99-3128. West Virginia Regulatory Program

[Federal Register Volume 64, Number 26 (Tuesday, February 9, 1999)]
[Rules and Regulations]
[Pages 6201-6218]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-3128]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 948

[WV-077-FOR]


West Virginia Regulatory Program

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

ACTION: Final rule; approval of amendment.

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SUMMARY: OSM is approving with certain exceptions an amendment to the 
West Virginia permanent regulatory program under the Surface Mining 
Control and Reclamation Act of 1977 (SMCRA). The amendment revises both 
the West Virginia Surface Mining Reclamation Regulations and the West 
Virginia Surface Coal Mining and Reclamation Act. The amendment mainly 
consists of changes to implement the standards of the Federal Energy 
Policy Act of 1992. The amendment is intended to revise the State 
program to be consistent with the counterpart Federal provisions.

EFFECTIVE DATE: February 9, 1999.

FOR FURTHER INFORMATION CONTACT: Mr. Roger W. Calhoun, Director, 
Charleston Field Office, Telephone: [phone].

SUPPLEMENTARY INFORMATION:
    I. Background on the West Virginia Program
    II. Submission of the Amendment
    III. Director's Findings
    IV. Summary and Disposition of Comments
    V. Director's Decision
    VI. Procedural Determinations

I. Background on the West Virginia Program

    On January 21, 1981, the Secretary of the Interior conditionally 
approved the West Virginia program. Background information on the West 
Virginia program, including the Secretary's findings, the disposition 
of comments, and the conditions of the approval can be found in the 
January 21, 1981, Federal Register (46 FR 5915-5956). Subsequent 
actions concerning the West Virginia program and previous amendments 
are codified at 30 CFR 948.10, 948.12, 948.13, 948.15, and 948.16.

II. Submission of the Amendment

    By letter dated April 28, 1997 (Administrative Record Number WV-
1056), the West Virginia Division of Environmental Protection (WVDEP) 
submitted an amendment to its approved permanent regulatory program 
pursuant to 30 CFR 732.17. By letter dated May 14, 1997 (Administrative 
Record Number WV-1057), WVDEP submitted some revisions to the original 
submittal. The amendment contains revisions to Sec. 38-2-1 et seq. of 
the West Virginia Surface Mining Reclamation Regulations [Code of State 
Regulations (CSR)] and to Sec. 22-3-1 et seq. of the West Virginia 
Surface Coal Mining and Reclamation Act (WVSCMRA). The amendment mainly 
consists of changes to implement the standards of the Federal Energy 
Policy Act of 1992, and is intended to revise the State program to be 
consistent with the counterpart Federal provisions.
    On October 10, 1997, OSM provided the State a list of concerns 
regarding the proposed amendment (Administrative Record Number WV-
1073). By letter dated April 27, 1998 (Administrative Record Number WV-
1085), the State submitted its final response to OSM's comments on the 
amendments.
    An announcement concerning the initial amendment was published in 
the June 10, 1997, Federal Register (62 FR 31543-31546). A correction 
notice was published on June 23, 1997 (62 FR 33785), which clarified 
that the public comment period closed on July 10, 1997. No one 
requested an opportunity to speak at a public hearing, so none was 
held.

III. Director's Findings

    Set forth below, pursuant to SMCRA and the Federal regulations at 
30 CFR 732.15 and 732.17, are the Director's findings concerning the 
proposed amendment to the West Virginia program. Minor wording changes 
and other non-substantive changes are not identified.

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

Definitions
    1. Sec. 22-3-3(u) Definition of ``surface mine.'' This definition 
is amended at subsection 3(u)(2) by adding three examples of activities 
that are not encompassed by the definition of ``surface mine'' under 
the WVSCMRA. The three exceptions are: (1) Coal extraction pursuant to 
a government financed reclamation contract; (2) coal extraction 
authorized as an incidental part of development of land for commercial, 
residential, industrial, or civic use; and (3) the reclamation of an 
abandoned or forfeited mine by a no cost reclamation contract.
    Sec. 22-3-3(u)(2)(1): Coal extraction authorized pursuant to a 
government financed reclamation contract. Section 528(2) of SMCRA 
provides an exemption from the requirements of SMCRA for coal 
extraction incidental to government-financed highway or other 
construction under regulations established by the regulatory authority. 
The WVDEP has explained that the proposed amendments are intended to 
clarify that the reclamation of abandoned sites is government-financed 
construction that is consistent with the provisions of section 528(2) 
of SMCRA and, therefore, not subject to SMCRA.
    OSM is in the process of amending the Federal regulations at 30 CFR 
707 and 874 concerning the financing of Abandoned Mine Land reclamation 
(AML) projects that involve the incidental extraction of coal (63 FR 
34768; June 25, 1998). The first Federal revision would amend the 
definition of ``government-financed construction'' at 30 CFR 707.5 to 
allow less than 50 percent government funding when the construction is 
an approved AML project under SMCRA. The second revision would add a 
new section at 30 CFR 874.17 which would require specific consultations 
and concurrences with the Title V regulatory authority for AML 
construction projects receiving less than 50 percent government 
financing. The revised final Federal regulations will be published 
soon, and will likely affect our decision on the West Virginia 
amendments that concern government financed construction on abandoned 
mine lands. Therefore, OSM is deferring its decision on these 
amendments until after the publication in the Federal Register of the 
final amendments to 30 CFR Parts 707 and 874.
    Sec. 22-3-3(u)(2)(2): Coal extraction incidental to development of 
land for commercial, residential, industrial, or civic use. As stated 
above, Section 528(2) of SMCRA, and Sec. 22-3-26(b) of the WVSCMRA 
provide an exemption from the requirements of SMCRA for coal extraction 
incidental to government-financed highway or other construction under 
regulations established by the regulatory authority. However, no 
provision currently exists which provides an exemption from the 
requirements of SMCRA for coal extraction incidental to privately 
financed development of land for commercial, residential, industrial, 
or civic use.
    Section 701(28) of SMCRA, the definition of ``surface coal mining

[[Page 6202]]

operations'', does not provide for such an exemption. As discussed in 
the March 13, 1979, preamble to the Federal regulations, a commenter 
recommended that the definition of surface coal mining operations 
exclude private excavation which results in the incidental recovery of 
coal (44 FR 14901, 14914). OSM concluded that such an exemption was 
inconsistent with Section 528 of SMCRA.
    The WVDEP asserts, however, that Section 701(28) does not define 
``surface coal mining operations'' to include any and all excavation 
which disturbs coal. For example, the WVDEP asserts that unless done in 
connection with a coal mine, coal removal relative to the development 
of land for commercial, residential, industrial or civic use is beyond 
the jurisdiction of SMCRA. Further, the WVDEP refers to section 101(f) 
of SMCRA which provides that because of the diversity in terrain, 
climate, biologic, chemical, and other physical conditions in areas 
subject to mining operations, the primary governmental responsibility 
for developing, authorizing, issuing, and enforcing regulations for 
surface mining and reclamation operations subject to SMCRA would rest 
with the States. Specifically, the WVDEP stated that because of the 
State's unique geographic and geologic conditions, any excavation 
activity in certain parts of the State will necessitate the excavation 
of coal. Sometimes such excavation would justify the requirement of a 
surface mining permit and in other instances it would not. The WVDEP 
stated that the proposed changes are intended to clarify when a permit 
is necessary and to provide for reasonable environmental controls when 
a permit is not required (but a special authorization under proposed 
section 22-3-28 would be) so as to prevent adverse impacts to the 
environment from excavation related disturbances. Finally, the WVDEP 
asserts that the proposed approach would prevent a waste of resources 
and provide environmental protection while accommodating development 
within the State.
    The Director recognizes that requiring all privately financed 
construction activities in West Virginia which also remove coal to be 
permitted and regulated as surface coal mining operations may, in some 
instances, present both a hardship for the regulatory program and be a 
roadblock to development within the State. Nevertheless, OSM is bound 
by the constraints of SMCRA, both in its plain language and in clear 
expressions of Congressional intent. Congress expressly considered and 
rejected a blanket exemption from the definition of ``surface mining 
operations'' for privately financed construction. S. Rep. No. 95-337, 
95th Cong., 1st Sess. 112 (1977). This West Virginia program amendment 
proposes precisely the same blanket exemption which Congress explicitly 
rejected. Therefore, the Director finds that the proposed provision is 
less stringent than SMCRA at section 528 and cannot be approved.
    Sec. 22-3-3(u)(2)(3): The reclamation of an abandoned or forfeited 
mine by a no-cost reclamation contract. The State has proposed to 
exempt from the definition of ``surface mining'' the reclamation of 
abandoned or post-SMCRA forfeited mines conducted under a ``no cost'' 
reclamation contract.
    Reclamation activities involving forfeited mines are subject to 
regulation under SMCRA. Bond forfeiture reclamation must be conducted 
in accordance with the reclamation plan of the revoked permit as 
provided by 30 CFR 800.50(b). Such activities are also subject to 
inspection under 30 CFR 842.11(e) and (f). However, reclamation 
activities on abandoned and forfeited mine sites do not constitute 
``surface coal mining operations,'' so long as they do not include coal 
extraction. Therefore, the Director is approving W.Va. Code 22-3-
3(u)(2)(3), because it is not, on its face, inconsistent with the 
Federal definition of ``surface coal mining operations'' at section 
701(28). However, West Virginia has also proposed a regulation which 
would allow the placement of excess spoil on abandoned sites, pursuant 
to ``no cost'' reclamation contracts. The proposed regulation is 
included in a program amendment which is the subject of another 
rulemaking. (63 FR 32633, June 15, 1998) Therefore, the disposal of 
excess spoil on abandoned and forfeited sites pursuant to ``no cost'' 
contracts is not yet approved.
    2. Sec. 22-3-3(x) is added to define ``Unanticipated event or 
condition.'' The Director finds the proposed definition to be 
substantively identical to and therefore no less stringent than the 
counterpart Federal provision at SMCRA section 701(33).
    3. Sec. 22-3-3(y) is added to define ``Lands eligible for 
remining.'' Under this new definition, lands eligible for remining 
include lands that would be eligible for expenditure under Section 4 of 
the State's Abandoned Mine Lands and Reclamation Act. In addition, 
surface mining operations on lands eligible for remining would not 
affect the eligibility of such lands for AML funding, and, in the event 
of bond forfeiture, AML funds may be used to reclaim reaffected 
eligible lands. However, if conditions constitute an emergency under 
section 410 of SMCRA, then section 410 shall apply.
    The Federal definition of ``lands eligible for remining'' at SMCRA 
section 701(34) provides that the term means those lands that would 
otherwise be eligible for expenditures under section 404 or under 
section 402(g)(4). Section 404 provides that surface coal mining 
operations on lands eligible for remining shall not affect the 
eligibility of such lands for reclamation and restoration. In the event 
of a bond or deposit forfeiture, section 404 allows the use of AML 
funds to reclaim the site only if the amount of the bond or deposit is 
not sufficient to provide for adequate reclamation or abatement.
    In support of this amendment, WVDEP stated that any AML funds used 
at a remining site would be spent in accordance with AML guidelines, 
including eligibility requirements. Accordingly, the use of AML funds 
at remining sites would be subject to the concurrence of OSM that there 
is, among other things, no other responsible party at such sites and 
that the bond available is not sufficient to provide for adequate 
abatement or reclamation. Finally, the WVDEP stated that its 
interpretation of this program amendment is if the site was eligible 
for AML funds prior to remining it will be eligible for AML funds after 
remining. That is, section 22-3-3(y) does not preclude AML eligibility 
after a remining bond release.
    The Director finds that the proposed amendment as explained above 
by the WVDEP appears to be no less stringent than SMCRA section 701(34) 
and can, therefore, be approved. However, that portion of section 22-3-
3(y) pertaining to bond forfeitures is approved only to the extent that 
AML funds may be used to reclaim sites where a bond or deposit has been 
forfeited only if the bond or deposit is insufficient to provide for 
adequate reclamation or abatement.
    4. Sec. 22-3-3(z) is added to define ``Replacement of water 
supply.'' The Director finds the proposed definition to be 
substantively identical to the introductory paragraph and to subsection 
(a) of the counterpart Federal definition at 30 CFR 701.5, except as 
noted below. The Federal provision provides that water supply 
replacements must be equivalent to ``premining'' water quantity and 
quality, and replacement must include payment of operation and 
maintenance costs in excess of customary and reasonable delivery costs 
of the ``premining'' water supply. The proposed State provision, 
however, merely provides that water supply replacements must be of

[[Page 6203]]

``equivalent quality and quantity.'' In support of this provision, 
WVDEP stated that the word ``premining'' was not included in the 
definition because that term can lead to confusion. The word 
``equivalent'' rather than the words ``equivalent premining'' was used 
so that a realistic baseline (i.e., the quality and quantity of water 
in use prior to the permitted mining activity as determined by the 
premining survey) would provide certainty as to water replacement 
obligations. In addition, WVDEP explained that the State's definition 
and practice is that when a water supply is contaminated, interrupted, 
or disrupted the water supply must be replaced with a water supply that 
is equivalent in quantity, quality, and cost to that which existed 
prior to mining. The Director finds that the proposed definition, if 
implemented as explained by the WVDEP, would not be inconsistent with 
and is no less effective than the counterpart Federal definition at 30 
CFR 701.5. The Director is approving the proposed definition with the 
understanding that it will be implemented as explained above. In 
addition, the Director notes that the proposed definition lacks a 
counterpart to provision (b) of the Federal definition of ``replacement 
of water supply'' at 30 CFR 701.5. This counterpart is necessary 
because W.Va. Code sec. 22-3-24(b) allows a water supply owner to waive 
replacement. Only pursuant to the terms of paragraph (b) of the Federal 
definition, however, is waiver of replacement allowed. Therefore, the 
required amendment, at 30 CFR 948.16(sss), remains in effect.
Performance Standards
    5. Sec. 22-3-13(b)(20). This subparagraph, concerning revegetation 
performance standards, is amended by adding a provision stating that, 
on lands eligible for remining, the revegetation responsibility period 
will be not less than two growing seasons after the last year of 
augmented seeding. The proposed provision differs slightly from its 
Federal counterpart, in that it uses the term ``growing season'', while 
the SMCRA provision uses the term ``year.'' However, the proposal is no 
less stringent than Section 520(b)(20)(B) of SMCRA, because CSR 38-2-
2.57 further defines growing season to mean one year. Therefore, the 
Director is approving the amendment.
    6. Sec. 22-3-13(b)(22). This subparagraph is amended by deleting 
the word ``shall'' in the last sentence and replacing that word with 
``may.'' This sentence now states that ``[s]uch approval [of single 
lift, durable rock excess spoil disposal fills] may not be unreasonably 
withheld if the site is suitable. * * *'' The Director finds the 
proposed revision does not change the meaning of the sentence and, 
therefore, does not render the provision less effective than the 
Federal requirements in 30 CFR 816/817.73.
    7. Sec. 22-3-13(c)(3) is amended to allow the approval of permits 
involving a variance from restoring approximate original contour (AOC) 
for mountaintop removal operations when the postmining land use 
includes fish and wildlife habitat and recreation lands. A decision on 
this provision is being deferred. OSM requested public comment on a new 
report concerning an evaluation of approximate original contour and 
postmining land use in West Virginia. It is expected that some of the 
comments received in response to the evaluation will address the 
proposed revision. Therefore, OSM is deferring a decision on this 
provision at this time, and will consider any additional comments on 
the proposed postmining land use.
Inspection and Enforcement
    8. Sec. 22-3-15(h). This paragraph is added to provide that the 
WVDEP Director may provide a compliance conference when requested by 
the permittee. The provision further provides that any such conference 
may not constitute an inspection as defined in Sec. 22-3-15 of the 
WVSCMRA. The Director finds the provision to be substantively identical 
to and therefore no less effective than the Federal regulations at 30 
CFR 840.16(b).
    9. Sec. 22-3-17(b). The subsection is amended by adding a paragraph 
which provides that, within one year following the notice of a permit 
revocation, subject to the discretion of the director and based upon a 
petition for reinstatement, the revoked permit may be reinstated. 
Further, the provision provides that the reinstated permit may be 
assigned to any person who meets the permit eligibility requirements of 
this article.
    The Federal enforcement requirements at section 521 of SMCRA do not 
specifically prohibit the reinstatement of a revoked permit. However, 
OSM notified the WVDEP that to be approvable, the proposed State 
provision must provide adequate safeguards to ensure that the 
reinstated permit will satisfy all of the requirements of the WVSCMRA. 
Currently, the proposed provision only requires that an applicant meet 
the permit eligibility requirements of the WVSCMRA. At a minimum, the 
State's reinstatement provisions need to provide for public 
participation, require that the revoked permit will meet the 
appropriate permitting requirements of the WVSCMRA, and require that 
the mining and reclamation plan will be modified to address any 
outstanding violations.
    In response to OSM's concerns, the WVDEP stated that it, ``plans to 
use a process that would be similar to a permit transfer which would 
require the upgrade, if necessary, of the reinstated permit to meet 
applicable performance standards and advertisement with the opportunity 
for public comments.'' The State's existing transfer, assignment or 
sale procedures at CSR 38-2-3.25 require an advertisement with the 
opportunity for a 30-day comment period, that the bond be kept in full 
force and effect before, during and after the transfer, assignment or 
sale of the permit, and that the applicant correct all outstanding 
unabated violations. To accommodate the sale of assets from one party 
to another, the procedures also allow for the approval of a transfer, 
assignment or sale of a permit in advance of the close of the comment 
period.
    The Director is approving the proposed State statutory revisions in 
so far as Section 22-3-17(b) does not contain any provisions that are 
less stringent than the requirements of SMCRA. However, because the 
State's proposed reinstatement provisions do not reference the 
transfer, assignment or sale requirements of Section 22-3-19(d) of 
WVSCMRA or CSR 38-2-3.25, and because the WVDEP acknowledges that it 
has not fully developed its reinstatement procedures, the State cannot 
implement the proposed provisions until its program is further amended. 
Therefore, the Director is requiring that the State further amend the 
West Virginia program to adopt reinstatement procedures similar to its 
transfer requirements contained in CSR 38-2-3.25. The procedures must 
allow for public participation, require that the revoked permit meet 
the appropriate permitting requirements of the WVSCMRA, and require 
that the mining and reclamation plan be modified to address any 
outstanding violations for any permit reinstated pursuant to Sec. 22-3-
17(b) of the WVSCMRA. However, in no event can a reinstated permit be 
approved in advance of the close of the public comment period, and the 
party seeking reinstatement must post a performance bond that will be 
in effect before, during, and after the reinstatement of the revoked 
permit.
Permit Issuance
    10. Sec. 22-3-18(c) This paragraph is amended by deleting the word 
``shall''

[[Page 6204]]

in two locations and replacing those words with ``may.'' With these 
revisions, a permit ``may'' not be issued until the applicant submits 
proof that a violation is being corrected, and a permit ``may'' not be 
issued if the applicant is found to be affiliated with a person who has 
had a permit or bond revoked for failure to reclaim.
    Section 510(c) of SMCRA provides that permits ``shall'' not be 
issued by a regulatory authority if the circumstances described above 
exist. Under existing Federal requirements, a regulatory authority has 
no discretionary authority when it is obligated by law to deny a 
permit. In general, the phrase ``may not'' means the same as ``shall 
not'' and is not discretionary.
    In response to OSM's concern about the interpretation of this 
amendment, the WVDEP stated that the changes were of form only, and are 
not intended to affect the meaning of the provision. Therefore, the 
Director is approving the amendments because they do not change the 
meaning of Sec. 22-3-18(c) of the WVSCMRA.
    11. Sec. 22-3-18(f). This paragraph is added to provide that the 
prohibition of Sec. 22-3-18(c) of the WVSCMRA may not apply to a permit 
application due to any violation resulting from an unanticipated event 
or condition at a surface coal mine eligible for remining under a 
permit held by the applicant. The Director finds that the proposed 
provision is substantively identical to and, therefore, no less 
stringent than, the counterpart Federal provision at section 510(e) of 
SMCRA.
    12. Sec. 22-3-28. The title of this section is amended from special 
``permits'' to special ``authorization'' for reclamation of existing 
abandoned coal processing waste piles. In addition, the following is 
added to the title: coal extraction pursuant to a government-financed 
reclamation contract; coal extraction as an incidental part of 
development of land for commercial, residential, industrial, or civic 
use; no cost reclamation contract. In addition, throughout this 
provision, the term ``permit'' is replaced with ``authorization.'' Some 
of the provisions of Sec. 22-3-28 were initially contained in Sec. 20-
6-31 of the WVSCMRA.
    Subsections 22-3-28 (a), (b), and (c) pertain to special 
authorizations to engage in surface mining incidental to the 
development of land for commercial, residential, industrial, or civic 
use. These subsections are amended by replacing the word ``permit'' 
with ``authorization.'' Under the revised statutory provisions, a 
person may engage in surface coal mining incidental to the development 
of land for commercial, residential, industrial, or civic use after 
obtaining a special authorization from the Director of the WVDEP. 
Subsection (b) is also amended by changing the duration of a valid 
authorization from ``until work permitted is completed'' to ``two 
years.''
    As discussed in the preamble to the Federal regulations at 30 CFR 
part 707, upon considering a Senate amendment that included an 
exemption for all construction, the conferees agreed to a modified 
version of the Senate amendment which limited the exemption to 
extraction of coal as an incidental part of government-financed 
construction only, rather than all construction as originally provided 
in the Senate language (44 FR at 14949, March 13, 1979).
    In promulgating its definition of ``surface coal mining 
operations'' at 30 CFR 700.5, OSM considered and rejected a provision 
that would have clarified that the definition did not apply to coal 
removal incidental to private construction. See comment 3, column 2, of 
44 FR at 14914. OSM found that such an exemption was inconsistent with 
Section 528 of SMCRA.
    Furthermore, the Interior Board of Surface Mining Appeals (IBSMA), 
which was subsequently incorporated into the Interior Board of Land 
Appeals, twice ruled that ``the extraction of coal as an incidental 
part of privately financed construction is not an activity excluded as 
such from the coverage of the * * * regulatory program.'' See James 
Moore, 1 IBSMA, 216 (1979) and Gobel Bartley, 4 IBSMA 219 (1992). 
Finally, OSM has previously determined that 22-3-28(a)-(c) is 
inconsistent with SMCRA. (See 46 FR 5915, 5924, Finding 14.4, January 
21, 1981.) Therefore, the existing and proposed provisions in 
paragraphs (a), (b) and (c) of Section 22-3-28 of the WVSCMRA relating 
to incidental mining operations related to commercial, residential, 
industrial, or civic use are less stringent than the Federal 
requirements at Sections 528 and 701(28) of SMCRA and cannot be 
approved.
    Subsection 22-3-28(d) pertains to reclamation contracts issued 
solely for the removal of existing abandoned coal processing waste 
piles. Subsection (d) is amended by deleting the words ``special 
permit'' and replacing them with the words ``reclamation contract.'' 
With this change, the director of the WVDEP may issue a reclamation 
contract for removal of existing abandoned coal processing waste piles 
when not in conflict with the WVSCMRA. In addition, the State is 
deleting the requirement to have the director of the WVDEP promulgate 
rules for such operations.
    Subsection 22-3-28(d) is implemented in the regulations at CSR 38-
2-3.14. These two sections apply only to the disposal of refuse piles 
that do not meet the definition of coal. The removal of abandoned 
refuse piles that do not meet the definition of coal as set forth in 
ASTM Standard D 388-77 is not subject to regulation under SMCRA (55 FR 
21313-21314; May 23, 1990). Therefore, since the amended regulations 
pertain to activities that are not subject to regulation under SMCRA, 
the Director finds that the proposed changes to Sec. 22-3-28(d) of the 
WVSCMRA do not render the West Virginia program inconsistent with SMCRA 
or the Federal regulations.
    Subsection 22-3-28(e). The State proposes to add new paragraph (e) 
to allow the Director to provide a special authorization for coal 
extraction pursuant to a government-financed reclamation contract, and 
a no-cost reclamation contract. The primary purpose of these contracts 
would be to ensure the reclamation of abandoned or forfeited mine 
lands.
    As discussed above in Finding A.1., OSM is in the process of 
amending the Federal regulations at 30 CFR 707 and 874 concerning the 
financing of Abandoned Mine Land reclamation (AML) projects that 
involve the incidental extraction of coal (63 FR 34768; June 25, 1998). 
The first Federal revision would amend the definition of ``government-
financed construction'' at 30 CFR 707.5 to allow less than 50 percent 
government funding when the construction is an approved AML project 
under SMCRA. The second revision would add a new section at 30 CFR 
874.17 which would require specific consultations and concurrences with 
the Title V regulatory authority for AML construction projects 
receiving less than 50 percent government financing. The revised final 
Federal regulations will be published soon, and will likely affect our 
decision on the West Virginia amendments that concern government 
financed construction on abandoned mine lands. Therefore, OSM is 
deferring its decision on these amendments until after the publication 
in the Federal Register of the final amendments to 30 CFR Parts 707 and 
874.
    Subsection 22-3-28(f). The WVDEP proposes to add paragraph (f) to 
require that any person engaging in coal extraction pursuant to Section 
28 must pay all applicable fees and taxes related to coal extraction, 
replace or restore all water supplies affected by such extraction, and 
obtain the consent of the

[[Page 6205]]

surface and mineral owners prior to conducting such activities.
    As discussed above in this Finding, not all of the proposed 
provisions of this Sec. 22-3-28 are consistent with sections 528 and 
701(28) of SMCRA. Therefore, section 22-3-28(f) is approved, but may be 
implemented only with respect to those portions of Sec. 22-3-28 that 
are approved in this rulemaking.
Senate Bill 378
    13. Senate Bill 378--W.Va. Code Sec. 19-25-1 et. seq. Besides the 
changes in its surface mining law, the WVDEP also submitted revisions 
to Chapter 19, Article 25 of the West Virginia Code. The proposed 
revisions are to encourage private landowners to allow the public to 
enter private lands for recreational purposes; provide for limitation 
of landowner liability for injury to persons entering private property 
and injury to the property of persons entering such property; and 
provide an exception for liability for deliberate, intentional or 
malicious infliction of injury.
    There is no specific language in SMCRA that limits liability of 
landowners. However, SMCRA does provide for public participation during 
the mining and reclamation process. Operators are to maintain minimum 
insurance liability limits to provide for personal injury and property 
damage protection. Citizens are also allowed to accompany an inspector 
on an inspection. In addition, operators and landowners are to assume 
responsibility for the sound future maintenance of structures, i.e., 
impoundments, sedimentation ponds, etc., that are to remain after 
mining and reclamation is completed. State landowner liability 
limitations cannot interfere with an individual's rights under SMCRA. 
Therefore, before the statutory proposal could be found to be no less 
stringent than SMCRA, the WVDEP was requested on October 10, 1997, to 
provide OSM assurance that the proposed language will not inhibit 
public participation under the WVSCMRA.
    In response to OSM questions, the WVDEP stated that Senate Bill 
378, and W.Va. Code 19-25-1 et seq., are not a part of the West 
Virginia Surface Control Mining and Reclamation Act and will not affect 
the public participation in the release process, nor access to the 
reclaimed mine site for purposes of administering the approved program. 
Additionally, the landowner is required under the approved program to 
assume responsibility for the future maintenance of structures to be 
left after reclamation, by signing a form which clearly sets forth the 
maintenance requirements. The WVDEP stated that the change to W.Va. 
Code section 19-25-1 is for the purpose of limiting civil liability and 
does not extend to the maintenance liability of WVSCMRA.
    The Director therefore finds that the amendments to W.Va. Code 
section 19-25-1 do not render the West Virginia program less stringent 
than SMCRA nor less effective than the Federal regulations. However, 
Senate Bill 378 need not be approved as a program amendment, because 
the provisions contained in it do not alter any of the obligations 
imposed by WVSCMRA.

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

Definitions
    1. CSR 38-2-2.4--Definition of ``acid-producing coal seam.'' This 
definition is amended by deleting the names of specific coal seams 
commonly associated with acid-producing minerals. In addition, the last 
sentence is amended by deleting reference to the multiple seams whose 
names were deleted and to refer instead to site-specific seams. There 
is no direct Federal counterpart to this State definition. However, the 
Director finds that the proposed deletion does not diminish the intent 
or clarity of the State definition, and does not render the West 
Virginia program inconsistent with SMCRA or the Federal regulations.
    2. CSR 38-2-2.43 Definition of ``downslope.'' This definition is 
amended by adding the phrase ``except in operations where the entire 
upper horizon above the lowest coal seam is proposed to be partly or 
entirely removed.'' Under the proposed revision, the definition of 
``downslope'' would not apply to mountaintop removal or multiple seam 
operations. Prior to this amendment, the definition limited spoil 
placement on all mining operations to the lowest coal seam being mined.
    The State explained that the definition change is needed to 
accommodate the unique requirements of multiple seam mining operations. 
In effect, the State said, under the proposed change the term ``being 
mined'' would be limited to the lowest coal ``prepared to be mined'' in 
a mining sequence as part of an approved mining and reclamation plan. 
An area that has been prepared to be mined would have been cleared, and 
drainage controls would be in place.
    Despite the WVDEP's explanation, however, the Director notes that 
the amended language merely exempts such multiple seam mining 
operations from the approved definition of downslope, and does nothing 
to explain what the definition of ``downslope'' would be for such 
multiple-seam operations. Therefore, the Director is not approving the 
amendment to the definition of ``downslope.''
    3. CSR 38-2-2.95 Definition of ``prospecting.'' This definition is 
amended by adding the word ``substantial'' as a modifier of the word 
``disturbance.'' Under the revised definition, prospecting would 
include the gathering of environmental data where such activity may 
cause any substantial disturbance of the land. The Federal regulations 
at 30 CFR 701.5 contain a definition of ``coal exploration'' that is 
synonymous with ``prospecting,'' except the Federal definition lacks 
the word ``substantial.'' The WVDEP explained that the change in the 
definition of prospecting is intended to reflect the language of SMCRA 
at section 512(a) which provides that each State program shall include 
a requirement that coal exploration operations which substantially 
disturb the natural land surface be conducted in accordance with 
exploration regulations issued by the regulatory authority. However, 
the Director notes that 30 CFR 772.11 requires that a notice of intent 
be filed for any coal exploration operation, regardless of whether any 
disturbance at all will occur. In promulgating this revised Federal 
regulation on December 29, 1988, the Director stated that ``for the 
regulatory authority to determine which proposed coal exploration 
operations may substantially disturb the natural land surface, it must 
be informed of all proposed exploration.'' (53 FR 52943). The WVDEP 
stated that the West Virginia program will continue to require notice 
to the WVDEP of both activities that do and do not cause substantial 
disturbance of the natural land surface. These notice provisions are 
contained in CSR 38-2-13.1 and 38-2-13.4(b).
    However, the Director notes that a conflict still exists between 
the State's definition of ``prospecting'', which now proposes to 
exclude the gathering of environmental data which does not cause 
``substantial'' disturbance of the land surface, and the notice 
requirements of CSR 38-2-13.1. Therefore, the Director is not approving 
the addition of the word ``substantial'' to modify the word 
``disturbance'' in the definition of ``prospecting.''
    4. CSR 38-2-2.108 Definition of ``Sediment control or other water 
retention structure, sediment control or other water retention system, 
or sediment pond.'' The amendment adds the following sentence: 
``Examples include wildlife ponds, settling basins

[[Page 6206]]

and all ponds and facilities or structures used for water treatment.'' 
The Director finds that the added language is illustrative and does not 
render the State definition less effective than the Federal definitions 
of ``sedimentation pond'' and ``siltation structure'' at 30 CFR 701.5.
    5. CSR 38-2-2.120 Definition of ``Substantially disturb.'' This 
definition is amended by changing the phrase ``land or water 
resources'' to read ``land and water resources.'' The WVDEP has 
explained that this change was an editorial change made by the State 
legislature. Further, the WVDEP interprets the provision to mean that 
if land and/or water resources are significantly impacted by 
prospecting that will mean that those resources have been 
``substantively disturbed.'' The Director finds that the amended 
definition can be approved to the extent that it is construed in the 
manner explained by the WVDEP. However, because future administrations 
could construe the use of the term ``and'' in its more commonly 
understood sense, as a conjunctive connector, the Director is requiring 
that West Virginia amend its program by changing the phrase ``land and 
water resources'' to ``land or water resources'', in the definition of 
``substantially disturb,'' or by otherwise making it clear that the 
term ``substantially disturb,'' for the purposes of prospecting, 
includes a significant impact on either land or water resources.
    6. CSR 38-2-3.2.e Readvertisement. This provision is amended by 
deleting the last sentence. The deleted language required that permits 
that are being renewed or significantly revised, and permit 
applications that are being significantly revised must be advertised in 
accordance with paragraph 38-2-3.2.b and paragraph (6), subsection (a), 
section 9 of the WVSCMRA. The Director finds that the deletion does not 
render the West Virginia program less effective than the Federal four-
week requirement at 30 CFR 773.13(a) because the West Virginia program 
continues to require four weeks of newspaper advertisement at 
subsections 3.2(a), 3.27.a.7. and 3.28.b.1. of the State's regulations.
    7. CSR 38-2-3.12.a.1. Subsidence control plan. This provision is 
amended to require that the survey and map required by this subsection 
also identify the location and type of water supplies, and whether or 
not subsidence could contaminate, diminish or interrupt water supplies 
within an angle of draw of at least 30 degrees. The amendment also 
provides for an alternative angle of draw based on site specific 
analysis.
    The State amendments differ from the counterpart Federal 
requirements at 30 CFR 784.20(a) in that the Federal provision does not 
limit the identification of the water supplies to those within a 
specified angle of draw. Also, the State provision does not require 
identification of the type and location of all structures within the 
permit and adjacent areas. Finally, the amendments lack the Federal 
requirement, contained in 30 CFR 784.20(a)(2), that the permit 
application include a narrative indicating whether subsidence, if it 
occurred, could cause material damage to or diminish the value or 
reasonably foreseeable use of such structures or renewable resource 
lands or could contaminate, diminish, or interrupt drinking, domestic, 
or residential water supplies.
    In response to OSM's questions, the WVDEP explained that the West 
Virginia program permit application, concerning the information needed 
for the probable hydrologic consequences (PHC) determination at section 
38-2-3.22, requires an applicant for an underground mine permit to 
conduct a ground water and surface water inventory which includes all 
areas within one-half mile of the proposed operation, including 
underground limits. This information is then used by the WVDEP permit 
reviewers to evaluate for possible impacts on those resources by 
subsidence. If during this evaluation it appears to the reviewer that 
impacts are likely outside the proposed 30-degree angle of draw, then 
the reviewer would document that need and expand the survey beyond the 
30 degree limit.
    The WVDEP explained that State use of the 30-degree angle of draw 
standard is intended to clarify a perceived ambiguity in the Federal 
regulation at 30 CFR 784.20(a)(3). The Federal provision requires a 
survey of the quantity and quality of all drinking, domestic, and 
residential water supplies within the permit and adjacent area that 
could be contaminated, diminished, or interrupted by subsidence. To 
clarify and standardize the term ``adjacent area,'' the State has 
chosen to require the surveys within a 30-degree angle of draw. 
However, the WVDEP explained, that since a permittee would have already 
provided a surface and groundwater inventory as part of the 
requirements for the PHC regulations at 38-2-3.22, the WVDEP will have 
the information available to require an enlargement of the 30-degree 
angle of draw requirement, if necessary. That is, if WVDEP's analysis 
of the PHC information reveals that impacts are likely outside the 30-
degree angle of draw area, the WVDEP can expand the area within which 
the subsidence-related information survey is required. Therefore, the 
WVDEP asserts, additional information on water supplies will not be 
limited by the 30-degree angle of draw provision nor by the ``adjacent 
area'' standard as contained in the Federal and State provisions.
    The Director finds that, despite the WVDEP's explanation above 
concerning the use of PHC data, the State program provides no specific 
authority to require a pre-subsidence survey in areas outside the 
proposed 30 degree angle of draw. Without such authority, the West 
Virginia program is rendered less effective than the Federal 
regulations at 30 CFR 784.20(a)(1) which require a map of the permit 
and adjacent areas showing the location, without limitation by an angle 
of draw, of lands, structures, and water supplies that could be damaged 
by subsidence. Therefore, the Director is not approving the phrase 
``within an angle of draw of at least 30-degrees'' at Sec. 38-2-
3.12.a.1. Also, the Director is requiring that the West Virginia 
program be further amended to also require on the map provided for by 
Sec. 38-2-3.12.a.1. the identification of the type and location of all 
lands, structures, and drinking, domestic and residential water 
supplies within the permit and adjacent areas because Sec. 38-2-
3.12.a.1. lacks that requirement.
    Finally, the Director is requiring that the West Virginia program 
be further amended to require that the permit application include a 
narrative indicating whether subsidence, if it occurred, could cause 
material damage to or diminish the value or reasonably foreseeable use 
of such structures or renewable resource lands or could contaminate, 
diminish, or interrupt drinking, domestic, or residential water 
supplies.
    38-2-3.12.a.1 is also being amended to provide for a site-specific 
angle of draw other than the 30-degree angle of draw. Approval of such 
a site-specific angle of draw will be based on the results of site 
specific analyses and demonstration that a different angle of draw is 
justified. Computer program packages predicting surface movement and 
deformation caused by underground coal extraction can be utilized.
    The proposed language differs from the counterpart Federal 
authorization at 30 CFR 817.121(c)(4)(ii) for a site specific angle of 
draw in the following ways. The Federal provision provides that such a 
site specific angle of draw be based on site-specific geotechnical 
analysis of the potential surface impacts

[[Page 6207]]

of the proposed mining operation. Furthermore, the Federal provision 
requires a written finding by the regulatory authority that, based on 
the geotechnical analysis, the site specific angle of draw has a more 
reasonable basis than the 30-degree angle of draw. In response to OSM's 
comments, the WVDEP stated that to approve an angle of less than 30 
degrees, ``an affirmative demonstration is required by the applicant 
that there will be no subsidence within that angle of draw (i.e. the 
geotechnical information required to support this claim will be on a 
case by case basis).'' The WVDEP did not clarify, however, that the 
regulatory authority would make a written finding concerning each 
proposed site-specific angle of draw.
    Considering the clarification by the WVDEP discussed above, the 
Director finds that the provision to allow a site-specific angle of 
other than the 30-degree angle of draw can be approved with the 
understanding that such an alternative angle of draw is justified based 
on a site-specific geotechnical analysis of the potential surface 
impacts of the mining operation.
    However, the Director believes that these requirements should be 
added formally to the State's program, to avoid any ambiguity of 
interpretation in the future. Therefore, she is requiring that the 
State amend the West Virginia program to provide that approval of any 
alternative angle of draw will be based on a written finding that a 
proposed angle of draw of less than 30 degrees is justified based on 
site-specific geotechnical analysis of the potential surface impacts of 
the proposed mining operation.
    8. CSR 38-2-3.12.a.2--Subsidence control plan. This new provision 
adds language to require surveys of water supplies and structures that 
could be damaged within the applicable angle of draw. Language is also 
added to provide for a survey of the condition of all non-commercial 
buildings or residential dwellings and structures related thereto that 
may be materially damaged or for which the foreseeable use may be 
diminished by subsidence within the area encompassed by the applicable 
angle of draw.
    The proposed provision concerning the survey of water supplies is 
less encompassing than the counterpart Federal regulations at 30 CFR 
784.20(a)(3). Specifically, 30 CFR 784.20(a)(3) provides for a pre-
subsidence survey (without limitation by an angle of draw) of the 
quantity and quality of all drinking, domestic, and residential water 
supplies within the permit area and adjacent area that could be 
contaminated, diminished, or interrupted by subsidence. By contrast, 
the proposed State provision only requires the water surveys to be 
conducted ``within the area encompassed by the applicable angle of 
draw.'' As discussed above in Finding B-7, the Director has determined 
that the State program provides no specific authority to require a pre-
subsidence survey in areas outside the proposed 30 degree angle of 
draw.
    The Director is approving the proposed provision except for the 
phrase, ``within the area encompassed by the applicable angle of draw'' 
which renders the West Virginia program less effective than the 
counterpart Federal regulations at 30 CFR 784.20(a)(3) and cannot be 
approved. In addition, the Director is requiring that the West Virginia 
program be further amended to be no less effective than 30 CFR 
784.20(a)(3) by requiring a pre-subsidence survey, without limitation 
by an angle of draw, of the quantity and quality of all drinking, 
domestic, and residential water supplies within the permit area and 
adjacent area that could be contaminated, diminished, or interrupted by 
subsidence.
    Secs. 38-2-3.12.a.2.A and .B. These two provisions are added to 
allow an exemption or postponement of the pre-subsidence structural 
survey requirements at Sec. 38-2-3.12.a.2. for areas of extraction of 
less than or equal to 60 percent. To receive an exemption under 
Sec. 38-2-3.12.a.2.A., it must be demonstrated that damage to the 
structure(s) will not occur. To receive a postponement under Sec. 38-2-
3.12.a.2.B., it must be demonstrated that damage to the structure(s) 
will not occur, and that no mining (extraction greater than 60 percent) 
within the applicable angle of draw shall occur until the pre-
subsidence structural survey is completed. In addition, Sec. 38-2-
3.12.a.2. provides that if extraction exceeds 60 percent in areas 
granted an exemption and/or postponement, the exemption and/or 
postponement will be voided for the entire underground mining 
operation. Furthermore, the presumption of causation will apply to any 
damage to structure(s) as a result of earth movement within a 30 degree 
angle of draw from any underground extraction.
    The counterpart Federal regulations at 30 CFR 784.20 do not 
explicitly allow for exemptions from or postponements of the pre-
subsidence survey requirement. However, the Federal regulations at 30 
CFR 784.20(a)(3) require a survey only of structures ``that may be 
materially damaged or for which the reasonably foreseeable use may be 
diminished by subsidence.'' The proposed State-authorized exemption 
and/or postponement are contingent on a finding by the WVDEP that the 
permittee has demonstrated that damage to the structure(s) will not 
occur. Such a finding will be based upon extraction of 60 percent or 
less, and upon the demonstration provided by the permittee that damage 
to the structure(s) will not occur. In its response to OSM dated April 
24, 1998, the WVDEP stated that ``[t]he WVDEP requires the applicant to 
identify those areas on a map for which the exemption is being 
requested, to provide the necessary documentation (pillar designs, 
amount of cover, etc.), and limits the extraction rate to less than 
60%.'' To qualify for a postponement, the applicant follows the same 
process as to qualify for an exemption.
    The Director notes that the proposed language does not clarify what 
would comprise the minimum information needed in a demonstration to 
convince the director of the WVDEP that the exemption or postponement 
is warranted. That is, what should the required demonstration consist 
of? To be no less effective than the Federal regulations, such a 
demonstration should consist of a site-specific geotechnical analysis 
of the potential surface impacts of the mining operation.
    Proposed Sec. 38-2-3.12.a.2.B. also provides that no mining 
(extraction greater than 60 percent) within the applicable angle of 
draw shall occur until the pre-subsidence structural survey is 
completed. The Director notes that any amendment that would authorize a 
delay in the timing of the structural condition survey required by 30 
CFR 784.20(a)(3) must also provide copies of the survey and any 
technical assessment or engineering evaluation to the property owner. 
In addition, the proposed provisions must provide opportunity for the 
structure owner to comment on the adequacy of the structural condition 
survey and the planned implementation of the subsidence control plan as 
it pertains to the structure in view of the results of the survey. The 
proposed amendment lacks these provisions.
    The Director finds that the proposed State provisions at 38-2-
3.12.a.2.A. and 3.12.a.2.B., which authorize exemptions and 
postponements where it is demonstrated that damage will not occur, are 
less effective than the Federal provisions at 30 CFR 784.20(a)(3) and 
817.121(c)(4)(ii) for the reasons stated above.
    38-2-3.12.a.2. also provides that if the permittee is denied access 
to the land or property for the purpose of

[[Page 6208]]

conducting the pre-subsidence survey, the permittee will notify the 
owner, in writing, that no presumption of causation will exist. The 
Director finds this provision to be substantively identical to the 
counterpart Federal provision at 30 CFR 784.20(a)(3).
    38-2-3.12.a.2. also requires that the survey report be signed by 
the person or persons who prepared and conducted the survey, and that 
copies of the survey report be provided to the property owner and to 
the WVDEP. The Director finds the proposed provision to be 
substantively identical to and therefore no less effective than the 
Federal regulations at 30 CFR 784.20(a)(3).
    However, the Director finds that the State's proposal lacks the 
requirement, contained in 30 CFR 784.20(a)(3), that the permit 
applicant pay for any technical assessment or engineering evaluation 
used to determine the premining condition or value of non-commercial 
buildings or occupied residential dwellings or structures related 
thereto and the quality of drinking, domestic or residential water 
supplies. Also, the State's proposal lacks the requirement that the 
applicant must provide copies of any technical assessment or 
engineering evaluation to the property owner and regulatory authority. 
Therefore, the Director is requiring that the State further amend the 
West Virginia program to be no less effective than 30 CFR 784.20(a)(3) 
to provide that the permit applicant pay for any technical assessment 
or engineering evaluation used to determine the premining condition or 
value of structures and water supplies, and that copies of any 
technical assessments or engineering evaluations be provided to the 
property owner and regulatory authority.
    Finally, amended 30-2-3.12.a.2. includes a definition of non-
commercial building. The State definition is substantively identical to 
the counterpart Federal definition of ``non-commercial building'' at 30 
CFR 701.5 with one exception. Unlike the State definition, the Federal 
definition also includes any building that is used on a ``temporary 
basis'' as a public building, or community or institutional building. 
As such, the State's proposed definition is less effective than its 
Federal counterpart and cannot be approved. In addition, the Director 
is requiring that the State further amend 38-2-3.12.a.2. to clarify 
that ``non-commercial building'' includes such buildings used on a 
regular or temporary basis.
    9. CSR 38-2-3.14--Removal of abandoned coal refuse disposal piles. 
The State is proposing to amend 38-2-3.14 by deleting 3.14.b.7., which 
requires the submission of a determination of probable hydrologic 
consequences, and 3.14.b.8., which requires the submission of a 
hydrologic reclamation plan, as part of an application for a special 
permit for the removal of existing abandoned coal processing waste 
piles. Also, the State proposes to amend 3.14.b.12.E., to require a 
stability analysis of the coal waste pile only if requested by the 
Director. Next, the State proposes to delete existing 3.14.b.15.B., 
which requires plans, cross sections and design specifications for 
diversion ditches. Finally, the State proposes a new section 
3.14.b.13.B., which requires that surface water be diverted around or 
``over'' the material remaining after removal of a coal waste pile, by 
properly designed and stabilized diversion channels which have been 
designed using the best current technology to provide protection to the 
environment and the public. The channels are required to be designed 
and constructed to ensure stability of the remaining material, control 
erosion, and minimize water infiltration into the material.
    The provisions at 38-2-3.14 pertain to the disposal of refuse 
disposal piles that do not meet the definition of coal. The removal of 
abandoned refuse piles that do not meet the definition of coal as set 
forth in ASTM Standard D 388-77 is not subject to regulation under 
SMCRA (55 FR 21313-21314; May 23, 1990). Therefore, since the amended 
regulations pertain to activities that are not subject to regulation 
under SMCRA, the Director finds that the proposed deletions do not 
render the West Virginia program less effective and can be approved. 
The Director notes that the proposed State rules apply only to non-coal 
refuse (red dog) piles. An operator proposing to remove or reprocess 
refuse piles which contain coal, as provided by CSR 38-2-3.14.a, must 
submit a permit application that meets all of the applicable 
requirements of CSR 38-2-3.
    10. CSR 38-2-3.29--Incidental boundary revisions (IBR). These 
provisions are amended at subsection 3.29.a. by adding language to 
authorize IBR's for areas where it has been demonstrated to the WVDEP 
director that limited coal removal on areas immediately adjacent to the 
existing permit is the only practical alternative to recovery of 
unanticipated reserves or necessary to enhance reclamation efforts or 
environmental protection. The WVDEP has explained that the primary 
purpose of this change is to facilitate enhanced reclamation of 
abandoned mine sites adjacent to the permit area, thus relieving the 
demand for reclamation funds by reducing the number of sites on the AML 
inventory. The WVDEP stated that such IBR's must comply with all 
applicable environmental performance standards, and would be subject to 
the required findings provided at 38-2-3.29.d. prior to approval.
    The Director finds the proposed amendment to be not inconsistent 
with the intent and purpose of Section 511(a) of SMCRA and 30 CFR 
774.13(d), except as noted below. On February 21, 1996 (61 FR 6511, 
6520) the Director approved a previous amendment to this provision. In 
that approval, the Director stated that, ``. . . under the proposed 
language IBR's will not be authorized for surface or underground 
operations in cases where additional coal removal is the primary 
purpose of the revision.'' That is, the Director had determined that to 
be consistent with the intent of sections 511(a)(3) of SMCRA and 30 CFR 
774.13(d) which pertain to incidental boundary revisions, coal removal 
cannot be the primary purpose of an IBR. Therefore, the Director is not 
approving the phrase ``the only practical alternative to recovery of 
unanticipated reserves or'' because it would authorize coal removal as 
the primary purpose of an IBR.
    11. CSR 38-2-3.35--Measurement tolerances. This provision is added 
to specify the standards for grade and linear measurements. 
Specifically, all grade measurements and linear measurements shall be 
subject to a tolerance of two percent. All angles shall be measured 
from the horizontal and shall be subject to a tolerance of five 
percent. The amendment provides, however, that the authorized 
deviations from the approved plan do not affect storage capacity and/or 
performance standards. In effect, the measurement tolerances relate to 
the amount of allowed variances between approved designs and the ``as 
built'' measurements of those designs. That is, the measurement 
tolerances pertain to constructed, or ``as built'' structures and not 
to design measurements. Neither SMCRA nor the Federal regulations 
contain counterparts to these proposals. However, the Director finds 
that the proposed tolerances, with the requirement that approved 
storage capacities and performance standards must be met, are 
reasonable, not inconsistent with SMCRA or the Federal regulations, and 
can be approved.
Sediment Control Structures
    12. CSR 38-2-5.5.c--Permanent impoundments. This provision is 
amended to add that for permanent impoundments, the landowner sign a 
request that the structure be left for

[[Page 6209]]

recreational or other purposes. There is no Federal counterpart to this 
proposal. Language is deleted which requires that the operator also 
sign the request, and that the request assert that the landowner 
assumes liability for the structure and will provide for sound future 
maintenance of the structure. The Federal regulations at 30 CFR 
800.40(c) allow for the retention of permanent impoundments after bond 
release, as long as provisions for sound future maintenance by the 
operator or landowner have been made with the regulatory authority. The 
West Virginia program provides for sound future maintenance by the 
permittee or landowner at 38-2-12.2.c.2.D. That form (MR-12) assigns 
the landowner responsibility for the sound future management of any 
permanent impoundments. The Director finds, therefore, that the 
amendment at subsection 5.5.c does not render the West Virginia program 
less effective than the Federal regulations and can be approved.
Blasting
    13. CSR 38-2-6.5.a.--Blasting procedures. This provision is amended 
by adding language to allow for blasting on Sunday if the WVDEP 
Director determines that the blasting is necessary and there has been 
an opportunity for a public hearing. The Federal regulations do not 
prohibit blasting on Sundays. According to the Federal regulations, an 
operator is only allowed to conduct blasting activities at times 
approved by the regulatory authority and announced in the blasting 
schedule. Therefore, the Director finds that the proposed revision does 
not render the West Virginia program less effective than the Federal 
requirements at 30 CFR 816/817.64.
Fish and Wildlife
    14. CSR 38-2-8.2.e.--Habitat development. This provision is added 
to encourage and specify the criteria for timber windrowing to promote 
the enhancement of food, shelter, and habitat for wildlife. As 
proposed, unmarketable timber may be used for windrowing, but the use 
of spoil material, debris, abandoned equipment, root balls, and other 
undesirable material in a windrow is prohibited. Such windrowing must 
be approved in the mining and reclamation plan, and must be approved as 
part of a wildlife planting plan and authorized where the postmining 
land use includes wildlife habitat. The proposed requirements would 
apply to the construction of timber windrows in both steep and non-
steep slope areas.
    The Federal regulations do not contain specific criteria concerning 
the design or construction of timber windrows. However, SMCRA at 
section 515(d)(1) and the Federal regulations at 30 CFR 816.107(b) 
prohibit the placement of debris, including that from clearing and 
grubbing on the downslope in steep slope areas. The Director finds that 
the proposed provision is not inconsistent with the Federal provisions 
cited above. As with the Federal provisions, the State provision is 
intended to prohibit debris, such as spoil material, abandoned 
equipment, root balls, and other undesirable material, on the 
downslope. In addition, the timber windrowing would be designed for 
wildlife habitat, the designs would be reviewed by a State wildlife 
biologist specialist, and windrowing would only be approved for 
postmining land use that includes wildlife habitat. Though not 
specifically stated in the proposed rule, the WVDEP has informed OSM 
that the design of the windrow will be reviewed by a State wildlife 
biologist as part of the wildlife enhancement plan for a postmining 
land use containing wildlife habitat. (Administrative Record No. WV-
1085) The Director finds that 38-2-8.2.e is consistent with SMCRA 
section 515(d)(1), and no less effective than the Federal regulations 
at 30 CFR 780.16 and 816.107(d) provided the design of the windrowing 
will be reviewed by a State wildlife biologist as part of the wildlife 
enhancement plan for a postmining land use containing wildlife habitat. 
The Director notes that the Federal regulations at 30 CFR 948.16(ttt) 
continue to require that the State regulations at CSR 38-2-14.19 
concerning the disposal of noncoal mine wastes be amended at subsection 
d., which concerns windrowing. The WVDEP has indicated that 38-2-
14.19.d. will be proposed for deletion in a future rulemaking session.
Revegetation
    15. CSR 38-2-9.2.i.2.--Revegetation plan. This provision is amended 
by adding a sentence to specify that an alternate maximum or minimum 
soil pH may be approved based on the optimum pH for the revegetated 
species. There is no direct Federal counterpart to the State standards 
for lime and soil pH. However, the Director finds that the amendment is 
not inconsistent with the Federal regulations at 30 CFR 816/817.111(a), 
which provide for the establishment of a diverse, effective, and 
permanent vegetative cover, and 30 CFR 816/817.22, which require that 
the resulting soil medium be the best available in the permit area to 
support revegetation. Therefore, the provision is approved.
    16. CSR 38-2-9.3.h.1.--Standards for evaluating vegetative cover. 
This provision is deleted and replaced in its entirety. The new 
language requires that the minimum stocking rate of commercial tree 
species shall be in accordance with the approved forest management plan 
prepared by a registered professional forester. The revised provision 
also changes the minimum tree stocking rate from 600 trees per acre to 
no less than 450 stems per acre. In order to qualify for the 
``Commercial Woodlands'' postmining land use and the reduced tree 
stocking rates contained in 38-2-9.3.h., the permittee must have an 
approved management plan prepared by a registered professional 
forester. The West Virginia Division of Forestry (WVDOF) and the WVDEP 
signed a memorandum of understanding on June 4, 1998, to ensure 
compliance with 30 CFR 816.116/817(b)(3)(i) (Administrative Record 
Number WV-1109). In that memorandum of understanding, the WVDOF agreed 
to review in a timely manner all ``Commercial Woodlands'' planting and 
forest management plans to be included in surface mining permits issued 
by the WVDEP. If after review, the WVDOF agrees that the planting and 
forest management plan is in conformance with the prevailing and 
regional conditions, the WVDOF will provide the WVDEP with a letter 
indicating such agreement. Therefore, the Director finds this amendment 
to be consistent with the Federal regulations at 30 CFR 816/
817.116(b)(3)(i).
    17. CSR 38-2-9.3.h.2.--Standards for evaluating vegetative cover. 
The State is proposing to delete the provision that a minimum of 75 
percent of the countable trees identified in the planting plan be 
commercial tree species. There is no direct Federal counterpart to this 
provision. However, considering the memorandum of understanding between 
the WVDOF and the WVDEP discussed above at Finding B.16., the Director 
finds that the deletion does not render the West Virginia program less 
effective than the Federal regulations concerning the revegetation 
standards for success of areas to be developed for forest products at 
30 CFR 816/817.116(b)(3).
    18. CSR 38-2-9.3.h.2. (formerly h.3)--Standards for evaluating 
vegetative cover. This provision is amended to change the survival rate 
from 450 trees to 300 trees per acre, or the rate specified in the 
forest management plan, whichever is greater. There is no direct 
Federal counterpart to these amendments. However, considering the

[[Page 6210]]

memorandum of understanding between the WVDOF and the WVDEP discussed 
above at Finding B.16., the Director finds that the amendments are not 
inconsistent with the Federal regulations at 30 CFR 816/817.116(b)(3).
    19. CSR 38-2-14.11--Procedures to obtain inactive status. 
Subsection 14.11.e. is amended to delete the exemption from the three-
year limit on inactive status for preparation plants and load-out 
facilities. Added language authorizes the WVDEP Director to grant 
inactive status for a period not to exceed ten years, provided the 
facilities are maintained in such condition that operations could be 
resumed within 60 days.
    Subsection 14.11.f. is added to authorize the WVDEP Director to 
grant inactive status for a period not to exceed current permit term 
plus five years for underground mining operations provided the 
operation is maintained in such condition that the operations could be 
resumed within 60 days and openings are protected from unauthorized 
entry.
    Subsection 14.11.g. is added to authorize the WVDEP Director to 
grant inactive status for a period not to exceed ten years for coal 
refuse sites provided the completed lifts of the coal refuse site are 
regraded (which may include topsoiling), seeded and drainage control, 
where possible, has been installed in accordance with the terms and 
conditions of the permit.
    Subsection 14.11.h. is added to provide that the WVDEP Director may 
grant inactive status for a permit for a longer term than set forth in 
14.11.e. and f., provided the permittee furnishes and maintains bond 
that is equal to the estimated actual reclamation cost, as determined 
by the director. The director shall review the estimated actual 
reclamation cost at least every two and one-half years.
    In support of this amendment, the WVDEP explained that the proposed 
amendments set maximum time limits for inactive status for underground 
mines, preparation plants, load-out facilities and coal refuse sites. 
The proposed amendments also set standards the sites must meet before 
inactive status can be approved and the condition the mining operations 
must be maintained. Furthermore, the WVDEP explained, the amendments 
contain a requirement that a bond adequacy determination be conducted 
periodically to assure bond is sufficient to accomplish reclamation in 
event of forfeiture.
    The Federal regulations at 30 CFR 816/817.131 concerning temporary 
cessation of operations do not specify, as the proposed amendments do, 
a maximum time limit for temporary cessation, that inactive facilities 
must be maintained in a condition that would allow them to be 
reactivated within 60 days, and that the regulatory authority must 
periodically review the adequacy of the bond. However, the Federal 
regulations do provide that temporary abandonment shall not relieve a 
person of his obligation to comply with any provisions of the approved 
permit. The West Virginia program contain a similar requirement at CSR 
38-2-14.11.a.9. Temporarily abandoned sites in West Virginia must be 
permitted, and the provisions of the permit must be met. That is, an 
approved permit shall be maintained throughout the life of the inactive 
status. If a permit expires during an inactive status and is not 
renewed, the site must be reclaimed. The Director finds that the 
amendments are not inconsistent with the Federal requirements and can 
be approved.
    20. CSR 38-2-14.15.b.6.A.--Contemporaneous reclamation standards 
for mountaintop removal. This provision is amended to provide that the 
Director of the WVDEP may grant a variance to the disturbed and 
unreclaimed acreage standard not to exceed 500 acres on operations 
which consist of multiple spreads of equipment.
    In support of this amendment, the WVDEP asserted that the proposed 
amendment better assures contemporaneous reclamation because it 
recognizes and accounts for operational and geologic factors in 
formulating the mining and reclamation plan, especially on large, 
multiple-seam mining operations. Furthermore, the WVDEP asserts, the 
variance of 500 acres proposed by this amendment is not automatically 
approved, but is discretionary with the regulatory authority and would 
be granted only when justified.
    The Federal time and distance standards for contemporaneous 
reclamation at 30 CFR 816.101 have been indefinitely suspended. (57 FR 
33875, July 31, 1992) The remaining Federal regulations at 30 CFR 816/
817.100 require that reclamation efforts occur as contemporaneously as 
practicable with the mining operations. The WVDEP asserts that is 
precisely the purpose of the proposed amendment: to properly plan for 
contemporaneous reclamation with large, multiple-seam operations.
    The Director finds that the 500-acre standard, when implemented as 
described by the WVDEP is not inconsistent with the Federal regulations 
at 30 CFR 816.100 which provide for reclamation as contemporaneously as 
practicable with the mining operation, and can be approved.
    21. CSR 38-2-14.15.c.--Contemporaneous reclamation standards; 
reclaimed areas. The State has revised its provisions concerning 
reclaimed areas to delete language concerning Phase I bond release and 
semi-permanent ancillary facilities. Language is added to provide that 
regraded areas must also be stabilized.
    Also added is a list that identifies areas that shall not be 
included in the calculation of disturbed area. The list includes: 
Subsection 14.15.c.1. Semi-permanent ancillary facilities (such as 
haulroads and drainage control systems); 14.15.c.2. Areas within the 
confines of excess spoil disposal fills that are being constructed in 
the conventional method; 14.15.c.3. Areas containing 30 aggregate acres 
or less which have been cleared and grubbed and have the appropriate 
drainage controls installed and certified; 14.15.c.4. Areas that have 
been cleared and grubbed which exceed the 30 aggregate acres and/or 
those which will not be included in the operational area within six 
months, if the appropriate drainage control structures are installed 
and certified and temporary vegetative cover is established; and 
14.15.c.5. Areas which have been backfilled and graded with material 
placed in a stable, controlled manner which will not subsequently be 
moved to final grade, mechanically stabilized, and had drainage 
controls installed, but not necessarily certified.
    In support of this amendment, the WVDEP stated that it has been 
determined by field observations that there is a need to recognize 
operational and geographic conditions in order to accomplish 
reclamation as contemporaneously as possible. In addition, the WVDEP 
stated that it recognizes the need for flexibility with earth moving 
activities in certain situations so that reclamation can occur as 
contemporaneously as practicable with coal removal. The WVDEP asserts 
that the proposed amendment better assures contemporaneous reclamation 
than the rules currently in effect because it recognizes and accounts 
for those conditions in formulating a mining and reclamation plan.
    As stated above in Finding B-20, the Federal time and distance 
requirements for contemporaneous reclamation have been suspended. The 
existing Federal rules merely require that reclamation activities occur 
as contemporaneously as practicable with the mining operations. 
However, the amendments

[[Page 6211]]

appear reasonable when the type of mining operations are considered, 
and are not inconsistent with the concept of contemporaneous 
reclamation at 30 CFR 816/817.100. Therefore, the Director finds the 
amendments can be approved.
    22. CSR 38-2-14.15.d.--Contemporaneous reclamation standards; 
applicability. This provision is amended by adding a final sentence to 
provide that the WVDEP Director may consider contemporaneous 
reclamation plans on multiple permitted areas with adjoining boundaries 
where contemporaneous reclamation is practiced on a total operation 
basis. The Federal regulations at 30 CFR 816/817.100 require that 
reclamation activities occur as contemporaneously as practicable with 
the mining operations, and do not prohibit the development of a 
contemporaneous reclamation plan for multiple permitted areas with 
adjoining boundaries. Therefore, the Director finds that the amendments 
are not inconsistent with the Federal requirements and can be approved.
Subsidence Control
    23. CSR 38-2-16.2.c.--Surface owner protection; material damage. 
This provision is amended by adding a definition of the term ``material 
damage''. The proposed definition is identical to the counterpart 
Federal definition at 30 CFR 701.5 except that three words are missing. 
In response to OSM's comments, the WVDEP acknowledged the inadvertent 
omission of the word ``damage'' after the word ``material'' in the 
first sentence, and the missing words ``or facility'' after the word 
``structure'' in the last part of the first sentence.
    In response to OSM's comments, WVDEP concluded that the State's 
definition of ``structure'', at 38-2-2.116, can be construed to include 
``facilities'', since it includes manmade structures. The Director is 
approving this amendment, therefore, with the following understandings: 
that the State will add the word ``damage'' after the word ``material'' 
in future rulemaking, and will interpret the current definition as if 
the inadvertently omitted word were present; and that the State will 
consider its definition of ``structure'' at 38-2-2.116 to include 
``facilities'' as used in the Federal sense.
    24. CSR 38-2-16.2.c.2.--Surface owner protection. This amendment 
adds a final sentence to provide that the provision to correct 
subsidence-related material damage applies only to subsidence related 
damage caused by underground mining activities conducted after October 
24, 1992. The proposed change is to ensure consistency with the Energy 
Policy Act of 1992 (EPACT). EPACT was signed into law on October 24, 
1992. The Federal subsidence requirements of that Act are now in 
section 720 of SMCRA. Section 720 of SMCRA requires underground mining 
operations conducted after October 24, 1992, to promptly repair or 
compensate for material damage caused by subsidence to non-commercial 
buildings or any occupied residential dwelling and related structures. 
The Director finds the added language to be substantively identical to 
SMCRA section 720 and the Federal regulations at 30 CFR 817.121(c)(2) 
concerning repair or compensation for subsidence damage.
    25. CSR 38-2-16.2.c.3.--Presumption of causation. This provision is 
added to provide that if alleged subsidence damage occurs to protected 
structures as a result of earth movement within the area in which a 
pre-subsidence structural survey is required, a rebuttable presumption 
exists that the underground mining operation caused the damage.
    CSR 38-2-16.2.c.3.A.--This provision is added to provide that if 
the permittee was denied access to conduct a pre-subsidence survey, no 
presumption of causation will exist.
    CSR 38-2-16.2.c.3.B.--This provision is added to provide that the 
presumption will be rebutted if, for example, the evidence establishes 
that: the damage predated the mining in question; the damage was 
proximately caused by some other factors or was not proximately caused 
by subsidence; or the damage occurred outside the surface area within 
which subsidence was actually caused by the mining in question.
    CSR 38-2-16.2.c.3.C.--This provision is added to provide that in 
any determination of whether damage to protected structures was caused 
by subsidence from underground mining, all relevant and reasonably 
available information will be considered by the director.
    The Director finds that CSR 38-2-16.2.c.3. is substantively 
identical to, and therefore no less effective than, the Federal 
regulations at 30 CFR 817.121(c)(4), except as noted below.
    The Federal regulations at 30 CFR 817.121(c)(4) contain 
requirements for establishing and rebutting a presumption of causation 
by subsidence. Unlike the Federal requirements, the proposed State 
provisions at 38-2-16.2.c.3. apply the presumption of causation to 
subsidence related damage within the area where a presubsidence 
structural survey is required, whereas the Federal regulations at 30 
CFR 817.121(c)(4)(i) apply the presumption to the surface area within 
the angle of draw. Since the proposed State regulations at 38-2-
3.12.a.2. require the survey to be conducted for any structures within 
the angle of draw, however, the effect of both the Federal and State 
provisions should be the same, namely, that the presumption will apply 
to all structures within the 30 degree angle of draw.
    The WVDEP has stated, however, that it would not apply the 
presumption for a structure if the applicant has already provided, and 
the State accepted, a demonstration of ``no anticipated material 
damage'' for structures above areas where developmental mining occurs 
where coal extraction will be less than or equal to 60 percent (See, 
CSR 38-2-3.12.a.2.). The WVDEP argues that it would be inappropriate 
for the State to assert a presumption that mining caused alleged damage 
within the applicable angle of draw when the State has already made a 
finding, based on evidence presented by the permittee, that coal 
removal would not cause damage to structures.
    The Director does not agree with the WVDEP that a presumption does 
not apply. The Director finds that the Federal regulations require 
application of the presumption to any structure within the applicable 
angle of draw, even if a presubsidence survey was not performed for 
that structure. Therefore, the Director finds that 38-2-16.2.c.3. is 
less effective than the Federal regulations at 30 CFR 817.121(c)(4)(i) 
to the extent that the presumption of causation of subsidence damage 
only applies within the area which a pre-subsidence structural survey 
is required. Therefore, the Director is requiring that Sec. 38-2-
16.2.c.3. be further amended to provide that a rebuttable presumption 
of causation would exist within the applicable angle of draw, 
regardless of whether or not a presubsidence survey has been conducted.
    In addition, in Subparagraph c.3.B. the word ``or'' appears after 
the phrase ``other factors,'' whereas in the counterpart Federal 
provision at 30 CFR 817.121(c)(4)(iv) the word ``and'' appears after 
the phrase ``other factors.'' Under the State provision, the 
presumption that damage was caused by subsidence would be rebutted if 
the evidence establishes that the damage was proximately caused by some 
other factors, ``or'' was not proximately caused by subsidence. The 
counterpart Federal provision provides examples of how the presumption 
can be rebutted. The preamble discussion of the Federal provision 
states that the permittee must

[[Page 6212]]

provide information on the effect of the underground mining, but 
``[t]he proof needed to rebut the presumption will be determined on a 
case-by-case basis.'' 60 FR 16740, col. 2. The Federal provision states 
that the presumption would be rebutted if, for example, the evidence 
establishes that the damage was proximately caused by some other 
factors, and was not proximately caused by subsidence. In instances 
where there is only one proximate cause, the two tests are equally 
rigorous, since a finding that some other factor proximately caused the 
damage necessarily includes a finding that subsidence was not the 
proximate cause. In such instances, a permittee who successfully 
demonstrates that subsidence did not proximately cause damage would not 
be required, under either the Federal or State test, to identify the 
other factor or factors that did proximately cause the damage. However, 
in a case where there may not be a single proximate cause, but two or 
more concurrent causes, one of which is subsidence, the State test is 
less effective, because it would allow a permittee to rebut the 
presumption by merely demonstrating that some other factor was a 
contributing (proximate) cause. By contrast, in such cases, the Federal 
example would require the permittee to demonstrate that subsidence was 
not a proximate cause. In this type of case, if the permittee did not 
demonstrate that subsidence was not a proximate cause, the Federal 
presumption would not be rebutted, whereas the State presumption could 
be. Because the State language could allow rebuttal of the presumption 
without information on the effect of the underground mining in such 
circumstances, the Director finds that CSR 38-2-16.2.c.3.B. is less 
effective than the Federal regulations at 30 CFR 817.121(c)(4)(iv). 
Consequently, the Director is requiring that the State amend CSR 38-2-
16.2.c.3.B., or otherwise amend its program, to make it clear that the 
presumption of subsidence causation of damage can be rebutted only 
where the permittee demonstrates that the damage was proximately caused 
by some other factor or factors and was not proximately caused by 
subsidence.
    26. CSR 38-2-16.2.c.4.--Bonding for subsidence damage. This 
provision is added to provide that when subsidence related material 
damage occurs to lands, structures, or water supply, and if the 
director issues violation(s), the director may extend the 90-day 
abatement period to complete repairs, but the extension shall not 
exceed one year from date of violation notice. To qualify for an 
extension, the permittee must demonstrate, in writing, that it would be 
unreasonable to complete repairs within the 90-day abatement period. If 
the abatement period is extended beyond 90 days, as part of the 
remedial measures, the permittee shall post an escrow bond to cover the 
estimated costs of repairs.
    The Federal regulations contain similar requirements regarding bond 
adjustments for subsidence related damage. Unlike the Federal 
regulations, the State provision does not appear to specifically 
require bond adjustment when subsidence related material damage occurs 
to facilities. However, the WVDEP has stated that it interprets its 
definition of ``structures'' at CSR 38-2-2.116 to include 
``facilities'' as used in the Federal language at 30 CFR 817.121(c)(5). 
The Director accepts the State's interpretation that ``structures'' 
includes ``facilities.''
    Also, subsection 16.2.c.4. does not specifically require an 
operator, as does the Federal provision, to post additional bond in the 
amount of the decrease in the value of the property if the permittee 
will be compensating the owner, or in the amount of the estimated cost 
to replace the water supply until the repair, compensation, or 
replacement is completed. The WVDEP explained that the term 
``compensation'' is not used in the State provision because 
``compensation'' is a concept that must be adjudicated in West 
Virginia, and the WVDEP can't make that determination before the court 
does. The WVDEP further explained that under the phrase ``estimated 
cost of repair'' the WVDEP requires an escrow bond that would be the 
equivalent to the ``compensation'' required by the Federal regulations. 
The Director disagrees with the State's conclusion that ``repair'' is 
equivalent to ``compensation.'' Nevertheless, the Director finds that 
the State provision is no less effective than its Federal counterpart, 
because it requires the posting of an adequate bond to cover repair 
costs in all instances, even where the permittee proposes to 
compensate, rather than repair or replace. In this respect, the 
landowner will be assured of receiving adequate funds to cover the 
costs of repair or replacement of his or her structure in the event the 
permittee defaults on its obligation to repair, replace or compensate. 
Since repair, replacement and compensation are all acceptable means of 
meeting the permittee's obligations under the State counterpart to the 
Energy Policy Act of 1992, the State requirement to post a repair bond 
fairly meets the purposes of the Energy Policy Act.
    The State provision also provides for an extension to the 90-day 
abatement period requirement provided that the permittee demonstrates 
that it would be unreasonable to complete repairs within the 90-day 
abatement period. The counterpart Federal requirements provide that an 
extension of the 90-day abatement period may be granted for three 
reasons: that subsidence is not complete; that not all subsidence 
related material damage has occurred; or that not all reasonably 
anticipated changes have occurred affecting the protected water supply 
and, therefore it would be unreasonable to complete repairs within 90 
days. In response to OSM's questions concerning this difference, the 
WVDEP explained that the WVDEP interpretation is tied to the State 
rules concerning Notices of Violation (NOV). Under the State system, if 
repair or compensation for damage or water loss is not accomplished, 
the State issues an NOV to the permittee. Any extension to the time 
limit for repair or compensation must be compatible with the NOV 
provisions. The State NOV provisions at Section 20.2, however, do not 
specifically provide for time extensions for the reasons authorized in 
the Federal regulations. Without counterparts to the Federal provisions 
that allow for extension of the 90-day abatement period only under the 
circumstances identified above, it appears that operators in West 
Virginia may be permitted to assert additional reasons as to why the 
abatement period should be extended. In this respect, the State 
provision is less effective than its Federal counterpart, which allows 
extensions to the abatement period under only three different 
circumstances.
    The Director is, therefore, requiring the State to amend its 
program to provide that an extension of the 90-day abatement period may 
be granted for one of only three reasons: that subsidence is not 
complete; that not all subsidence related material damage has occurred; 
or that not all reasonably anticipated changes have occurred affecting 
the protected water supply.
    The State provision also differs from the counterpart Federal 
provision in that, under the State provision, the 90-day abatement 
period begins with the issuance of an NOV, rather than with the date of 
occurrence of subsidence-related material damage. Under the Federal 
scheme, the permittee's obligation to repair, replace or compensate for 
damage begins with the occurrence of that damage. If the appropriate 
remedial work has not been completed within 90 days, the Federal 
regulation requires the permittee to post

[[Page 6213]]

a bond, unless the abatement period is extended for one of the three 
reasons discussed above. Under the State scheme, however, the 
permittee's 90 day ``grace period'', wherein no bond is required, 
begins only after a NOV is issued. In reality, the permittee could 
enjoy a grace period of much longer than 90 days under the State 
provision, since there will always be some time lapse between the 
occurrence of damage and the issuance of a NOV. Therefore, the Director 
finds that the State provision is less effective than its Federal 
counterpart, and she is requiring the State to amend this provision, or 
otherwise amend its program, to require that the 90-day period before 
which additional bond must be posted begin to run from the date of 
occurrence of subsidence-related material damage.
    The Federal bonding and 90-day abatement period requirements at CFR 
817.121(c)(5) also apply to any contamination, diminution, or 
interruption of a drinking, domestic or residential water supply as a 
result of underground mining activities. The State's provision, 
however, only applies these requirements to subsidence-related damage 
to water. In response to OSM's questions, the WVDEP stated that it 
disagrees with OSM's interpretation because CFR 817.121(c)(5) only 
applies to subsidence related damage. The Director disagrees with this 
assessment of CFR 817.121(c)(5). CFR 817.121(c)(5) provides that ``when 
contamination, diminution, or interruption to a water supply protected 
under Sec. 817.41(j) occurs, the regulatory authority must require the 
permittee to obtain additional performance bond * * * in the amount of 
the estimated cost to replace the protected water supply if the 
permittee will be replacing the water supply, until the * * * 
replacement is completed.'' 30 CFR 817.41 provides the hydrologic-
balance protection standards for underground mining. Subsection 
817.41(j) provides for the replacement of any drinking, domestic or 
residential water supply that is contaminated, diminished or 
interrupted by underground mining activities conducted after October 
24, 1992, if the affected well or spring was in existence before the 
date the regulatory authority received the permit application for the 
activities causing the loss, contamination or interruption. Therefore, 
CFR 817.121(c)(5) clearly provides for additional bond whenever 
protected water supplies are contaminated, diminished or interrupted by 
underground mining activities conducted after October 24, 1992. The 
Director finds CSR 38-2-16.2.c.4. to be less effective than the 
counterpart Federal regulations to the extent that the West Virginia 
provision limits the requirement for additional bond for water supplies 
contaminated, diminished, or interrupted only to such water supplies 
that are so affected specifically by subsidence rather than by 
underground mining operations in general. The Director is requiring the 
State to further amend the West Virginia program to be no less 
effective than the Federal regulations at CFR 817.121(c)(5) to require 
additional bond whenever protected water supplies are contaminated, 
diminished or interrupted by underground mining activities conducted 
after October 24, 1992. The amount of the additional bond must be 
adequate to cover the estimated cost of replacing the affected water 
supply.
    27. CSR 38-2-20.1.e.--Inspection frequencies. This provision is 
added to provide that the permittee may request an on-site compliance 
conference. It also sets forth the requirements related to such a 
conference. A compliance conference shall not constitute an inspection, 
within the meaning of Sec. 22-3-15 of the WVSCMRA and CSR 38-2-20. 
Neither the holding of a compliance conference nor any opinion given by 
an authorized representative of the director at a conference shall 
affect the following: CSR 38-2-20.1.e.1.--Any rights or obligations of 
the director or by the permittee with respect to any inspection, notice 
of violation, or cessation order, whether prior to or subsequent to the 
compliance conference; or CSR 38-2-20.1.e.2.--The validity of any 
notice of violation or cessation order issued with any condition or 
practice reviewed at the compliance conference.
    The Federal regulations at 30 CFR 840.16 contain procedures 
governing compliance conferences. The added State compliance conference 
procedures at subsection 20.1.e. are the same as the corresponding 
Federal procedures and are, therefore, approved.

IV. Summary and Disposition of Comments

Federal Agency Comments

    Pursuant to section 503(b) of SMCRA and 30 CFR 732.17(h)(11)(i), 
comments were solicited from various interested Federal agencies. The 
U.S. Department of the Army, Army Corps of Engineers responded and 
stated that the amendments are satisfactory to the agency. The U.S. 
Department of Labor, Mine Safety and Health Administration (MSHA) made 
several comments, none of which, however, pertain to the amendments 
being considered by OSM. Therefore, MSHA's comments are not being 
addressed in this notice.

Public Comments

    The following comments were received in response to the public 
comment periods.
CSR 38-2-3.29--Incidental Boundary Revisions
    The commenter stated that the state is expanding the limits for 
IBR's even further, and is also proposing to allow coal removal under 
the auspices of IBR's. In response, the Director notes that as 
discussed in Finding B-10, the Director is only partially approving 
this provision. The Director has not approved the proposed language 
that would have authorized coal removal as the primary purpose of the 
IBR. While the term incidental boundary revisions is not defined in the 
Federal regulations, OSM has required that such revisions be minor in 
nature, so as not to effect significant changes to the environment, or 
the environmental protection information upon which permit conditions 
and permit approval were based. Furthermore, the Director has 
determined that to be consistent with the intent of sections 511(a)(3) 
of SMCRA and 30 CFR 774.13(d) which pertain to incidental boundary 
revisions, coal removal cannot be the primary purpose of an IBR.
W.Va. Code Secs. 22-3-3(u) and 22-3-28--Special Authorization for 
Exceptions to the Definition of Surface Mining (Special Permits)
    The commenter stated that this amendment creates whole new 
categories of surface mining that will be exempt from the basic 
requirements and standards of permitting. In response, the Director 
notes that SMCRA at section 528(2) provides that the extraction of coal 
as an incidental part of Federal, State, or local government-financed 
highway or other construction under regulations established by the 
regulatory authority shall not be subject to the provisions of SMCRA. 
SMCRA at section 701(28) provides the definition of ``surface coal 
mining operations.'' Section 701(28) provides, in part, that surface 
coal mining operations means activities conducted on the surface of 
lands in connection with a surface coal mine. The proposed amendments 
at W.Va. Code Secs. 22-3-3(u) and 22-3-28 reflect the State's 
interpretation that the proposed forms of coal removal and reclamation 
are authorized under section 528(2) of SMCRA, or are not

[[Page 6214]]

encompassed by the definition of surface coal mining operations at 
701(28).
    As discussed in Finding A-1 and Finding A-12, the Director is not 
approving Secs. 22-3-3(u)(2)(2) and 22-3-28(a), (b), and (c) concerning 
coal extraction as an incidental part of development of land for 
commercial, residential, industrial, or civic use.
    Also as discussed in Findings A-1 and A-12, the director is 
deferring a decision on the provisions at Sections 22-3-3(u)(2)(1) and 
22-3-28(e) that concern government financed construction. The Director 
will render a decision on the West Virginia amendments after 
publication of new Federal regulations at 30 CFR 707 and 874 regarding 
the financing of AML projects that involve the incidental extraction of 
coal.
CSR 38-2-14.11.e., f., g. and h.--Inactive Status
    The commenter stated that the proposed language further loosens the 
time frames allowed for operations to remain on inactive status and 
thus further clouds the ``temporary'' nature of mining (and the 
negative impacts of mining on communities and resources) envisioned in 
SMCRA. In response, the Director notes that the Federal regulations at 
30 CFR 816/817.131 provide that surface facilities in which there are 
no current operations, but in which operations are to be resumed under 
an approved permit shall be effectively secured. Further, the Federal 
regulations provide that temporary abandonment shall not relieve a 
person of his or her obligation to comply with any provisions of the 
approved permit. While the Federal regulations do not define the term 
``temporary cessation,'' the regulations make it clear that operations 
that are under temporary cessation must be under an approved permit, 
and must comply with the provisions of the approved permit. As 
discussed in Finding B-19, the Director has determined that temporarily 
abandoned sites in West Virginia must be permitted, and that the 
provisions of the permit must be met. Therefore, the Director found 
that the amendments are not inconsistent with the Federal requirements 
and can be approved.
CSR 38-2-14.15.c and .d--Contemporaneous Reclamation Standards
    The commenter stated that approving the provisions would make 
inspecting even more difficult, and bonding will present even more 
confusion than currently exists. The commenter also stated that 
approval of the provisions would mean that the preferred mining methods 
are dictating the limits of SMCRA, rather than SMCRA controlling the 
limits of mining and its impacts. In response, the Director notes that 
it is essential to consider the methods of mining when developing the 
mining and reclamation plans, and that the type of mining will have 
direct impact on what is perceived as contemporaneous reclamation. For 
example, while contour mining can be conducted in a way that active 
coal removal pits are small and quickly backfilled with spoil removed 
to create an adjacent pit, mountaintop removal operations involving 
multiple-seam mining may disturb large areas for longer periods. 
However, essential to both operations is the need to control water and 
sediment movement to prevent soil loss and water pollution. The 
proposed amendments, while accommodating mountaintop removal mining in 
the contemporaneous reclamation standards, do not reduce or eliminate 
the performance standards for controlling erosion and sedimentation and 
protecting water. As stated above in Finding B-20, the Federal time and 
distance requirements for contemporaneous reclamation have been 
suspended. However, the amendments appear reasonable when the type of 
mining operations are considered, and the Director has concluded that 
the amendments are not inconsistent with the concept of contemporaneous 
reclamation at 30 CFR 816/817.100.
W.Va. Code 22-3-3(z)--Replacement of Water Supply
    The commenter stated that the proposed definition of ``replacement 
of water supply'' is not acceptable for the following reasons. First, 
the definition omits reference to premining quality, quantity, and 
cost. Concerning cost, the commenter stated that under the proposed 
amendments, a person could end up with a water supply that costs them 
much more than their original water supply that was damaged by mining. 
In addition, the commenter asserted that the same specific protections 
are missing when the word ``premining'' is not included before the 
words ``quality and quantity.''
    Second, the commenter asserted that the definition lacks any 
reference to replacement requirements if the affected water supply was 
not needed for the land use in existence at the time of loss, 
contamination, or diminution, and if the supply is not needed to 
achieve the postmining land use. In those cases, the commenter said, 
according to OSM final rules of March 31, 1995, a demonstration is 
required to show that a suitable alternative water source is available 
and could feasibly be developed. Written concurrence from the water 
supply owner is also required.
    In response, the Director agrees with the commenter that the 
proposed definition of ``replacement of water supply'' omits reference 
to ``premining'' water quality and quantity. The WVDEP has clarified 
that the word ``equivalent'' was used to clarify that water replacement 
would involve replacing the quality and quantity of water in use prior 
to the permitted mining activity. The WVDEP further stated that 
replacement requires a supply that is not only equivalent in quantity 
and quality, but also in cost. A stated above in Finding A-4, the 
Director found that the proposed definition, if implemented as 
explained by the WVDEP, is not inconsistent with and is no less 
effective than the counterpart Federal definition at 30 CFR 701.5.
    Concerning the commenter's second comment, the Director agrees with 
the commenter that the proposed definition of ``replacement of water 
supply'' lacks a counterpart to provision (b) of the Federal definition 
of ``replacement of water supply'' at 30 CFR 701.5. As stated above in 
Finding A-4, the Director is requiring that the State further amend the 
West Virginia program to add such a counterpart.
CSR 38-2-16.2.c.--Material Damage
    The commenter stated that possible interpretations of the word 
``significant'' are troublesome at best. The commenter noted that the 
proposed definition of ``material damage'' reflects the minimum as set 
out by OSM in its final rule of March 31, 1995. The commenter also 
stated that the use of ``reasonably foreseeable uses'', rather than the 
more optimistic and far more protective ``future beneficial uses'', as 
incorporated in the State's Groundwater Act, is also troublesome. The 
Director disagrees with the commenter. As stated above in Finding B-23, 
except for the inadvertent omissions of words, the State's definition 
of ``material damage'' is substantively identical to the counterpart 
Federal definition at 30 CFR 701.5.
CSR 38-2-3.12--Subsidence Control Plan
    The commenter stated that proposed provisions concerning subsidence 
control plans, presubsidence surveys, presumption of causation, repair 
of damage, etc. offer less protection than OSM requires and should be 
examined closely by OSM. The commenter is referred to Findings B-7, B-
8, B-25 and B-26 wherein the Director found that

[[Page 6215]]

not all of the provisions contained in 38-2-3.12 and 38-2-16.2.c. could 
be approved. Moreover, the Director is requiring the State to amend its 
program to correct the deficiencies found in subsections 3.12 and 
16.2.c.

Environmental Protection Agency (EPA)

    Pursuant to 30 CFR 732.17(h)(11)(ii), OSM is required to obtain the 
written concurrence of the EPA with respect to those provisions of the 
proposed program amendment that relate to air or water quality 
standards promulgated under the authority of the Clean Water Act (33 
U.S.C. 1251 et seq.) or the Clean Air Act (42 U.S.C. 7401 et seq.). OSM 
requested EPA concurrence on June 6, 1997 (Administrative Record Number 
WV-1059). Pursuant to 30 CFR 732.17(h)(11)(i), OSM solicited comments 
from the EPA on the proposed amendment on June 5, 1997 (Administrative 
Record Number WV-1060)
    EPA responded to OSM's request for comments and concurrence by 
letter dated October 23, 1998 (Administrative Record Number WV-1108). 
EPA has concerns about the proposed provision at Sec. 22-3-13(c)(3) of 
the WVSCMRA that would allow an exemption for mountaintop removal 
operations from restoring mined land to its approximate original 
contour (AOC) if the post-mining land use is fish and wildlife habitat 
and recreation lands. EPA stated that the proposed revision would allow 
excess overburden to be disposed in valley fills rather than on top of 
the mined area to achieve AOC. A use designation as fish and wildlife 
habitat and recreation lands would not appear to be necessary if the 
goal was just to provide wildlife habitat and recreation land, rather 
than avoid the expense of placing overburden back on top of mined 
areas. It is very likely, EPA stated, that wildlife habitat areas would 
occur naturally on post-mining lands, including areas restored to the 
approximate original contour, as a result of appropriate reclamation 
without any special use designation. In addition, it appears that the 
proposed designation as wildlife habitat and recreation lands is not 
intended for lands to be used by the public since an exemption for 
``public use'' is already in the State statute. EPA said that its 
concern is that disposal of excess overburden in valley fills may harm 
aquatic life in headwater streams and possibly downstream reaches.
    EPA noted OSM's intention to defer action on proposed revisions to 
Sec. 22-3-13(c)(3) of the WVSCMRA regarding an exemption to approximate 
original contour for mountaintop removal operations until a later date 
and that the comment period will be reopened on this provision. With 
this understanding, the EPA concurred with the proposed WVDEP revisions 
under the condition that the EPA be given an opportunity to concur or 
not concur with the proposed amendment to Sec. 22-3-13(c)(3) of the 
WVSCMRA.

V. Director's Decision

    Based on the findings above the Director is approving West 
Virginia's proposed amendment submitted on April 28, 1997, except as 
noted below.
    Sec. 22-3-3(u)(2) Amendments to the definition of ``surface mine'' 
are approved with the following exceptions: (1) The provision 
concerning coal extraction authorized pursuant to a government financed 
reclamation contract is deferred. (2) The provision concerning coal 
extraction incidental to development of land for commercial, 
residential, or civic use is not approved. (3) The provision concerning 
the reclamation of abandoned or forfeited mines by no-cost reclamation 
contracts is approved, except for the disposal of excess spoil on 
abandoned and forfeited sites pursuant to ``no cost'' contracts, which 
will be considered in another rulemaking.
    Sec. 22-3-3(y) is approved, but the portion pertaining to bond 
forfeitures is approved only to the extent that AML funds may be used 
to reclaim sites where a bond or deposit has been forfeited only if the 
bond or deposit is insufficient to provide for adequate reclamation or 
abatement.
    Sec. 22-3-3(z) Amendments to the definition of ``Replacement of 
water supply'' are approved with the understanding that the definition 
will be implemented as explained above in Finding A-4.
    In addition, the required amendment, at 30 CFR 948.16(sss), remains 
in effect.
    A decision on Sec. 22-3-13(c)(3) is deferred.
    Sec. 22-3-17(b) is approved, but because the State's proposed 
reinstatement provisions do not reference the transfer, assignment or 
sale requirements of Section 22-3-19(d) of WVSCMRA or CSR 38-2-3.25, 
and because the WVDEP acknowledges that it has not fully developed its 
reinstatement procedures, the State cannot implement the proposed 
provisions until its program is further amended. Therefore, the 
Director is requiring that the State further amend the West Virginia 
program to adopt reinstatement procedures similar to its transfer 
requirements contained in CSR 38-2-3.25. The procedures must allow for 
public participation, require that the revoked permit meet the 
appropriate permitting requirements of the WVSCMRA, and require that 
the mining and reclamation plan be modified to address any outstanding 
violations for any permit reinstated pursuant to Sec. 22-3-17(b) of the 
WVSCMRA. However, in no event can a reinstated permit be approved in 
advance of the close of the public comment period, and the party 
seeking reinstatement must post a performance bond that will be in 
effect before, during, and after the reinstatement of the revoked 
permit.
    The provisions in Section 22-3-28 (a), (b) and (c) concerning coal 
mining incident to the development of land for commercial, residential, 
industrial or civic use are not approved.
    A decision on section 22-3-28(e) is deferred.
    Sec. 22-3-28(f) is approved, but may be implemented only with 
respect to those portions of sec. 22-3-28 that are approved in this 
rulemaking.
    38-2-2.43 Definition of ``downslope.'' The amendment to the 
definition of ``downslope'' is not approved.
    38-2-2.95 Definition of ``prospecting.'' The Director is not 
approving the addition of the word ``substantial'' to modify the word 
``disturbance'' in the definition of ``prospecting.''
    38-2-2.120 Definition of ``substantially disturb.'' The director is 
approving the amendment to this definition to the extent that the 
phrase ``land and water resources'' is construed to mean ``land or 
water resources.'' The Director is requiring that West Virginia amend 
its program by changing the phrase ``land and water resources'' to 
``land or water resources'', in the definition of ``substantially 
disturb'', or by otherwise making it clear that the term 
``substantially disturb'', for the purposes of prospecting, includes a 
significant impact on either land or water resources.
    38-2-3.12.a.1. The phrase ``within an angle of draw of at least 30-
degrees'' at Sec. 38-2-3.12.a.1 is not approved. In addition, the 
Director is requiring that the State amend its program to require that 
the map of all lands, structures, and drinking, domestic and 
residential water supplies which may be materially damaged by 
subsidence show the type and location of all such lands, structures, 
and drinking, domestic and residential water supplies. Finally, the 
Director is requiring that the State amend its program to require that 
the permit application include a narrative indicating whether 
subsidence, if it occurred, could cause material damage to or diminish 
the value or reasonably foreseeable use of such structures or

[[Page 6216]]

renewable resource lands or could contaminate, diminish, or interrupt 
drinking, domestic, or residential water supplies.
    38-2-3.12.a.1., pertaining to alternative, site-specific angles of 
draw, is approved with the understanding that such an alternative angle 
of draw would be justified based on a site-specific geotechnical 
analysis of the potential surface impacts of the mining operation. In 
addition, the Director is requiring that the State further amend the 
West Virginia program to clarify that approval of any alternative angle 
of draw will be based on a written finding that the proposed angle of 
draw has a more reasonable basis than the 30-degree angle of draw based 
on site-specific geotechnical analysis of the potential surface impacts 
of the proposed mining operation.
    38-2-3.12.a.2. is approved except that the phrase ``within the area 
encompassed by the applicable angle of draw'' as it applies to water 
supply surveys is not approved. The definition of ``non-commercial 
building'' is not approved. The Director is requiring that the State 
amend the definition of ``non-commercial building'' at 38-2-3.12.a.2., 
or otherwise amend the West Virginia program, to clarify that ``non-
commercial building'' includes such buildings used on a regular or 
temporary basis. In addition, the Director is requiring that the West 
Virginia program be further amended to be no less effective than 30 CFR 
784.20(a)(3) by requiring a pre-subsidence survey, without limitation 
by an angle of draw, of the quantity and quality of all drinking, 
domestic, and residential water supplies within the permit area and 
adjacent area that could be contaminated, diminished, or interrupted by 
subsidence.
    38-2-3.12.a.2.A. and .B. are not approved.
    The Director is also requiring that West Virginia amend CSR 38-2-
3.12.a.2., or otherwise amend its program, to require that the permit 
applicant pay for any technical assessment or engineering evaluation 
used to determine the premining condition or value of non-commercial 
buildings or occupied residential dwellings or structures related 
thereto and the quality of drinking, domestic or residential water 
supplies, and to require that the applicant provide copies of any 
technical assessment or engineering evaluation to the property owner 
and to the regulatory authority.
    38-2-3.29.a. is approved except the phrase ``the only practical 
alternative to recovery of unanticipated reserves or'' is not approved.
    38-2-8.2.e. is approved with the understanding that the design of 
the windrowing will be reviewed by a State wildlife biologist as part 
of the wildlife enhancement plan for a postmining land use containing 
wildlife habitat.
    38-2-16.2.c. is approved with the understanding that the State will 
correct the inadvertent omission of words in future rulemaking, and 
will interpret the current definition as if the inadvertently omitted 
words were present; and that the State will consider its definition of 
``structure'' at 38-3-2.116 to include ``facilities'' as used in the 
Federal sense.
    38-2-16.2.c.3. is less effective than the Federal regulations at 30 
CFR 817.121(c)(4)(i) to the extent that the presumption of causation of 
subsidence damage only applies within the area which a pre-subsidence 
structural survey is required. The Director is requiring that Sec. 38-
2-16.2.c.3. be further amended to provide that a rebuttable presumption 
of causation would exist within the applicable angle of draw, 
regardless of whether or not a presubsidence survey has been conducted.
    38-2-16.2.c.3.B. The Director is requiring the State to further 
amend CSR 38-2-16.2.c.3.B, or otherwise amend its program, to make it 
clear that the presumption of subsidence causation of damage can be 
rebutted only where the permittee demonstrates that the damage was 
proximately caused by some other factor or factors and was not 
proximately caused by subsidence.
    CSR 38-2-16.2.c.4 is approved except: To the extent that it does 
not limit extensions of the 90-day abatement period under circumstances 
set forth in the Federal regulations at 30 CFR 817.121(c)(5); to the 
extent that it limits the requirement for additional bond for water 
supplies contaminated, diminished, or interrupted only to such water 
supplies that are so affected specifically by subsidence rather than by 
underground mining operations in general; and, to the extent that it 
provides that the 90-day period before which additional bond must be 
posted does not begin to run until an NOV is issued. In addition, the 
Director is requiring that the State amend 38-2-16.2.c.4., or otherwise 
amend the West Virginia program, to be no less effective than the 
Federal regulations at 30 CFR 817.121(c)(5), which provide that an 
extension of the 90-day abatement period may be granted for one of only 
three reasons: that subsidence is not complete; that not all subsidence 
related material damage has occurred; or that not all reasonably 
anticipated changes have occurred affecting the protected water supply. 
The Director is also requiring that the State amend 38-2-16.2.c.4., or 
otherwise amend the West Virginia program, to be no less effective than 
the Federal regulations at 30 CFR 817.121(c)(5) by requiring additional 
bond whenever protected water supplies are contaminated, diminished or 
interrupted by underground mining operations conducted after October 
24, 1992. The amount of the additional bond must be adequate to cover 
the estimated cost of replacing the affected water supply. Finally, the 
Director is requiring that the State amend 38-2-16.2.c.4., or otherwise 
amend the West Virginia program, to require that the 90-day period 
before which additional bond must be posted begin to run from the date 
of occurrence of subsidence-related material damage.
    The Federal regulations at 30 CFR 948 codifying decisions 
concerning the West Virginia program are being amended to implement 
this decision. This final rule is being made effective immediately to 
expedite the State program amendment process and to encourage States to 
bring their programs into conformity with the Federal standards without 
undue delay. Consistency of State and Federal standards is required by 
SMCRA.

VI. Procedural Determinations

Executive Order 12866

    This rule is exempted from review by the Office of Management and 
Budget (OMB) under Executive Order 12866 (Regulatory Planning and 
Review).

Executive Order 12988

    The Department of the Interior has conducted the reviews required 
by section 3 of Executive Order 12988 (Civil Justice Reform) and has 
determined that, to the extent allowed by law, this rule meets the 
applicable standards of subsections (a) and (b) of that section. 
However, these standards are not applicable to the actual language of 
State regulatory programs and program amendments since each such 
program is drafted and promulgated by a specific State, not by OSM. 
Under sections 503 and 505 of SMCRA (30 U.S.C. 1253 and 1255) and 30 
CFR 730.11, 732.15, and 732.17(h)(10), decisions on proposed State 
regulatory programs and program amendments submitted by the States must 
be based solely on a determination of whether the submittal is 
consistent with SMCRA and its implementing Federal regulations and 
whether the other requirements of 30 CFR Parts 730, 731, and 732 have 
been met.

[[Page 6217]]

National Environmental Policy Act

    No environmental impact statement is required for this rule since 
section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that agency 
decisions on proposed State regulatory program provisions do not 
constitute major Federal actions within the meaning of section 
102(2)(C) of the National Environmental Policy Act (42 U.S.C. 
4332(2)(C)).

Paperwork Reduction Act

    This rule does not contain information collection requirements that 
require approval by OMB under the Paperwork Reduction Act (44 U.S.C. 
3507 et seq.).

Regulatory Flexibility Act

    The Department of the Interior has determined that this rule will 
not have a significant economic impact on a substantial number of small 
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). 
The State submittal which is the subject of this rule is based upon 
corresponding Federal regulations for which an economic analysis was 
prepared and certification made that such regulations would not have a 
significant economic effect upon a substantial number of small 
entities. Accordingly, this rule will ensure that existing requirements 
previously promulgated by OSM will be implemented by the State. In 
making the determination as to whether this rule would have a 
significant economic impact, the Department relied upon the data and 
assumptions for the corresponding Federal regulations.

Unfunded Mandates

    This rule will not impose a cost of $100 million or more in any 
given year on any governmental entity or the private sector.

List of Subjects in 30 CFR Part 948

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: January 27, 1999.
Michael K. Robinson,
Acting Regional Director, Appalachian Regional Coordinating Center.
    For the reasons set out in the preamble, Title 30, Chapter VII, 
Subchapter T of the Code of Federal Regulations is amended as set forth 
below:

PART 948--WEST VIRGINIA

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

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

    2. Section 948.15 is amended in the table by adding a new entry in 
chronological order by ``Date of Final Publication'' to read as 
follows:


Sec. 948.15  Approval of West Virginia regulatory program amendments.

* * * * *

----------------------------------------------------------------------------------------------------------------
                                            Date of final
  Original amendment submission date         publication                      Citation/description
----------------------------------------------------------------------------------------------------------------
 
*                  *                  *                  *                  *                  *
                                                        *
April 28, 1997.......................  February 9, 1999.......  W.Va. Code 22-3 Sections 3(u)(2)(1) (decision
                                                                 deferred), (2)(not approved), (3); 3(x),
                                                                 (y)(partial approval), (z)(partial approval);
                                                                 13(b)(20), (22), (c)(3)(decision deferred);
                                                                 15(h); 17(b); 18(c), (f); 28(a-c) (not
                                                                 approved), (d), (e)(decision deferred), (f). WV
                                                                 Regulations CSR 38-2 Sections 2.4, 2.43 (not
                                                                 approved), 2.95 (not approved), 2.108, 2.120;
                                                                 3.2.e; 3.12.a.1 (partial approval), .2 (partial
                                                                 approval); 3.14.b.7 & .8 deleted, .12.E, .15.B
                                                                 deleted, .13.B; 3.29.a (partial approval);
                                                                 3.35; 5.5.c; 6.5.a; 8.2.e; 9.2.i.2; 9.3.h.1,
                                                                 .2; 14.11.e, .f, .g, .h; 14.15.b.6.A, .c, .d;
                                                                 16.2.c (partial approval), .2, .3 (partial
                                                                 approval), .4 (partial approval); 20.1.e.
----------------------------------------------------------------------------------------------------------------

    3. Section 948.16 is amended by adding new paragraphs (www through 
hhhh) to read as follows:


Sec. 948.16  Required regulatory program amendments.

* * * * *
    (www) By April 12, 1999, West Virginia must submit either a 
proposed amendment or a description of an amendment to be proposed, 
together with a timetable for adoption, to adopt reinstatement 
procedures similar to its transfer requirements contained in CSR 38-2-
3.25 and to allow for public participation, require that the revoked 
permit meet the appropriate permitting requirements of the WVSCMRA, and 
require that the mining and reclamation plan be modified to address any 
outstanding violations for any permit reinstated pursuant to Sec. 22-3-
17(b) of the WVSCMRA.
    (xxx) By April 12, 1999, West Virginia must submit either a 
proposed amendment or a description of an amendment to be proposed, 
together with a timetable for adoption, to require that West Virginia 
amend its program by changing the phrase ``land and water resources'' 
to ``land or water resources'', in the definition of ``substantially 
disturb'' at 38-2-2.120, or by otherwise making it clear that the term 
``substantially disturb'', for the purposes of prospecting, includes a 
significant impact on either land or water resources.
    (yyy) By April 12, 1999, West Virginia must submit either a 
proposed amendment or a description of an amendment to be proposed, 
together with a timetable for adoption to revise 38-2-3.12.a.1., or 
otherwise amend the West Virginia program to clarify that approval of 
any alternative angle of draw will be based on a written finding that 
the proposed angle of draw has a more reasonable basis than the 30-
degree angle of draw based on site-specific geotechnical analysis of 
the potential impacts of the proposed mining operation.
    (zzz) By April 12, 1999, West Virginia must submit either a 
proposed amendment or a description of an amendment to be proposed, 
together with a timetable for adoption to revise 38-2-3.12.a.1., or 
otherwise amend the West Virginia program to require that the map of 
all lands, structures, and drinking, domestic and residential water 
supplies which may be materially damaged by subsidence show the type 
and location of all such lands, structures, and drinking, domestic and 
residential water supplies within the permit and adjacent areas, and to 
require that the permit application include a narrative indicating 
whether subsidence, if it occurred, could cause material damage to or 
diminish the value or reasonably foreseeable use of such structures or 
renewable resource lands or could contaminate, diminish, or interrupt 
drinking, domestic, or residential water supplies.
    (aaaa) By April 12, 1999, West Virginia must submit either a 
proposed amendment or a description of an amendment to be proposed, 
together with a timetable for adoption to revise

[[Page 6218]]

CSR 38-2-3.12.a.2., or otherwise amend the West Virginia program to 
require that the water supply survey required by CSR 38-2-3.12.a.2. 
include all drinking, domestic, and residential water supplies within 
the permit area and adjacent area, without limitation by an angle of 
draw, that could be contaminated, diminished, or interrupted by 
subsidence.
    (bbbb) By April 12, 1999, West Virginia must submit either a 
proposed amendment or a description of an amendment to be proposed, 
together with a timetable for adoption to revise 38-2-3.12.a.2., or 
otherwise amend the West Virginia program to require that the permit 
applicant pay for any technical assessment or engineering evaluation 
used to determine the premining condition or value of non-commercial 
buildings or occupied residential dwellings or structures related 
thereto and the quality of drinking, domestic or residential water 
supplies, and to require that the applicant provide copies of any 
technical assessment or engineering evaluation to the property owner 
and to the regulatory authority.
    (cccc) By April 12, 1999, West Virginia must submit either a 
proposed amendment or a description of an amendment to be proposed, 
together with a timetable for adoption to amend the definition of 
``non-commercial building'' at 38-2-3.12.a.2. to clarify that ``non-
commercial building'' includes such buildings used on a regular or 
temporary basis.
    (dddd) By April 12, 1999, West Virginia must submit either a 
proposed amendment or a description of an amendment to be proposed, 
together with a timetable for adoption to amend its regulations at CSR 
38-2-16.2.c.3., or otherwise amend the West Virginia program, to 
provide that a rebuttable presumption of causation would exist within 
the applicable angle of draw, regardless of whether or not a 
presubsidence survey has been conducted.
    (eeee) By April 12, 1999, West Virginia must submit either a 
proposed amendment or a description of an amendment to be proposed, 
together with a timetable for adoption to amend its regulations at CSR 
38-2-16.2.c.3.B., or otherwise amend its program, to make it clear that 
the presumption of causation of damage by subsidence can be rebutted by 
evidence that the damage was proximately caused by some other factors 
and was not proximately caused by subsidence.
    (ffff) By April 12, 1999, West Virginia must submit either a 
proposed amendment or a description of an amendment to be proposed, 
together with a timetable for adoption to amend 38-2-16.2.c.4., or 
otherwise amend the West Virginia program, to be no less effective than 
the Federal regulations at 30 CFR 817.121(c)(5), which provide that an 
extension of the 90-day abatement period may be granted for one of only 
three reasons: that subsidence is not complete; that not all subsidence 
related material damage has occurred; or that not all reasonably 
anticipated changes have occurred affecting the protected water supply.
    (gggg) By April 12, 1999, West Virginia must submit either a 
proposed amendment or a description of an amendment to be proposed, 
together with a timetable for adoption to amend 38-2-16.2.c.4., or to 
otherwise amend the West Virginia program, to be no less effective than 
the Federal regulations at 30 CFR 817.121(c)(5) by requiring additional 
bond whenever protected water supplies are contaminated, diminished or 
interrupted by underground mining operations conducted after October 
24, 1992. The amount of the additional bond must be adequate to cover 
the estimated cost of replacing the affected water supply.
    (hhhh) By April 12, 1999, West Virginia must submit either a 
proposed amendment or a description of an amendment to be proposed, 
together with a timetable for adoption to amend CSR 38-2-16.2.c.4., or 
to otherwise amend the West Virginia program, to be no less effective 
than the Federal regulations at 30 CFR 817.121(c)(5), by requiring that 
the 90-day period before which additional bond must be posted begin to 
run from the date of occurrence of subsidence-related material damage.
[FR Doc. 99-3128 Filed 2-8-99; 8:45 am]
BILLING CODE 4310-05-P