
provides for an initial abatement period of 30 days, followed by a
maximum additional abatement period of 60 days following issuance of a
cessation order. The Director finds the change is reasonable and does
not render the West Virginia program less effective than 30 CFR
843.12(b)(3) concerning abatement of violations, or less stringent than
section 521(a)(3) of SMCRA, which allows a maximum total abatement
period of 90 days, following issuance of a notice of violation and
cessation order.
46. CSR Sec. 38-2-20.4 Show Cause Orders
West Virginia proposes to revise paragraph (b) of this subsection
by adding the phrase, ``where violations were cited.'' The proposal
provides that the Director may determine a pattern of violations exists
or has existed where violations were cited on two or more inspections
of the permit area within any 12-month period. The Director finds the
proposed change to be substantively identical to and no less effective
than 30 CFR 843.13(a)(2) concerning pattern of violations.
47. CSR Sec. 38-2-20.5 Civil Penalty Determinations
Paragraph (b) has been revised to provide that the Director shall,
for ``any'' cessation order, assess a civil penalty in accordance with
Sec. 22-3-17(a) of the WVSCMRA for each day of continuing violation,
except that such penalty shall not be assessed for more than 30 days.
In accordance with this change, the sentence requiring that imminent
harm cessation orders shall have an initial assessment in accordance
with subsection 20.7 of the regulations is deleted. The State now
assesses all cessation orders, including imminent harm cessation
orders, as if they were failure-to-abate cessation orders. That is,
they are assessed a civil penalty at the rate of $750 per day, for 30
days, beginning with the issuance date.
The Director finds that these proposed changes return the State
program to its former practice of assessing imminent harm cessation
orders as failure to abate cessation orders.
This practice was included in West Virginia's original permanent
program submittal, which OSM approved on January 21, 1981 (46 FR 5916-
5956). However, in 1991, West Virginia proposed to change this long-
standing practice to require that imminent harm cessation orders be
assessed according to the State's point system at CSR 38-2-20.7. The
Director did not approve this proposed change, noting that the State
failed to retain the requirement that civil penalties be assessed for
cessation orders in all instances, and that violations in imminent harm
cessation orders be assessed an additional penalty of $750 for each day
the failure to abate continues. The Director also questioned whether
the State has statutory authority to assess imminent harm cessation
orders using the point system (56 FR 58306, 58307; November 19, 1991).
Because of these deficiencies, the Director imposed a required
amendment, which is codified at 30 CFR 948.16(ddd) (Id. at 58311).
Within the current proposal to return to its former practice, West
Virginia has revised CSR 38-2-20.5(b) to require the assessment of
civil penalties for ``any'' cessation orders, in accordance with
Sec. 22-3-17(a), which requires that failure to abate cessation orders
be assessed at $750 per day for each day the failure to abate
continues. As such, imminent harm cessation orders will be assessed
penalties of $750 per day for each day a violation continues, both
before and after the target date for abatement. Therefore, the
reference to Sec. 22-3-17(a) satisfies the deficiency noted at 30 CFR
948.15(m) and the requirement at 30 CFR 948.16(ddd) concerning initial
and mandatory civil penalty assessment procedures for imminent harm
cessation orders. 30 CFR 948.16(ddd) is hereby removed.
The State also proposes to revise this paragraph to provide that if
the cessation order has not been abated within the 30-day period, the
Director shall initiate action pursuant to Sec. 22-3-17(b), (g), (h)
and (j) of the WVSCMRA as appropriate. The term ``modified'' was
deleted from previous language of this provision that read, ``* * *
abated or modified within the thirty (30) day period * * *.'' The
Director finds this revision satisfies the requirement at 30 CFR
948.16(eee). The deletion of the word ``modified'' is consistent with
the Federal regulations at 30 CFR 845.15(b)
[[Page 6528]]
concerning assessment of violations. The Director also finds that the
requirement coded at 30 CFR 948.16(fff) concerning the starting and
ending dates for civil penalty assessments is satisfied by the
reference to Sec. 22-3-17(a) of the WVSCMRA at CSR 38-2-20.5(b). 30 CFR
948.16 (eee) and (fff) are hereby removed.
48. CSR Sec. 38-2-20.6 Procedures for Assessing Civil Penalties
The State proposes to revise paragraph (d) of this subsection to
remove the restrictions on public participation at assessment
conferences. The proposed rule provides that any person may submit in
writing at the time of the assessment conference a request to present
evidence concerning the violation(s) being conferenced. Such request
must be granted by the assessment officer. The Director finds these
changes satisfy the deficiency codified at 30 CFR 948.15(m)(2) and the
requirement at 948.16(ggg). 30 CFR 948.16(ggg) is hereby removed.
Subparagraph (h) has been amended to change the citation of
Sec. 22-3-17(d)(3) or (4), to Sec. 22-3-17(d)(1) of WVSCMRA. This
change was made to be consistent with the changes made to Sec. 22-3-17;
see Finding A 11, above. The Director finds the citation changes do not
render the State program inconsistent with 30 CFR Part 845 and are
approved.
49. CSR Sec. 38-2-20.7 Assessment Rates
Paragraphs (a), (b) and (c) are revised to clarify that the
monetary denomination used in the assessment of civil penalties is
dollars. The Director finds the revisions satisfy the requirement at 30
CFR 948.16(hhh). 30 CFR 948.16(hhh) is hereby removed.
Paragraph (d) is revised to ensure that an operator is awarded good
faith only where abatement is achieved before the time set for
abatement. The Director finds these revisions satisfy the deficiency
codified at 30 CFR 948.15(m)(2) and the requirements of 948.16(iii). 30
CFR 948.16(iii) is hereby removed.
50. CSR Sec. 38-2-22 Coal Refuse
a. Subsection 22.2 to require that coal refuse disposal facilities
be designed to attain a minimum long-term static safety factor of 1.5
and a seismic factor of safety of 1.2. The Director finds the change
satisfies the requirements codified at 30 CFR 948.16(aaa). 30 CFR
948.16(aaa) is hereby removed.
b. Subsection 22.3(p) has been revised deleting the provision that
allows coal refuse piles to be constructed with slopes exceeding two
(2) horizontal to one (1) vertical. The Director finds this revision
satisfies the deficiency codified at 30 CFR 948.15(l)(2) and the
requirements of 948.16(bbb). 30 CFR 948.16(bbb) is hereby removed.
c. Subsection 22.4(f) has been amended to provide that Class A coal
refuse impoundments be designed for a minimum P100+0.12 (PMP-
P100) inches of rainfall in 6 hours and Class B coal refuse
impoundments be designed for a minimum P100+0.40 (PMP-P100)
inches of rainfall in 6 hours. The Director finds the proposed
amendments to be consistent with and no less effective than 30 CFR
816.84(b)(2).
d. Subsection 22.4(g) has been amended to add the requirement that
all impoundments meeting size or other criteria of 30 CFR 77.216(a)
must be designed and constructed to safely pass the probable maximum
precipitation (PMP) of a 24 hour storm event. The Director finds the
proposed amendment to be no less effective than 30 CFR 816.84(b)(2)
concerning the design event for coal refuse disposal impoundments
meeting or exceeding the criteria of 30 CFR 77.216(a) with one
exception. Rainfall data for design storms is usually obtained from the
U.S. Weather Service. The U.S. Weather Service's document ``Rainfall
Frequency Atlas,'' however, does not have data charts concerning PMP
for a 24-hour storm event. Without such data the standard cannot be
implemented. Therefore, the Director is requiring that West Virginia
demonstrate how the State would implement the PMP 24-hour standard, or
revise subsection 22.4(g) to require compliance with a PMP 6-hour
standard. Data for the PMP 6-hour storm event is available from the
U.S. Weather Service.
e. Subsections 22.4 (g) and (h) have been revised to allow the use
of single open channel or open channel spillways if they are of non-
erodible materials and designed to carry sustained flows or earth- or
grass-lined and designed to carry short-term, infrequent flows at non-
erosive velocities where sustained flows are not expected. The Director
finds these revisions satisfy the requirements at 30 CFR 948.16(mm). 30
CFR 948.16(mm) is hereby removed.
f. Subsection 22.5(a)(2) has been amended to provide that all coal
refuse sites be constructed and maintained so as to attain a minimum
long-term static safety factor of 1.5, and that structures that have
the capacity to impound water also attain a seismic safety factor of
1.2. The Director finds the proposed standards are consistent with the
requirements contained in 30 CFR 948.16(aaa) and can be approved.
g. Subsection 22.7(a) has been amended to require that inspections
of impounding refuse piles be made regularly, but not less than
quarterly during construction. In addition, inspections will be made
during placement and compaction of coal refuse material and during
critical construction periods. Subsection 22.7(c) is amended to provide
that impoundments not meeting MSHA size or other criteria be examined
at least quarterly. Subsection 22.7(d) is amended to provide that a
copy of each inspection or examination report be retained at or near
the mine site. The Director finds the proposed amendments to be
consistent with and no less effective than 30 CFR 816.83(d) concerning
inspections of refuse piles, 30 CFR 816.49(a)(12) concerning
impoundment examinations, and 816.49(a)(11)(iii) concerning inspection
reports.
51. CSR 38-2C-4 Training of Blasters
Section 4 has been amended to add a provision that would allow
applicants for certification or recertification to complete a self-
study course in lieu of the existing training program. Self-study
materials would be provided the State. While there is no direct Federal
counterpart, the Director finds the proposed language is consistent
with 30 CFR 850.13 concerning the training of blasters.
52. CSR 38-2C-5 Examination for Certification of Examiner/Inspector
and Certified Blaster
Subsections 5.1 and 5.2 are amended to add that the examination for
certified blaster will also test on information contained in the self-
study course established by Sec. 38-2C-4 as an option to completing the
refresher training course. While there is no Federal counterpart, the
Director finds the proposed language is not inconsistent with 30 CFR
850.13 concerning training of blasters.
53. CSR 38-2C-8.2 Refresher Training Course/Self-study Course
This subsection is amended to allow the completion of the self-
study course established by Sec. 38-2C-4 as an option to completing the
refresher training course. While there is no Federal counterpart, the
Director finds the proposed language is not inconsistent with 30 CFR
850.13 concerning training of blasters.
54. CSR 38-2C-10.1 Violations by a Certified Blaster
WVDEP proposes to remove language authorizing the Director to issue
a cessation order and/or take other action as provided by the WVSCMRA
Sec. 22-3-16 and 17 when a certified blaster is in violation of WVSCMRA
Sec. 22-3-1. The
[[Page 6529]]
Director retains authority to issue a notice of violation. While the
Federal regulations do not specifically provide for the issuance of
either notice of violations or cessation orders against certified
blasters, the Director finds the proposed changes are not inconsistent
with 30 CFR 850.15(b) concerning suspension and revocation of blaster
certification.
55. CSR 38-2C-11.1 Penalties
This subsection is amended to authorize the issuance of an order to
suspend a blaster's certification based on clear and convincing
evidence of a violation, and to provide for a hearing to show cause why
a blasters certification should not be suspended. Deleted from this
subsection and from subsection 11.2, and Sec. 38-2C-12 are reference to
cessation orders. The Director finds the proposed changes to be
consistent with and no less effective than 30 CFR 850.15(b) concerning
suspension and revocation of blaster certification.
56. CSR 38-2D-4.4 Reclamation Objectives and Priorities
This subsection is amended to clarify its objectives and priorities
for abandoned mine lands reclamation projects by indicating the
provision applies to ``past'' coal mining practices which may or may
not constitute and extreme danger. The Director finds the proposed
change to be no less stringent than section 403(a)(2) of SMCRA
concerning eligible lands and water.
57. CSR 38-2D-6.3(a) Acceptance of Gifts of Land
This section is revised to remove the requirement that the Director
accept gifts of land in accordance with Department of Justice
procedures for the acquisition of real property. The Director finds the
deletion does not render the West Virginia program less effective than
30 CFR 879.13 concerning acceptance of gifts of land.
58. CSR 38-2D-8.7 Grant Application Procedures
This section is amended to remove provisions which describe
procedures for completing and submitting a grant application to OSM for
the reclamation of abandoned mine lands. The Director finds the
proposed deletions do not render the West Virginia program less
effective than the grant application procedures at 30 CFR 886.15 which
contain no counterparts to the deleted language.
IV. Summary and Disposition of Comments
Public Comments
The Director solicited public comments and provided an opportunity
for public hearings on the proposed amendment on three separate
occasions. Public hearings were held on September 7, 1993, October 27,
1994, and May 30, 1995, (Administrative Record Nos. WV-906, WV-958, and
WV-983). OSM has published final rule notices on the provisions
concerning bonding and the provisions concerning durable rock fills.
Therefore, comments relating to those provisions will not be discussed
here.
Following is a summary of the substantive comments. Comments
voicing general support or opposition to the proposed amendment but
devoid of any specific issues are not discussed. The summarized
comments and responses are organized by subject. All comments and
responses have been adjusted to reflect the nomenclature of the May 16,
1995, version of the regulations.
Amendment Review Process
A commenter asserted that OSM has predetermined the proposed State
amendments in the Federal Register notice dated August 12, 1993 (58 FR
42903). Specifically, the commenter stated that OSM referred to a
``satisfaction in part of a federal referenced regulation'' (see
proposed regulation changes #19, 20, 33, 35, 37, 50, and 53 in the
August 12, 1993 notice). Such statements by OSM, the commenter
asserted, indicate that a decision has already been made and that the
changes will not be objectively considered by OSM. In response, the
Director believes that the commenter has misunderstood OSM's intention.
Under 30 CFR 732.17(h)(2)(i), OSM is required to inform the public of
proposed changes to State regulatory programs, and to publish the text
or a summary of the proposed State program amendments. As part of that
notification, OSM also identifies those proposed amendments that are
related to program deficiencies that are codified in the Federal
regulations at 30 CFR 948.16 concerning required program amendments.
This is done to draw the public's attention to the fact that the State
is addressing program deficiencies. Sometimes, proposed amendments
appear to address only part of the requirements codified at 30 CFR
948.16. In those cases, OSM often states that the proposed amendment is
intended to satisfy a portion of the requirements of a specific
paragraph codified at 30 CFR 948.16. In no way does such a statement by
OSM mean, or imply, that OSM has predetermined whether or not the
proposed amendment is approvable by OSM.
No Federal Counterpart Provisions
Some commenters made the assertion that in situations where there
are no Federal counterparts to the proposed State provisions that the
proposed provisions should not be of concern to OSM. In response, the
Director notes that, under 30 CFR 732.17, the State must submit and OSM
must review changes to approved State programs. In those cases where
there are no direct Federal counterparts to the proposed State
provisions, OSM will make a determination, under 30 CFR 732.15 (a) and
(c), of whether or not the State provisions are in accordance with
SMCRA and consistent with the Federal regulations, and that the
proposed State provisions would not interfere with or preclude
implementation of SMCRA or the Federal regulations.
Statutes
Sec. 22-3-13(b)(10) Performance standards: The commenter stated
that the charge to avoid acid or toxic mine drainage implies that you
have to avoid it at all costs, and that you can't have any alternative.
In response, the Director notes the provision is substantively
identical to section 515(b)(10)(A) of SMCRA (see Finding A9).
Sec. 22-3-19 Permit renewal and revision: A commenter stated that
the proposed renewal fee is required only when the operator is going to
continue active mining. Also, that a fee is not required for any
reclamation work, including regrading and certainly not needed for the
grass to grow. In response, the Director notes that under the proposed
rules at CSR 38-2-3.27(a), the WVDEP may waive, under specified
conditions, the requirements for permit renewal if coal removal is
completed. Therefore, the $2000 filing fee may not affect permittees
with only reclamation to be done.
Sec. 22-3-19(a)(2) Permit renewal and revision: The commenter
stated that the amended statute remains more than a bit fuzzy as to
whether or not the additional land area will be subject to the
procedural requirements of a new permit, i.e., public notice, review
and comment. The Director disagrees. The proposed language and the
State's June 16, 1994 (WV-923) clarification letter, both clearly state
that new areas being added to a permit at renewal will be subject to
the full permitting requirements of the West Virginia program,
including public review, notice, and comment.
[[Page 6530]]
Sec. 22-3-28 Special reclamation permits: The commenter said that
this section should be removed from the State program even though the
State has expressed interest in leaving it in the State program in the
event that OSM will, in the future, approve such special permits. In
response, the Director is not acting on this provision, at this time,
because the State has not made any substantive changes to this section.
The State will be notified via the 30 CFR part 732 process that the
provisions are inconsistent with SMCRA and should be removed.
Rules
Rulemaking Authority
A commenter stated that some of the proposed rules exceed the
authority granted to the Division under WV Code Sec. 22-3-11(a) to the
extent that they attempt to amend 38 CSR Secs. 14.8 (steep slope
mining) and 14.15 (backfilling and regrading). The commenter stated
that the legislation that authorized the Division to promulgate the
site-specific bonding regulations provided for a special exception from
the normal rulemaking procedure (allowing the Division to proceed to
final adoption without submission to the Legislature) specifically for
the purpose of implementing a new bonding system, and not for any other
amendments. In response, the Director notes that the West Virginia
statutes at Sec. 22-3-2 and Sec. 22-3-13(d) authorize the director of
the division of environmental protection to promulgate, administer and
enforce rules pursuant to the West Virginia Surface Coal Mining and
Reclamation Act. The rules the commenter referred to (CSR 38-2-14.8 and
14.15) were promulgated as legislative rules, and were approved by the
State legislature. See Findings B32 and B36 above for the Director's
findings on those amended rules.
General
CSR 38-2-1.2 Applicability: The commenter stated that this
provision should not have retroactive application. See Section V,
Director's Decision, below, for a complete explanation of the
Director's retroactive approval.
Definitions
CSR 38-2-2.20 Chemical treatment: Commenters are concerned that
this definition, which separates passive treatment from the definition,
will lead to problems related to bond release. The specific concern is
that if bond release is authorized in cases where passive treatment
system (e.g., limestone drains) are maintaining water quality
standards, then the risk is high that water quality will degrade after
bond release as the passive treatment systems lose effectiveness.
Another commenter said that there is no Federal counterpart and it
should be approved. This commenter said that the definition of
``chemical treatment'' applies to all facets of the regulations, not
just to bond release. The Director has approved the definition of
``chemical treatment'' except to the extent that the definition would
allow bond release where passive treatment systems are used to achieve
compliance with applicable effluent standards (see Finding B-2a above).
Although OSM encourages the use of passive treatment systems as an
integral part of surface mining and reclamation operations, the
effectiveness and reliability of such passive systems to control
pollutional discharges on a long-term basis has not been proven to the
extent that they can be considered an effective basis for bond release.
Permits
CSR 38-2-3.7 Excess spoil: The commenters object to the removal of
the authority to approve alternative design requirements for excess
spoil fills. The commenter stated that identical regulations have been
approved in the Virginia program at 480-03-19-816.73. In response, the
Director notes that the Virginia provision was approved because it
specifies criteria that such alternative designs must meet. Such
criteria are not present in the West Virginia rule, and the Director
did not approve the rule.
CSR 38-2-3.12 Subsidence control plan: One commenter expressed
concern as to whether or not State law is still a consideration on the
obligation to support the surface (from subsidence) under CSR 38-2-
16.2. Another commenter stated that nothing in State SMCRA has changed
to provide authority for removing the State law limitation found in the
State regulation. In response, the Director notes that the deletion of
the reference to state law is intended to clarify that the requirements
of CSR 38-2-16.2 are not to be diminished by other State law. The
amended State language is a response to the amendments made to Federal
SMCRA by the Energy Policy Act of 1992. The Energy Policy Act added new
section 720 to SMCRA to provide for the repair or compensation for
material damage caused by subsidence, and the replacement of drinking,
domestic, or residential water supplies damaged by underground coal
mining operations. The Federal regulations implementing section 720 of
SMCRA were published in the Federal Register on March 31, 1995 (60 FR
16722-16751). Neither section 720 of SMCRA nor the implementing
regulations defer to State law concerning the requirements to repair or
compensate for subsidence-caused material damage to dwellings and
related structures or the replacement of water supplies damaged by
underground coal mining operations.
CSR 38-2-3.14 Removal of abandoned coal waste piles: The commenter
apparently disagrees with the proposed provision concerning the need
for a permit if the coal waste material can be classified as coal using
the BTU standard in ASTM D 388-88. In response, the Director notes that
if a mined deposit is coal, a permit is required. Section 506 of SMCRA
requires a permit if coal mining operations are to be conducted. The
Federal regulations at 701.5 define surface mining activities to
include the recovery of coal from deposits not in their original
geologic location, which would include the reprocessing of abandoned
waste piles.
CSR 38-2-3.27 Permit renewals: The commenter disagrees with the
proposed language that allows the State to waive the requirements for
permit renewal only where all coal extraction is completed and all
backfilling and regrading will be completed within 60 days prior to the
expiration date of the permit. The commenter states that Federal law
only requires a permit in order to ``mine'' and does not require that
reclamation be permitted. In response, the Director notes that the
proposed State provision is consistent with and is a reasonable
interpretation of the Federal requirements at 30 CFR 773.11(a)
concerning the requirements to obtain permits. See Finding B.14 above
for the Director's approval of this provision.
CSR 38-2-3.28 Permit revisions: The commenter disagrees with the
amendments that would allow the State to determine if an updated
probable hydrologic consequences (PHC) determination is necessary, or
if other permit revisions are necessary. In response, the Director
notes that the State requirements concerning the PHC are consistent
with the Federal requirements at 30 CFR 780.21(f)(4). The State
provision concerning reasonable revisions is consistent with the
Federal requirements at 30 CFR 774.11(b) concerning review of permits.
CSR 38-2-3.28 Permit revisions: The commenter stated that new
provisions cannot be applied retroactively. See Section V, Director's
Decision, below, for a complete explanation of the Director's
retroactive approval.
[[Page 6531]]
CSR 38-2-3.29 Incidental boundary revisions (IBR's): The commenter
stated that it should be mandatory for the State to require an
advertisement and a ten day public comment period for any IBR greater
than 50 acres in size that might be granted pursuant to the waiver
provision at the end of CSR 38-2-3.29(b)(2). The Director does not
agree. A requirement to advertise in all such cases would eliminate the
possibility of the regulatory authority exercising reasonable
discretion in the conduct of its responsibilities. Also, neither SMCRA
nor the Federal regulations require notice or comment on proposed
IBR's. The approved State program does, however, provide for appeals of
decisions by the regulatory authority under CSR 38-2-18.
CSR 38-2-3.34(b) and (g) Improvidently issued permits: The
commenter disagrees with these amendments and stated that the
provisions appear to be for the purpose of covering agency mistakes,
with no regard for the coal operator. The Director disagrees. As noted
in Finding B21, above, the proposed changes are consistent with the
language and intent of the Federal regulations at 30 CFR 773.20
concerning improvidently issued permits and 773.15 concerning review of
permit applications.
Roads
CSR 38-2-4 Haulageways or Access Roads: The commenter said there
is no Federal requirement in this area. The Director disagrees. The
counterpart Federal provisions are at 30 CFR 816.150 concerning roads;
general, and 816.151 concerning primary roads.
CSR 38-2-4.4 Infrequently used access roads: The commenter
disagrees with the need for the proposed language. The commenter stated
that the key to the requirements for infrequently used access roads is
use and frequency of use. Unless the road is used frequently, the
operator should not be required to spend large sums of money on
extensive plans, pipes, drains and other costly items. In response, the
Director notes that a road's impact on the environment is only partly
derived from the use of the road. The degree of alteration of the
natural land configuration of the road itself can be the greater source
of environmental harm. The proposed rules are designed to minimize
those impacts.
Drainage and Sediment Control
CSR 38-2-5.5 Permanent impoundments: The commenter stated that
permanent impoundments should be encouraged, not restricted. In
response, the Director notes that the provisions concerning the
retention of permanent impoundments both authorize the retention of
such impoundments and ensure sound future maintenance.
Blasting
CSR 38-2-6.3(a) Public notice of blasting operations: The commenter
stated that all natural gas pipelines should be included within the
definition of ``public utilities'' at subsection 6.3(a) and be notified
of the blasting schedule. Without such notice, the commenter stated,
the opportunity for significant input on the specifics of the blasting
plan may be lost without written notice at the permit stage. As
discussed in Finding B26b, above, the proposed State language is
substantively identical to and, therefore, no less effective than the
Federal regulations at 30 CFR 817.64(a). The Director agrees that such
notice would be valuable, however, and encourages the commenter to
discuss this matter with the regulatory authority.
Insurance and Bonding
CSR 38-2-11.1 Insurance: The commenter stated that the amendment
is unclear and that it seems as though blasting liability continues
after blasting is continued. The Director disagrees. The State language
clearly states that insurance coverage for blasting damage may be
terminated prior to final bond release, but not before blasting
activities have ceased. The provision also requires that even though
blasting coverage may be terminated, the full amount of the liability
coverage (from subsection 11.1(a)) shall continue throughout the life
of the permit (or renewal).
Notice of Intent To Prospect
CSR 38-2-13.6(a)(7), (f)(6) Prospecting roads: The commenter
recommended that the proposed language not be approved. There is no
Federal counterpart for prospecting roads, the commenter asserted, and
the proposed requirements would be expensive and not cost effective for
such roads which are often infrequently used. In response, the Director
notes that requirements for prospecting roads are intended to be
counterparts to the Federal requirements for roads at 30 CFR 816.150,
and as noted in Finding B30, above, the amendments are approved. 30 CFR
815.15(b) concerning coal exploration standards requires the
application of 816.150(b) through (f) for coal exploration which causes
substantial disturbance.
Performance Standards
CSR 38-2-14.5(h) Waiver of water supply replacement: The commenter
stated that no waivers of water supply should be allowed because they
would be inconsistent with the Energy Policy Act of 1992. In response,
and as discussed above in Finding B31, above, the Director has
determined that the proposed language is not inconsistent with SMCRA
and the Federal regulations except to the extent that the proposed
waiver would not be implemented in accordance with the definition of
``Replacement of water supply'' at 30 CFR 701.5. In addition, the
Director is requiring that the West Virginia program be further amended
to clarify that under CSR 38-2-14.5(h), the replacement of water supply
can only be waived under the conditions set forth in the definition of
``Replacement of water supply,'' paragraph (b), at 30 CFR 701.5.
CSR 38-2-14.8 Steep slope mining: A commenter stated that the
downslope prohibition (in 14.8(a)(1)) seems to be a new condition and
does not take into consideration the unusual geologic conditions of the
southern West Virginia coal fields. In response, the Director notes
that, as discussed above in Finding B32, the amendment is intended to
prevent the placement of spoil on natural intervening slopes in steep
slope operations. The amendment renders the State provision
substantively identical to 30 CFR 816.107(b)(1), which prohibits spoil
placement on the downslope.
A commenter suggested that, to improve clarity of the new language
at CSR 38-2-14.8(a)(1), the phrase ``multiple seam operations'' be
amended to read ``multiple seam contour operations.'' The Director
notes that, while the change would improve clarity, contour mining is
logically implied by the amendments and the State need not be required
to revise the language.
A commenter also stated disagreement with the prohibition at CSR
38-2-14.8(a)(4) concerning placement of woody material in the backfill.
The commenter asserted that when done right, such placement does not
cause stabilization problems. In response, the Director notes that the
proposed language is substantively identical to the Federal regulations
at 30 CFR 816.107(d). The State language does allow the placement of
woody materials in the fill if the regulatory authority first
determines that the method of placement of woody material will not
deteriorate the future stability of the backfilled area.
CSR 38-2-14.15 Contemporaneous reclamation standards: The
commenter
[[Page 6532]]
made numerous comments and provided recommended language concerning
these provisions. While the comments and recommendations may have
merit, the commenter is not asserting that any of the proposals are
inconsistent with SMCRA or the Federal regulations. Since the Director
need only decide whether amendments are in accordance with SMCRA and
the Federal regulations, he will not require the State to add language
to its program if it is not needed to bring the program into compliance
with Federal law and regulations. As noted in Finding B36, above, the
Director has determined that the State's proposed language is
consistent with the Federal regulations at 30 CFR 816.100 concerning
contemporaneous reclamation standards and can be approved (see Finding
B36, above).
CSR 38-2-14.19(d) Disposal of noncoal mine wastes: The commenter
recommended that OSM disapprove the proposal to allow the wind-rowing
of timber below the toe of the outslope. The commenter stated that OSM
has disapproved this practice in the past and should do so once again.
As explained above in Finding B39, the Director is approving the
proposed amendments except to the extent that the amendments would
allow wind-rowing on the downslope in steep slope areas. Such wind-
rowing in steep slope areas would be less effective than 30 CFR
816.107(b)(3).
Subsidence Control
CSR 38-2-16.2(c)(2) Subsidence control; surface owner protection:
The conmenter stated that deletion of the phrase ``To the extent
required under applicable provisions of State law'' should not have
been proposed because court decisions negate the validity of the
disapproval of that phrase and the disapproval at 30 CFR 948.15(k)(11).
In response, the Director notes that the Energy Policy Act of 1992
amended SMCRA at new section 720 to require the repair or compensation
for subsidence-caused material damage to certain structures. The new
SMCRA provision does not provide for a deference to State law.
Inspection and Enforcement
CSR 38-2-20.6 Procedure for assessing civil penalty: Two
commenters stated that this section should be modified to ensure that
it is clear that citizens with information and interests which support
a coal operation or operator should be equally free to participate in
assessment conferences as are citizens who are opposed. The Director
disagrees that the State language is unclear. The State provision
clearly states that ``[a]ny person, other than the operator and
Division of Environmental Protection representives, may submit in
writing at the time of the conference a request to present evidence
concerning the violation(s) being conferenced.'' Clearly, the provision
does not state that the evidence must be either in support of or
against the violation(s) being conferenced. The commenters also
questioned why ``any'' person could participate in the conference, and
stated that the Division of Environmental Protection should have the
discretion of allowing those they feel are genuinely affected by the
proceeding to attend, not just anybody or everybody who might petition.
In response, the Director notes that subsection CSR 38-2-20.6(e)
provides that the conference assessment officer shall consider all
relevant information on the violation(s). Therefore, the assessment
officer has some discretion to determine what information is relevant
to the violation(s) being conferenced.
CSR 38-2-22 Coal Refuse: The commenter stated that this section
should be amended to clarify that the coal refuse regulations do not
apply to coal refuse placed in the backfill, but only to isolated and
distinct structures designed solely or primarily for coal refuse
disposal. The Director partially agrees. 30 CFR 816.81 concerning coal
mine waste general requirements, provides that all coal mine waste
disposed of in an area other than the mine workings or excavations
shall be placed in new or existing disposal areas within the permit
area. The regulations at 30 CFR 816.83 provide the standards for coal
mine waste refuse piles, with particular emphasis on stability and
drainage control. Coal mine waste that is placed in the backfill,
however, presents potential acidity and toxicity problems that must be
addressed just as those problems must be addressed if the coal waste is
placed in a separate structure. The State has addressed those potential
problems in its rules concerning coal refuse in the backfill at CSR 38-
2-14.15(m) (see Finding B36, above). In designing those regulations,
the State used applicable standards from 30 CFR 816.81 concerning coal
mine waste. In approving the proposed State provisions, OSM compared
them to applicable parts of 30 CFR 816.81 as the primary standards for
preventing the formation of acidity and toxicity.
CSR 38-2-22.4(f) Design storm specifications: The commenter
supports the proposed changes and stated that those changes bring the
State standards in line with Federal standards. In response, the
Director notes that as explained in Finding B50c, above, the proposed
amendments are approved except to the extent that the new standards
apply to impoundments that meet the size or other criteria of 30 CFR
77.216(a). 30 CFR 816.84(b)(2) provides that impoundments that meet the
size or other criteria of 77.216(a) must be designed for a probable
maximum precipitation (PMP) of a six-hour or greater precipitation
event.
Federal Agency Comments
Pursuant to section 503(b)(1) of SMCRA and 30 CFR 732.17(h)(11)(i),
OSM solicited comments on the proposed amendment from various Federal
agencies with an actual or potential interest in the West Virginia
program on four different occasions (Administrative Record Nos. WV-891,
WV-897, WV-936, and WV-942). Comments were received from the U.S.
Bureau of Land Management, the U.S. Bureau of Mines, and the U.S. Army
Corps of Engineers. These Federal agencies acknowledged receipt of the
amendment, but generally had no comment or acknowledged that the
revisions were satisfactory.
The Mine Safety and Health Administration (MSHA) commented that CSR
38-2-14.15(m) concerning coal processing waste disposal, and CSR 38-2-
14.19(d) concerning disposal of non-coal waste may be less restrictive
than MSHA's requirements. For example, MSHA stated that MSHA's minimum
design criteria for refuse piles (30 CFR 77.214 and 77.215) have
provisions requiring the placement of clay over any exposed coal beds
before constructing a refuse pile, and also prohibit the placement of
any extraneous combustible materials in a refuse pile. In response, the
Director notes that the State rules at CSR 38-2-14.15(m) provide that
where approval for placing coal processing waste in the backfill has
been granted, such placement shall be done in accordance with the
compaction requirements of CSR 38-2-22.3(p). CSR 38-2-22.3(p) requires
MSHA approval of any alternate construction plans for refuse piles in
compacted layers exceeding two feet in thickness. In addition, the
proposed language provides that the coal processing waste will not
contain acid-producing or toxic-forming material. Also, CSR 38-2-
14.19(c) provide that noncoal mine waste shall not be deposited in a
refuse pile or impounding structure, nor shall an excavation for a
noncoal mine waste disposal site be located within eight feet of any
coal outcrop or coal storage area. In addition, under both of these
rules,
[[Page 6533]]
the coal processing waste would be placed in the backfill, a location
from which the coal has already been removed. Finally, nothing in CSR
38-2-14.15(m) or 14.19 excuses the operator from compliance with
applicable MSHA requirements. The Director recognizes the applicability
of 30 CFR 77.214 and 77.215 to refuse piles.
Environmental Protection Agency (EPA)
Pursuant to 30 CFR 732.17(h)(11)(ii), OSM is required to obtain the
written concurrence of the EPA with respect to those provisions of the
proposed program amendment that relate to air or water quality
standards promulgated under the authority of the Clean Water Act (33
U.S.C. 1251 et seq.) or the Clean Air Act (42 U.S.C. 7401 et seq.).
On July 2 and August 3, 1993 (Administrative Record Nos. WV-892 and
WV-896), and June 29, 1995 (Administrative Record No. WV-999) OSM
solicited EPA's concurrence on the proposed amendments. On October 17,
1994 (Administrative Record No. WV-949), EPA gave its written
concurrence with a condition on subsection 5.4(b)(2) of West Virginia's
regulations. Subsection CSR 38-2-5.4(b)(2) is not being amended, and is
not, therefore, a subject of this rulemaking. EPA also submitted
comments concerning various State provisions that are not being
amended. Since the provisions are not being amended, EPA's comments
will not be addressed here.
EPA also responded by letter dated January 31, 1996, with its
concurrence with the proposed amendments (Administrative Record No. WV-
1019). In that letter, EPA provided comments in support of CSR 38-2-
14.15(m) concerning the prohibition of acidic coal processing waste
being placed in backfills, and Sec. 22B-3-4(c) concerning variances to
water quality standards for coal remaining operations.
V. Director's Decision
Based on the above findings, and except as noted below, the
Director is approving with certain exceptions and additional
requirements the proposed amendments as submitted by West Virginia on
June 28, 1993, as modified on July 30, 1993; August 18, 1994; September
1, 1994; and May 16, 1995. As discussed in the findings, there are some
exceptions to this approval, and those are noted below. The Director is
also requiring the State to make additional changes to certain
provisions to ensure that the program is no less stringent than SMCRA
and no less effective than the Federal regulations. Those requirements
are also noted below.
At Sec. 22-3-13(e)--The authorization to promulgate rules that
permit variances from approximate original contour is approved to the
extent that it only applies to steep slope areas as defined at WVSCMRA
Sec. 22-3-13(d). The Director is requiring that West Virginia amend its
program to limit such variances to industrial, commercial, residential,
or public alternative postmining land use, in accordance with section
515(e)(2) of SMCRA.
At Sec. 22B-1-7(d)--The authorization to allow temporary relief
where the appellant demonstrates that the executed decision appealed
from will result in the appellant suffering an ``unjust hardship'' is
not approved. The Director is requiring that West Virginia further
amend Sec. 22B-1-7(d) to be consistent with SMCRA sections 514(d) and
525(c).
At Sec. 22B-1-7(h)--The authorization that would allow the Surface
Mining Board to consider economic feasibility of treating or
controlling discharges from surface coal mining operations in appeals
from decisions of an order, permit, or official action is not approved.
The Director is requiring that West Virginia further amend Sec. 22B-1-
7(h) to be no less stringent than SMCRA section 515(b)(10) and no less
effective than the Federal regulations at 30 CFR 816.42, by requiring
discharges to be controlled or treated without regard to economic
feasibility.
At CSR 38-2-1.2(c)(1)--The termination of jurisdiction over an
initial program site except to the extent that subsection (c)(1) does
not require compliance with the Federal initial program regulations at
Subchapter B or to the West Virginia permanent program as a
prerequisite to the termination of jurisdiction. The Director is
requiring that the State further amend subsection (c)(1) to require
compliance with the Federal initial program regulations at Subchapter B
or the West Virginia permanent regulatory program rules as a
prerequisite to the termination of jurisdiction over an initial program
site.
At CSR 38-2-2.92--The definition of ``chemical treatment'' except
to the extent that the definition of ``chemical treatment'' would allow
bond release where passive treatment systems are used to achieve
compliance with applicable effluent limitations. The Director is
requiring that West Virginia further amend the West Virginia program to
clarify that bond may not be released where passive treatment systems
are used to achieve compliance with applicable effluent limitations.
At CSR 38-2-3.1(o)--The grouping of ownership and control
information is approved to the extend that all permit applicants which
maintain centralized ownership and control files are also required to
comply with all of the informational provisions contained in CSR 38-2-
3.1.
At CSR 38-2-4.2(b)--Is approved to the extent that the provisions
pertain to all roads, whether they are within or crossing a stream.
At CSR 38-2-4.4--Is approved except to the extent that it exempts
infrequently used access roads from the requirements of subsection 4.9.
The Director is also requiring the State to amend its program to
require that all infrequently used access roads comply with CSR 38-2-
4.9.
At CSR 38-2-4.11--Is approved to the extent that the provision does
not exclude facilities that are included within the definition of
``surface coal mining operations'' at 30 CFR 700.5.
At CSR 38-2-14.5(h)--Is approved except to the extent that the
proposed waiver would not be implemented in accordance with the
definition of ``Replacement of water supply'' at 30 CFR 710.5. The
Director is requiring that West Virginia further amend CSR 38-2-14.5(h)
and amend Sec. 22-3-24(b) to clarify that the replacement of water
supply can only be waived under the conditions set forth in the
definition of ``Replacement of water supply,'' paragraph (b), at 30 CFR
701.5.
At CSR 38-2-14.19--Is not approved to the extent that windrowing
would be allowed on the downslope in steep slope areas. In addition,
the Director is requiring that West Virginia further amend CSR 38-2-
14.19(d) to clarify that windrowing will not be allowed on the
downslope in steep slope areas.
At CSR 38-2-22.4(g)--The Director is requiring that West Virginia
demonstrate how the State would implement the PMP 24-hour standard, or
revise subsection 22.4(g) to require compliance with a PMP 6-hour
standard.
The Director is amending 30 CFR Part 948 to codify this decision.
With respect to those changes in State laws and regulations approved in
this document, the Director is making the effective date of this
approval retroactive to the date upon which they took effect in West
Virginia for purposes of State law. He is taking this action in
recognition of the extraordinarily complex nature of the review and
approval process for this amendment and the need to affirm the validity
of State actions taken during the interval between State implementation
and the decision being announced today. Retroactive approval of these
provisions is in keeping with the purposes of SMCRA relating to State
primacy and environmental protection.
[[Page 6534]]
To assure consistency with 30 CFR 732.17(g), which state that
``[no] * * * change to laws or regulations shall take effect for
purposes of a State Program until approved as an amendment,'' The
Director's approval of the revisions, as noted in the codification
below, includes West Virginia's previous and ongoing implementation of
these revisions.
Retroactive approval of the revisions is appropriate because no
detrimental reliance on the previous West Virginia laws or regulations
has occurred for the period involved. OSM is approving these changes
back only to the dates from which West Virginia began enforcing them.
As support for this decision, the Director cites the rationale employed
by the United States Claims Court in McLean Hosp. Corp. v. United
States, 26 Cl.Ct. 1144 (1992). In McLean, the court held that
retroactive application of a rule was appropriate where the rule was
identical in substance to guidelines which had been in effect anyway
during the period in question. Therefore, the Court concluded, the
plaintiff could not ``claim that it relied to its detriment on a
contrary rule.'' 26 Cl.Ct. at 1148. Likewise, since the Director is
approving changes which the State has been enforcing there can be no
claim of detrimental reliance on any contrary West Virginia Statutes or
regulations in this instance.
Making portions of the approval retroactive does not require
reopening of the public comment period under section 553(b)(3) of the
Administrative Procedure Act (APA), 5 U.S.C. 553(b)(3). The public, in
general, and the coal industry in particular have had sufficient notice
of these revised statutory and regulatory revisions to support
retroactive OSM approval. Retroactive approval constitutes an
acknowledgement of statutory and regulatory revisions which West
Virginia has been implementing since the respective approval dates of
these revisions at the State level, and would have been expected as a
natural outgrowth of the proposal. The retroactive approval does not
apply to earlier versions of these provisions to the extent that such
provisions were inconsistent with Federal requirements.
Furthermore, ``good cause'' both under section 553(b)(3)(B) of the
APA, 5 U.S.C. 553(b)(3)(B), for retroactive approval (if notice were
not sufficient) and under section 553(d)(3) of APA, 5 U.S.C. 553(d)(3),
for not delaying the effective date of the approval for 30 days after
the publication of this Federal Register decision document. As noted in
the findings above, many of these program revisions are needed to
render the West Virginia program consistent with SMCRA and no less
effective than the Federal regulations.
Failure to make OSM approval of these statutory and regulatory
provisions retroactive could cause significant disruption to the
orderly enforcement and administration by the State of the West
Virginia program. The Director believes that the desire to avoid a
significant disruption of the West Virginia program, coupled with the
lack of any prejudice to the public or to the regulated community, are
sufficient bases to constitute ``good cause.''
Effect of Director's Decision
Section 503 of SMCRA provides that a State may not exercise
jurisdiction under SMCRA unless the State submits and obtains the
Secretary's approval of a regulatory program. Similarly, 30 CFR
732.17(a) requires that the State submit any alteration of an approved
State program to OSM for review as a program amendment. Thus, any
changes to the state program are not enforceable until approved by OSM.
The Federal regulations at 30 CFR 732.17(g) prohibit any unilateral
changes to approved State programs. In oversight of the West Virginia
program, the Director will recognize only the statutes, regulations and
other materials approved by OSM, together with any consistent
implementing policies, directives and other materials, and will require
the enforcement by West Virginia of only such provisions. The
provisions that the Director is approving today will take effect on the
specified dates for purposes of the West Virginia program.
VI. Procedural Determinations
Executive Order 12866
This rule is exempted from review by the Office of Management and
Budget (OMB) under Executive Order 12866 (Regulatory Planning and
Review).
Executive Order 12778
The Department of the Interior has conducted the reviews required
by section 2 of Executive Order 12778 (Civil Justice Reform) and has
determined that, to the extent allowed by law, this rule meets the
applicable standards of subsections (a) and (b) of that section.
However, these standards are not applicable to the actual language of
State regulatory programs and program amendments since each such
program is drafted and promulgated by a specific State, not by OSM.
Under sections 503 and 505 of SMCRA (30 U.S.C. 1253 and 1255) and 30
CFR 730.11, 732.15 and 732.17(h)(10), decisions on proposed State
regulatory programs and program amendments submitted by the states must
be based solely on a determination of whether the submittal is
consistent with SMCRA and its implementing Federal regulations and
whether the other requirements of 30 CFR Parts 730, 731, and 732 have
been met.
National Environmental Policy Act
No environmental impact statement is required for this rule since
section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that agency
decisions on proposed State regulatory program provisions do not
constitute major Federal actions within the meaning of section
102(2)(C) of the National Environmental Policy Act (42 U.S.C.
4332(2)(C)).
Paperwork Reduction Act
This rule does not contain information collection requirements that
require approval by OMB under the Paperwork Reduction Act (44 U.S.C.
3507 et seq.).
Regulatory Flexibility Act
The Department of the Interior has determined that this rule will
not have a significant economic impact on a substantial number of small
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).
The State submittal which is the subject of this rule is based upon
counterpart Federal regulations for which an economic analysis was
prepared and certification made that such regulations would not have a
significant economic effect upon a substantial number of small
entities. Accordingly, this rule will ensure that existing requirements
previously promulgated by OSM will be implemented by the State. In
making the determination as to whether this rule would have a
significant economic impact, the Department relied upon the data and
assumptions for the counterpart Federal regulations.
List of Subjects in 30 CFR Part 948
Intergovernmental relations, Surface mining, Underground mining.
Dated: February 8, 1996.
Allen D. Klein,
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:
[[Page 6535]]
PART 948--WEST VIRGINIA
1. The authority citation for Part 948 continues to read as
follows:
Authority: 30 U.S.C. 1201 et seq.
Sec. 948.12 [Amended]
2. Section 948.12 is amended by removing and reserving paragraphs
(a), (c), (d), (g) and (h).
Sec. 948.13 [Amended]
3. Section 948.13 is amended by removing and reserving paragraphs
(a), (b), (e) and (f).
4. Section 948.15 is amended by adding paragraph (p) to read:
Sec. 948.15 Approval of regulatory program amendments.
* * * * *
(p)(1) General description and effective dates. Except as noted in
paragraph (p)(3) of this section, the amendment submitted by West
Virginia to OSM by letter dated June 28, 1993, as revised by submittals
dated July 30, 1993; August 18, 1994; September 1, 1994; and May 16,
1995, is approved to the extent set forth in paragraph (p)(2) of this
section. The effective dates of the Director's approval of the
provisions identified in paragraph (p)(2) of this section are:
(i) July 1, 1990, for those statutory amendments contained in HB-
202;
(ii) June 7, 1991, for those amendments contained in SB-579;
(iii) October 16, 1991, for those amendments contained in HB-217;
(iv) July 1, 1994, for those amendments contained in HB-4030;
(v) June 11, 1994, for those amendments contained in HB-4065;
(vi) February 10, 1995, for those amendments contained in SB-250;
(vii) March 10, 1995, for those amendments contained in HB-2134;
(viii) June 9, 1995, for those amendments contained in SB-287 and
HB-2523;
(ix) May 2, 1993, for those rule changes submitted on June 28, 1993
(WV-889);
(x) June 1, 1991, for those changes submitted on July 30, 1993 (WV-
893) which were not identified as changes in the June 28, 1993,
submittal (WV-889);
(xi) June 1, 1994, for those rule changes submitted on September 1,
1994 (WV-937);
(xii) May 1, 1995, for those blaster certification revisions
submitted on May 8, 1995 (WV-979);
(xiii) June 1, 1995, for those abandoned mine land revisions
submitted May 8, 1995 (WV-979);
(xiv) June 1, 1995, for all remaining changes submitted on May 16,
1995 (WV-979).
(2) Approved revisions. Except as noted in paragraph (p)(3) of this
section, the following provisions of the amendment described in
paragraph (p)(1) of this section are approved:
(i) Revisions to the West Virginia Surface Coal Mining and
Reclamation Act
1. Sec. 22-1-4 through 8--Division of Environmental Protection.
2. Sec. 22-2--Abandoned Mine Lands and Reclamation Act.
3. Sec. 22-3-3--Definitions.
4. Sec. 22-3-5--Surface Mining Inspectors and Supervisors.
5. Sec. 22-3-7--Notice of Intent to Prospect.
6. Sec. 22-3-8--Surface Mining Reclamation Permit.
7. Sec. 22-3-9--Permit Application Requirements.
8. Sec. 22-3-9a--Permit to Mine Two Acres or Less. [Deleted]
9. Sec. 22-3-13--Performance Standards to the extent that subsection
13(e) only applies to steep slope areas as defined in Sec. 22-3-
13(d).
10. Sec. 22-3-15--Inspections.
11. Sec. 22-3-17--Notice of Violation.
12. Sec. 22-3-18--Permit Approval.
13. Sec. 22-3-19--Permit Renewal and Revision Requirements.
14. Sec. 22-3-22--Designation of Areas Unsuitable for Mining.
15. Sec. 22-3-26--Surface Mining Operations Not Subject to the Act.
16. Sec. 22-3-28--Special Permits for Abandoned Coal Waste Piles.
17. Sec. 22-3-40--National Pollutant Discharge Elimination System
(NPDES).
18. Sec. 22B-1-4 through 12--Environmental Boards; General Policy
and Purpose, except language at Sec. 22B-1-7(d) which allows
temporary relief where the appellant demonstrates that the executed
decision appealed from will result in the appellant suffering an
``unjust hardship'' and except language at Sec. 22B-1-7(h) which
allows the Surface Mining Board to consider economic feasibility of
treating or controlling discharges from surface coal mining
operations in appeals from decisions of an order, permit, or
official action.
19. Sec. 22B-3-4--Environmental Quality Board.
20. Sec. 22B-4--Surface mine board.
(ii) Revisions to the West Virginia Surface Mining Reclamation
Regulations
1. CSR Sec. 38-2-1.2--Applicability; except subsection 1.2(c)(1)
to the extent that it does not require compliance with the Federal
initial program regulations at Subchapter B or the West Virginia
permanent regulatory program as a prerequisite to the termination of
jurisdiction over an initial program site.
2. CSR 38-2-2--Definitions; except to the extent that the
definition of ``chemical treatment'' at CSR 38-2-2.20 would be
applied in the context of section CSR 38-2-12.2(e) to authorize bond
release for sites with discharges that require passive treatment to
meet discharge standards.
3. CSR Sec. 38-2-3.1(o)--Application information to the extent
that all permit applicants which maintain centralized ownership and
control files are also required to comply with all of the
informational provisions contained in CSR 38-2-3.1.
4. CSR Sec. 38-2-3.4--Maps.
5. CSR Sec. 38-2-3.6--Operation Plan.
6. CSR Sec. 38-2-3.7--Excess Spoil.
7. CSR Sec. 38-2-3.8--New and Existing Structures and Support
Facilities.
8. CSR Sec. 38-2-3.12--Subsidence Control Plan.
9. CSR Sec. 38-2-3.14--Removal of Abandoned Coal Waste Piles.
10. CSR Sec. 38-2-3.15--Approved Person.
11. CSR Sec. 38-2-3.16--Fish and Wildlife Resources.
12. CSR Sec. 38-2-3.25--Transfer, Assignment or Sale of Permit
Rights.
13. CSR Sec. 38-2-3.26--Ownership and Control Changes.
14. CSR Sec. 38-2-3.27(a)--Permit Renewals and Permit
Extensions.
15. CSR Sec. 38-2-3.28--Permit Revisions.
16. CSR Sec. 38-2-3.29--Incidental Boundary Revisions (IBRs).
17. CSR Sec. 38-2-30--Variances.
18. CSR Sec. 38-2-3.31(a)--Exemption for Government Financed
Highway or Other Construction.
19. CSR Sec. 38-2-3.32--Permit Findings.
20. CSR Sec. 38-2-3.33--Permit Conditions.
21. CSR Sec. 38-2-3.34--Improvidently Issued Permits.
22. CSR Sec. 38-2-4--Haulageways, Roads, and Access Roads:
22a. CSR Sec. 38-2-4.1(a)--Road Classification system;
22b. CSR Sec. 38-2-4.2--Plans and Specifications; except CSR 38-
2-4.2(b) is approved to the extent that the provisions pertain to
all roads, whether they are within or crossing a stream;
22c. CSR Sec. 38-2-4.3--Existing Haulageways or Access Roads;
22d. CSR Sec. 38-2-4.4--Infrequently Used Access Roads; except
CSR 38-2-4.4 is approved except to the extent that it exempts
infrequently used access roads from the requirements of subsection
4.9;
22e. CSR Sec. 38-2-4.5--Construction;
22f. CSR Sec. 38-2-4.6--Drainage Design;
22g. CSR Sec. 38-2-4.7--Performance Standards;
22h. CSR Sec. 38-2-4.8--Maintenance;
22i. CSR Sec. 38-2-4.9--Reclamation;
22j. CSR Sec. 38-2-4.10--Primary Roads;
22k. CSR Sec. 38-2-4.11--Support Facilities and Transportation
Facilities except to the extent that the provision does not exclude
facilities that are included within the definition of ``surface coal
mining operations'' at 30 CFR 700.5.
22l. CSR Sec. 38-2-4.12--Certification.
23. CSR Sec. 38-2-5.2--Intermittent or Perennial Streams.
24. CSR Sec. 38-2-5.4--Sediment Control.
25. CSR Sec. 38-2-5.5--Permanent Impoundments.
26. CSR Sec. 38-2-6--Blasting;
26a. CSR Sec. 38-2-6.3(b)--Public Notice of Blasting Operations;
26b. CSR Sec. 38-2-6.6--Blasting Control for Other Structures;
26c. CSR Sec. 38-2-6.8--Preblast Survey.
27. CSR Sec. 38-2-8.1--Protection of Fish and Wildlife and
Related Values.
28. CSR Sec. 38-2-9--Revegetation.
[[Page 6536]]
29. CSR Sec. 38-2-11.1--Insurance.
30. CSR Sec. 38-2-13--Notice of Intent to Prospect.
31. CSR Sec. 38-2-14.5--Hydrologic Balance except to the extent
that the proposed waiver at subsection (h) would not be implemented
in accordance with the definition of ``Replacement of water supply''
at 30 CFR 701.5.
32. CSR Sec. 38-2-14.8--Steep Slope Mining.
33. CSR Sec. 38-2-14.11--Inactive Status.
34. CSR Sec. 38-2-14.12--Variance From Approximate Original
Contour Requirements.
35. CSR Sec. 38-2-14.14--Disposal of Excess Spoil.
36. CSR Sec. 38-2-14.15--Contemporaneous Reclamation Standards.
37. CSR Sec. 38-2-14.17--Control of Fugitive Dust.
38. CSR Sec. 38-2-14.18--Utility Installations.
39. CSR Sec. 38-2-14.19--Disposal of Noncoal Waste is not
approved to the extent that windrowing would be allowed on the
downslope in steep slope areas.
40. CSR Sec. 38-2-15.2--Backfilling and Regrading; Underground
Mines.
41. CSR Sec. 38-2-16.2--Subsidence Control; Surface Owner
Protection.
42. CSR Sec. 38-2-17--Small Operator Assistance Program (SOAP).
43. CSR Sec. 38-2-18.3--Review of Decision Not to Inspect or
Enforce.
44. CSR Sec. 38-2-20.1--Inspection Frequencies.
45. CSR Sec. 38-2-20.2--Notices of Violations.
46. CSR Sec. 38-2-20.4--Show Cause Orders.
47. CSR Sec. 38-2-20.5--Civil Penalty Determinations.
48. CSR Sec. 38-2-20.6--Procedures for Assessing Civil
Penalties.
49. CSR Sec. 38-2-20.7--Assessment Rates.
50. CSR Sec. 38-2-22--Coal Refuse.
51. CSR Sec. 38-2C-4--Training of Blasters.
52. CSR Sec. 38-2C-5--Examination for Certification of Examiner/
Inspector and Certified Blaster.
53. CSR Sec. 38-2C-8.2--Refresher Training Course/Self-study
Course.
54. CSR Sec. 38-2C-10.1--Violations by a Certified Blaster.
55. CSR Sec. 38-2C-11.1--Penalties.
56. CSR Sec. 38-2D-4.4(b) Reclamation Objectives and Priorities.
57. CSR Sec. 38-2D-6.3(a) Acceptance of Gifts of Land.
58. CSR Sec. 38-2D-8.7(a) Grant Application Procedures.
(3) Exceptions.
(i) Sec. 22-3-13--Performance Standards is not approved to the
extent that subsection 13(e) applies to areas other than steep slope
areas as defined in Sec. 22-3-13(d).
(ii) Sec. 22B-1-4 through 12--Environmental Boards; General Policy
and Purpose: Language at Sec. 22B-1-7(d) which allows temporary relief
where the appellant demonstrates that the executed decision appealed
from will result in the appellant suffering an ``unjust hardship'' is
not approved; and language at Sec. 22B-1-7(h) which allows the Surface
Mining Board to consider economic feasibility of treating or
controlling discharges from surface coal mining operations in appeals
from decisions of an order, permit, or official action is not approved.
(iii) CSR Sec. 38-2-1.2(c)(1) concerning termination of
jurisdiction over an initial program site is approved except to the
extent that subsection (c)(1) does not require compliance with the
Federal initial program regulations at Subchapter B or to the West
Virginia permanent program as a prerequisite to the termination of
jurisdiction.
(iv) CSR Sec. 38-2-2.20 concerning the definition of ``chemical
treatment'' is not approved to the extent that the definition would be
applied in the context of section CSR 38-2-12.2(e) to authorize bond
release for sites with discharges that require passive treatment to
meet discharge standards.
(v) CSR Sec. 38-2-4.4 is not approved to the extent that it exempts
infrequently used access roads from the requirements of subsection 4.9.
(vi) CSR Sec. 38-2-4.11 is not approved to the extent that the
provision excludes facilities that are included within the definition
of ``surface coal mining operations'' at 30 CFR 700.5.
(vii) CSR Sec. 38-2-14.5(h) is not approved to the extent that the
proposed waiver at subsection (h) would not be implemented in
accordance with the definition of ``Replacement of water supply'' at 30
CFR 710.5.
(viii) CSR Sec. 38-2-14.19 is not approved to the extent that
windrowing would be allowed on the downslope in steep slope areas.
5. Section 948.16 is amended by removing and reserving paragraphs
(c), (f), (i), (j), (l), (n), (q), (s), (t), (v), (w), (x), (aa), (cc),
(hh), (ii), (jj), (kk), (mm), (nn), (pp), (qq), (rr), (ss), (uu), (vv),
and (yy) through (iii); revising paragraph (xx); and adding paragraphs
(mmm) through (uuu), reading as follows:
Sec. 948.16 Required regulatory program amendments.
* * * * *
(xx) By August 1, 1996, West Virginia shall submit either a
proposed amendment or a description of an amendment to be proposed,
together with a timetable for adoption, to revise subsection CSR 38-2-
14.8(a) to specify design requirements for constructed outcrop barriers
that will be the equivalent of natural barriers and will assure the
protection of water quality and insure the long-term stability of the
backfill.
* * * * *
(mmm) By August 1, 1996, 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 Sec. 22-3-13(e) to
limit the authorization for a variance from approximate original
contour to industrial, commercial, residential, or public alternative
postmining land use, in accordance with section 515(e)(2) of SMCRA.
(nnn) By August 1, 1996, 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 Sec. 22B-1-7(d) to be
consistent with SMCRA sections 514(d) and 525(c).
(ooo) By August 1, 1996, 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 Sec. 22B-1-7(h) to be
no less stringent than SMCRA section 515(b)(10) and no less effective
than the Federal regulations at 30 CFR 816.42, by requiring discharges
to be controlled or treated without regard to economic feasibility.
(ppp) By August 1, 1996, West Virginia must submit either a
proposed amendment or a description of an amendment to be proposed,
together with a timetable for adoption, to revise CSR Sec. 38-2-
1.2(c)(1) to require compliance with the Federal initial program
regulations at Subchapter B or the West Virginia permanent program
regulations as a prerequisite to the termination of jurisdiction over
an initial program site.
(qqq) By August 1, 1996, West Virginia must submit either a
proposed amendment or a description of an amendment to be proposed,
together with a timetable for adoption, to revise CSR Sec. 38-2-2.20,
or otherwise amend the West Virginia program to clarify that bond may
not be released where passive treatment systems are used to achieve
compliance with applicable effluent limitations.
(rrr) By August 1, 1996, West Virginia must submit either a
proposed amendment or a description of an amendment to be proposed,
together with a timetable for adoption, to revise CSR Sec. 38-2-4.4 to
require that all infrequently used access roads comply with CSR 38-2-
4.9.
(sss) By August 1, 1996, West Virginia must submit either a
proposed amendment or a description of an amendment to be proposed,
together with a timetable for adoption, to revise CSR Sec. 38-2-14.5(h)
and Sec. 22-3-24(b) to clarify that the replacement of water supply can
only be waived under the conditions set forth in the definition of
``Replacement of water supply,'' paragraph (b), at 30 CFR 701.5.
[[Page 6537]]
(ttt) By August 1, 1996, West Virginia must submit either a
proposed amendment or a description of an amendment to be proposed,
together with a timetable for adoption, to revise CSR Sec. 38-2-
14.19(d) to clarify that windrowing will not be allowed on the
downslope in steep slope areas.
(uuu) By August 1, 1996, 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 subsection 22.4(g) to
require compliance with a PMP 6-hour standard, or demonstrate how the
State would implement the PMP 24-hour standard at CSR 38-2-22.4(g).
6. Section 948.26 is amended by removing the text and reserving the
heading as follows:
Sec. 948.26 Required abandoned mine land reclamation program/plan
amendments. [Reserved]
[FR Doc. 96-3413 Filed 2-20-96; 8:45 am]
BILLING CODE 4310-05-M
