West Virginia Regulatory Program, 6575-6591 [05-2411]

Agencies

• DEPARTMENT OF THE INTERIOR
• Office of Surface Mining Reclamation and Enforcement
• Surface Mining Reclamation and Enforcement Office

[Federal Register Volume 70, Number 25 (Tuesday, February 8, 2005)]
[Rules and Regulations]
[Pages 6575-6591]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 05-2411]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 948

[WV-102-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: We are approving, with certain exceptions, a proposed 
amendment to the West Virginia regulatory program (the West Virginia 
program) under the Surface Mining Control and Reclamation Act of 1977 
(SMCRA or the Act). West Virginia proposed revisions to the Code of 
State Regulations (CSR), as authorized by Committee Substitute for 
House Bill 4193. The State revised its program to be consistent with 
certain corresponding Federal requirements, and to include other 
amendments at its own initiative. The amendments include, among other 
things, new provisions to ensure reclamation and husbandry techniques 
that are conducive to the development of productive forestlands and 
wildlife habitat after mining.

EFFECTIVE DATE: February 8, 2005.

FOR FURTHER INFORMATION CONTACT: Mr. Roger W. Calhoun, Director, 
Charleston Field Office, 1027 Virginia Street East, Charleston, West 
Virginia 25301. Telephone: (304) 347-7158, Internet address: 
chfo@osmre.gov.

SUPPLEMENTARY INFORMATION:

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

I. Background on the West Virginia Program

    Section 503(a) of the Act permits a State to assume primacy for the 
regulation of surface coal mining and reclamation operations on non-
Federal and non-Indian lands within its borders by demonstrating that 
its program includes, among other things, ``* * * a State law which 
provides for the regulation of surface coal mining and reclamation 
operations in accordance with the requirements of the Act * * *; and 
rules and regulations consistent with regulations issued by the 
Secretary pursuant to the Act.'' See 30 U.S.C. 1253(a)(1) and (7). On 
the basis of these criteria, the Secretary of the Interior 
conditionally approved the West Virginia program on January 21, 1981. 
You can find background information on the West Virginia program, 
including the Secretary's findings, the disposition of comments, and 
conditions of approval of the West Virginia program in the January 21, 
1981, Federal Register (46 FR 5915). You can also find later actions 
concerning West Virginia's program and program amendments at 30 CFR 
948.10, 948.12, 948.13, 948.15, and 948.16.

II. Submission of the Amendment

    By letter dated March 25, 2004 (Administrative Record Number WV-
1389), the West Virginia Department of Environmental Protection (WVDEP) 
submitted an amendment to its program under SMCRA (30 U.S.C. 1201 et 
seq.). The amendment consists of Committee Substitute for House Bill 
4193, which authorizes amendments to the West Virginia Surface Mining 
Reclamation Rules at CSR 38-2. Committee Substitute for House Bill 4193 
passed the Legislature on March 12, 2004, and was signed by the 
Governor on April 5, 2004. West Virginia Code (W.Va. Code or WV Code) 
64-3-1(g) specifically authorizes WVDEP to promulgate the revisions as 
legislative rules.
    In its letter, the WVDEP stated that the rules at CSR 38-2 were 
amended to be consistent with the counterpart Federal regulations. In 
addition, the amendment adds new provisions concerning ``Forestland'' 
and ``Wildlife'' to ensure that reclamation techniques and husbandry 
practices that are conducive to productive forestlands and wildlife 
habitats are followed. The WVDEP also included in its submittal, a 
memorandum from the West Virginia State Forester in which the State 
Forester endorsed the proposed rules and also provided comments on 
them.
    The WVDEP also submitted Committee Substitute for Senate Bill 616, 
which was adopted by the Legislature on March 21, 2004. The Bill 
increased the membership of the Environmental Protection Advisory 
Council and established a new Quality Assurance Compliance Advisory 
Committee. Because this Bill was vetoed by the Governor on April 6, 
2004, it is not being considered in this rulemaking.
    The amendment submitted by WVDEP includes amendments to CSR 38-2-24 
concerning the exemption for coal extraction incidental to the removal 
of other minerals. However, none of these provisions at CSR 38-2-24, 
which the State is proposing to amend, were previously submitted to OSM 
for approval. Therefore, we included CSR 38-2-24 in its entirety in our 
proposed rule notice, and we requested public comment on all of Section 
24 (Administrative Record Number WV-1390) (Finding 10 below).
    We announced receipt of the proposed amendment in the May 12, 2004, 
Federal Register (69 FR 26340). In the same document, we opened the 
public comment period and provided an opportunity for a public hearing 
or meeting on the adequacy of the proposed amendment (Administrative 
Record Number WV-1396). We did not hold a hearing or a meeting because 
no one requested one. The public comment period closed on June 11, 
2004. We received comments from one individual and two Federal 
agencies.
    We note that the proposed rules that we announced in the May 12, 
2004, Federal Register differ in some respects from the final rules 
that are on file with the West Virginia Secretary of State. While these 
differences are minor and do not affect our findings below one way or 
the other, we recommend that the State correct these differences to 
avoid any confusion in the future.

III. OSM's Findings

    Following are the findings we made concerning the amendment under 
SMCRA and the Federal regulations at 30 CFR 732.15 and 732.17. We are 
approving the amendment, except as discussed below. Any revisions that 
we do not specifically discuss below concern nonsubstantive wording or 
editorial changes and are approved here without discussion.

1. CSR 38-2-3.12.a.1. Subsidence Control Plan

    This provision is amended by changing a term relating to the scale 
of the topographic map that must be submitted with the subsidence 
control plan. In the first sentence, the word ``less'' is deleted and 
replaced by the word ``more.'' In the last sentence, the word ``less'' 
is deleted and replaced by the word ``larger.''
    The revision of the scale term used in this provision is intended 
to adopt standard language concerning map scales. Concerning the map 
scale of 1'' = 1000' or ``larger,'' the word ``larger'' is intended to 
indicate that an acceptable scale would also be, for example, 1'' =

[[Page 6576]]

750' or 1'' = 500'. Such larger scales, though smaller in number, would 
allow a map to accurately show the location of small structures such as 
houses, churches, community buildings, etc.
    We find that the amendment to the last sentence, where the word 
``less'' is deleted and replaced by the word ``larger,'' is consistent 
with and no less effective than the Federal regulations at 30 CFR 
784.20(a)(1) concerning the map to be submitted with a pre-subsidence 
survey and can be approved. The amendment to the first sentence, 
however, contains an inadvertent error. In the first sentence, the word 
``less'' is deleted and replaced by the word ``more.'' It is our 
understanding that the word ``more'' is intended to be ``larger,'' and 
the inadvertent error will be corrected in the future. Our approval of 
the amendments to CSR 38-2-3.12.a.1 is based upon that understanding.
    We note that the amendments to this paragraph satisfy an issue in a 
30 CFR part 732 notification dated June 7, 1996, that we had previously 
sent the State (Administrative Record Number WV-1037(a)). The Federal 
regulations at 30 CFR 732.17(d) provide that OSM must notify the State 
of all changes in SMCRA and the Federal regulations that will require 
an amendment to the State program. Such letters sent by us are often 
referred to as ``732 letters or notifications.'' The part 732 letter 
issue that is being satisfied concerns the scale of the subsidence 
control plan map as required by the State at CSR 38-2-3.12.a.1.

2. CSR 38-2-7.6. Forest Land

    This entire subsection is new. As we stated above at Section II, 
Submission of the Amendment, the State is adding new provisions 
concerning ``Forestland'' and ``Wildlife'' to ensure that reclamation 
techniques and husbandry practices that are conducive to productive 
forestlands and wildlife habitats are followed by coal mining 
operators. The WVDEP also included in its submittal, a memorandum from 
the West Virginia State Forester in which the State Forester endorsed 
the proposed rules and also provided comments on them.
    Trees are a renewable resource, and we believe that reforestation 
is a good investment, both environmentally and economically. 
Environmentally, trees minimize soil erosion, remove carbon dioxide 
from the air, provide wildlife habitat and diverse plant species, and 
help conserve water resources. Economically, high quality timber can 
offer substantial revenue for landowners and job opportunities for 
local residents in terms of logging, furniture making, woodworking, 
etc. In addition, planting trees restores our forests, which are 
important recreational areas for hunting, hiking, camping and mountain 
biking.
    For the past several years, OSM has been working with its partners 
in the coal mining States to identify and promote methods that would 
enhance postmining land use by planting more high-value hardwood trees 
on reclaimed coal mined lands and enhancing the survival and growth 
rates of those trees that are planted. To accomplish these goals, OSM 
conducted several outreach symposia and interactive forums with coal 
mining States, industry representatives, reclamation researchers and 
others to identify information on successful reforestation efforts and 
technologies. OSM has also sought to identify and remove specific 
impediments to tree planting and for promoting technologies with 
potential for enhancing reforestation efforts. Recently, to promote 
reforestation in the Appalachian Region, OSM and the States of 
Kentucky, Maryland, Ohio, Pennsylvania, Tennessee, Virginia and West 
Virginia have jointly started the Appalachian Regional Reforestation 
Initiative (ARRI) to accomplish the goals of reclaiming more active and 
abandoned mined lands with hardwood forests, and increasing the 
survival and growth rates of the planted trees.
    The ARRI promotes the use of specific planting methods that 
increase the survival and growth rates of trees. Collectively, these 
methods are referred to as the forestry reclamation approach (FRA). The 
FRA methods focus on the following: (1) Creating a suitable rooting 
medium for good tree growth that is no less than four feet deep and 
comprised of topsoil, weathered sandstone and/or the best available 
material; (2) loosely grading the topsoil or topsoil substitutes to 
create a non-compacted growth medium; (3) use of native and non-
competitive ground covers that are compatible with growing trees; (4) 
planting two types of trees--early succession species for wildlife and 
soil stability, and commercially valuable crop trees; and (5) using 
proper tree planting techniques. Over the past 20 years of Federal 
oversight, OSM has learned that soil compaction by heavy equipment 
during postmining reclamation is a primary factor that inhibits 
vigorous tree growth. Likewise, OSM has learned that competition with 
ground cover vegetation also seriously inhibits successful 
reforestation. The FRA methods identified above clearly focus on 
eliminating both of these impediments to successful reforestation.
    West Virginia's proposed regulations at CSR 38-2-7.6 concerning 
forest land postmining land use (this Finding), and CSR 38-2-7.7 
concerning wildlife postmining land use (Finding 3 below) incorporate 
the FRA methods identified above and are intended to promote vigorous 
hardwood forests, while providing for wildlife habitat. In this finding 
and in Finding 3 below, in addition to evaluating the proposed 
provisions for consistency with the Federal regulations, we will also 
review the proposed provisions in the light of the planting methods 
recommended under the FRA for promoting vigorous hardwood forests.
    a. 7.6.a. This subsection provides as follows:

    7.6.a. The Secretary may authorize forest land as a postmining 
land use only if the following conditions have been met: Provided, 
however; this subsection only applies to AOC mining operations that 
propose to utilize auger, area, mountain top and contour methods of 
mining. Proposed underground mining, coal preparation facilities, 
coal refuse disposal, haulroads and their related incidental 
facilities are not subject to the provisions of this subsection but 
must comply with all other applicable sections of this rule.

    New CSR 38-2-7.6.a clarifies that the forest land provisions at CSR 
38-2-7.6 apply only to mining operations on lands that will be returned 
to their approximate original contour (AOC). Other State forestry-
related provisions apply to mining operations on lands that receive a 
variance from the requirements to return mined lands to AOC under CSR 
38-2-14.12 and W.Va. Code 22-3-13(c). Specifically, CSR 38-2-7.4 
provides the standards applicable to mountaintop removal mining 
operations with a variance from the requirement to return the land to 
AOC and that have a postmining land use of commercial forestry and 
forestry. We note that the proposed provision does not specifically 
provide that other applicable provisions of the approved surface mining 
program continue to apply. However, there is nothing in proposed 
subsection 7.6.a that supersedes or negates compliance with other 
applicable provisions such as with the general provisions concerning 
premining and postmining land use at CSR 38-2-7.1, the alternative 
postmining land use requirements at CSR 38-2-7.3, or with the bond 
release requirements at CSR 38-2-12.2. Therefore, it is our 
understanding that the other applicable provisions of the West Virginia 
program continue to apply to the extent they are consistent with 
promoting vigorous reforestation as stated above. While there is no 
specific Federal counterpart to proposed CSR 38-2-7.6.a, we find that 
this provision

[[Page 6577]]

is not inconsistent with the Federal regulations at 30 CFR 780.23 
concerning reclamation plans and postmining land use information and 
can be approved. Our approval of this provision is based upon our 
understanding noted above.
    b. 7.6.b. Planting Plan. Subsection 7.6.b. contains requirements 
concerning the development, contents, and review of the planting plan. 
Subsection 7.6.b. contains the following requirements.

    7.6.b.1.A. West Virginia registered professional forester shall 
develop a planting plan for the permitted area that meets the 
requirements of the West Virginia Surface Coal Mining and 
Reclamation Act. This plan shall be made a part of the mining permit 
application. The plans shall be in sufficient detail to demonstrate 
that the requirements of forestland use can be met. The minimum 
contents of the plan shall be as follows:
    7.6.b.1.A.1. A premining native soils map and brief description 
of each soil mapping unit to include at a minimum: Areal extent 
expressed in acres, total depth and volume to bedrock, soil 
horizons, including the O, A, E, B, and C horizon depths, soil 
texture, structure, color, reaction, bedrock type, and a site index 
for northern red oak. A site index for white oak for each soil 
mapping unit should also be provided if available. A weighted, 
average site index for northern red oak, based on acreage per soil 
mapping unit, shall be provided for the permitted area.
    7.6.b.1.A.2. A surface preparation plan that includes a 
description of the methods for replacing and grading the soil and 
other soil substitutes and their preparation for seeding and tree 
planting.
    7.6.b.1.A.3. Liming and fertilizer plans.
    7.6.b.1.A.4. Mulching type, rates and procedures.
    7.6.b.1.A.5. Species seeding rates and procedures for 
application of perennial and annual herbaceous, shrub and vine plant 
materials for ground cover.
    7.6.b.1.A.6. A site specific tree planting prescription to 
establish forestland to include species, stems per acre and planting 
mixes.
    7.6.b.1.B. Review of the Planting plan.
    7.[6.]b.1.B.1. Before approving a forestland postmining land 
use, the Secretary shall assure that the planting plan is reviewed 
and approved by a forester employed [by] the Department of 
Environmental Protection. Before approving the planting plan, the 
Secretary shall assure that the reviewing forester has made site-
specific written findings adequately addressing each of the elements 
of the plans. The reviewing forester shall make these findings 
within 45 days of receipt of the plans.
    7.6.b.1.B.2. If after reviewing the planting plan, the reviewing 
forester finds that the plan complies with the requirements of this 
section, they shall prepare written findings stating the basis of 
approval. A copy of the findings shall be sent to the Secretary and 
shall be made part of the Facts and Findings section of the permit 
application file.
    The Secretary shall ensure that the plans comply with the 
requirements of this rule and other provisions of the approved State 
surface mining program.
    7.6.b.1.B.3. If the reviewing forester finds the plans to be 
insufficient, the forester shall either:
    7.6.b.1.B.3.(a). Contact the preparing forester and the 
permittee and provide the permittee with an opportunity to make the 
changes necessary to bring the planting plan into compliance; or,
    7.6.b.1.B.3.(b). Notify the Secretary that the planting plan 
does not meet the requirements of this rule. The Secretary may not 
approve the surface mining permit until finding that the planting 
plans satisfy all of the requirements of this rule.

    We note that proposed CSR 38-2-7.6.b.1.B.2. provides that the 
Secretary of WVDEP shall ensure that the planting plans submitted under 
CSR 38-2-7.6.b. comply with the requirements of this rule (CSR 38-2) 
and other provisions of the approved State surface mining program. That 
is, in addition to complying with the provisions of CSR 38-2-7.6 
concerning forest land postmining land use, the applicant must also 
comply with the other provisions of the approved State surface mining 
program, such as CSR 38-2-9.3.a., which allows the planting plan to be 
amended or modified prior to implementation, and CSR 38-2-9.3.b., which 
requires the submission of a final planting report following Phase 1 
bond reduction.
    It is our understanding that the ``forester employed [by] the 
Department of Environmental Protection'' at proposed CSR 38-2-
7.6.b.1.B.1 would only be a forester within that agency. The Federal 
regulations at 30 CFR 816.116(b)(3)(i) provide that minimum stocking 
and planting arrangements shall be specified by the regulatory 
authority on the basis of local and regional conditions and after 
consultation with and approval by the State agency responsible for the 
administration of forestry. Consultation and approval may occur on 
either a program wide or a permit-specific basis. Under the approved 
State program, consultation regarding stocking standards occurs on a 
program wide basis with assistance from the Division of Forestry on an 
as needed basis. A memorandum of understanding (MOU) dated June 4, 
1998, currently exists between the Division of Forestry and the WVDEP. 
See Administrative Record Number WV-1109. It is our understanding that 
this MOU is being updated and the required consultation with the State 
agency responsible for the administration of forestry would continue to 
occur under this MOU (Administrative Record Number WV-1404). We note 
that this agreement is being updated to provide for future coordination 
in the development and approval of planting plans specified in this 
proposed provision and to ensure compliance with WV Code 30-19-1 et 
seq., concerning Registered Foresters. Under the revised MOU, the 
Division of Forestry will provide WVDEP technical assistance upon 
request and assist State registered professional foresters in the 
development of those permit applications where the postmining land use 
includes forest land (CSR 38-2-9.3.g), commercial reforestation (CSR 
38-2-9.3.h), commercial forestry (CSR 38-2-7.4), or forest land 
(proposed CSR 38-2-7.6).
    There are no direct Federal counterparts to the proposed provisions 
at subsection 7.6.b concerning planting plan. However, we find that the 
proposed provisions at CSR 38-2-7.6.b. are not inconsistent with the 
Federal requirements at 30 CFR 780.18(b)(5) concerning revegetation 
plan, and we are approving these provisions based upon our 
understanding, as noted above. In the future, if the State fails to 
update the MOU or fails to continue the MOU in force, OSM may 
reconsider this decision and, if appropriate, require the State to 
amend the West Virginia program to add the specifics contained in the 
MOU, including the requirement to consult with the Division of 
Forestry.
    c.7.6.c. Soil placement, Substitute material and Grading. This new 
provision provides as follows:

    7.6.c.1. Except for valley fill faces, soil or soil substitutes 
shall be redistributed in a uniform thickness of at least four feet 
across the mine area.
    7.6.c.2. The use of topsoil substitutes may be approved by the 
Secretary providing the applicant demonstrates: the volume of 
topsoil on the permit area is insufficient to meet the depth 
requirements of 7.6.c.1, the substitute material consists of at 
least 75% sandstone, has a composite paste pH between 5.0 and 7.5, 
has a soluble salt level of less than 1.0 mmhos/cm. and is in 
accordance with 14.3.c. [concerning Top Soil Substitutes.]. The 
Secretary may allow substitute materials with less than 75% 
sandstone provided the applicant demonstrates the overburden in the 
mine area does not contain an adequate volume of sandstone to meet 
the depth requirements of 7.6.c.1, or the quality of sandstone in 
the overburden does not meet the requirements of this rule. This 
information shall be made a part of the permit application.
    7.6.c.3. Soil shall be placed in a loose and non-compacted 
manner while achieving a static safety factor of 1.3 or greater. 
Grading and tracking shall be minimized to reduce compaction. Final 
grading and tracking shall be prohibited on all areas that are equal 
to or less than a 30 percent slope. Organic debris such as forest 
litter, tree tops, roots, and root balls may be left on and in the 
soil.
    7.6.c.4. The permittee may regrade and reseed only those rills 
and gullies that are unstable and/or disrupt the approved postmining 
land use or the establishment of

[[Page 6578]]

vegetative cover or cause or contribute to a violation of water 
quality standards for the receiving stream.

    We find that proposed 7.6.c.1, which requires at least four feet of 
soil or soil substitutes to be redistributed in a uniform thickness, is 
consistent with and no less effective than the Federal regulations 
concerning redistribution of topsoil at 30 CFR 816.22(d) and can be 
approved. As we noted above in Finding 2.a., it is our understanding 
that the other applicable provisions of the West Virginia program, such 
as CSR 38-2-14.3.a concerning the removal and storage of topsoil, will 
continue to apply to the extent they are consistent with these 
provisions in promoting reestablishment of vigorous hardwood forests. 
Our approval of proposed 7.6.c.1 is based upon that understanding.
    Proposed 7.6.c.2, concerning the demonstrations needed for the 
approval of topsoil substitutes, is consistent with and no less 
effective than 30 CFR 816.22(b) concerning soil substitutes and 
supplements and can be approved. We note that proposed 7.6.c.2 
specifically requires compliance with the topsoil substitute 
requirements at CSR 38-2-14.3.c., which require a demonstration of the 
suitability of the substitutes for the approved postmining land use.
    We find that proposed 7.6.c.3., which requires non-compaction of 
the replaced soil, is consistent with and no less effective than the 
Federal regulations at 30 CFR 816.22(d), concerning redistribution of 
soil and can be approved. 30 CFR 816.22(d) requires redistribution of 
soil in a manner which, at (i), is consistent with the approved 
postmining land use, and, at (ii), prevents excess compaction of the 
materials.
    The proposed requirement for a static safety factor of 1.3 at 
7.6.c.3 is consistent with and no less effective than the Federal 
regulations at 30 CFR 816.102(a)(3), which require the backfill to 
achieve a long-term slope stability factor of 1.3 and to prevent 
slides. The proposed authorization to allow organic debris to be left 
on the surface and in the soil is not inconsistent with the Federal 
regulations, so long as placement of the organic material is limited to 
the topsoil, or topsoil substitute, and this practice does not affect 
stability in accordance with the Federal regulations at 30 CFR 
816.71(e)(1) and 816.102(a)(3). The emphasis of the State provisions 
toward minimizing compaction and inoculating the soil with organic 
materials is consistent with the needs of forestry and tree growth, and 
with the Federal soil redistribution requirements at 30 CFR 816.22(d). 
In addition, the proposed rule prohibits ``final'' grading and tracking 
on slopes of less than 30 percent or about 17 degrees. We note that the 
grading limitation on slopes of less than 30 percent at proposed 
7.6.c.3 is restricted to ``final'' grading or tracking, and initial or 
subsequent grading will not be prohibited on any slopes, regardless of 
steepness. Furthermore, it is our understanding that if some areas with 
less than 30 percent slope require grading or tracking to ensure 
stability, minimize erosion, or to prevent slippage, the proposed rule 
would not preclude an operator from undertaking grading or tracking and 
normal husbandry practices as provided by CSR 38-2-11.7 and 14.15.a.1 
and the Federal regulations at 30 CFR 816.102(a)(3) and 816.116(c)(4). 
Our approval of these provisions is based upon that understanding.
    Proposed 7.6.c.4, provides for the repair of rills and gullies that 
are unstable and/or disrupt the postmining land use or vegetative cover 
or cause or contribute to a violation of water quality standards. The 
Federal regulations at 30 CFR 816.95(b) require that rills and gullies 
that either (1) disrupt the postmining land use or the reestablishment 
of the vegetative cover or (2) cause or contribute to the violation of 
water quality standards must be filled, regraded, or otherwise 
stabilized. We understand the amended State provision concerning repair 
of rills and gullies at CSR 38-2-7.6.c.4 to mean that a permittee is 
generally not authorized to repair rills and gullies, except those 
rills and gullies that are unstable and/or disrupt the approved 
postmining land use, the establishment of vegetative cover, or cause or 
contribute to a violation of water quality standards for the receiving 
stream. This provision is intended to eliminate the compaction of soils 
and the destruction of established vegetative cover that would normally 
take place during routine repair of rills and gullies. Such compaction 
can have a detrimental effect on tree growth. Therefore, we find the 
limitation on the repair of rills and gullies is intended to protect 
tree seedlings and other vegetative growth and help assure the success 
of the forest land postmining land use.
    CSR 38-2-7.6.c.4 does not explicitly require the repair of rills 
and gullies that disrupt the approved postmining land use, the 
establishment of vegetative cover, or cause or contribute to a 
violation of water quality standards for the receiving stream. However, 
the proposed provision in no way prohibits the repair of such rills and 
gullies. Moreover, the approved State program already requires 
restoration of the premining land use, or establishment of an approved 
alternative postmining land use after mining (CSR 38-2-7.1.a. and 7.3, 
respectively), the establishment of vegetative cover (CSR 38-2-
7.6.e.1), and compliance with applicable water quality standards (CSR 
38-2-14.5.b). It necessarily follows from these provisions that rills 
and gullies that could prevent compliance with the above requirements 
must be filled, regraded, or otherwise stabilized. For this reason, we 
find that the proposed amendment at CSR 38-2-7.6.c.4, taken in concert 
with the above-referenced State regulatory requirements, does not 
render the program less effective than 30 CFR 816.95(b) and can be 
approved, so long as it is implemented in a manner consistent with that 
Federal provision and CSR 38-2-9.2.e. If, in future reviews, we should 
determine that West Virginia is implementing these provisions in a 
manner that is inconsistent with this finding, a further amendment may 
be required.
    d. 7.6.d. Liming and Fertilizing. This new provision provides as 
follows:

    7.6.d. Liming and Fertilizing.
    7.6.d.1. Lime shall be required where the average soil pH is 
less than 5.0. Lime rates will be used to achieve a uniform soil pH 
of 5.5. Soil pH may vary from 5.0 to a maximum of 7.5. An alternate 
maximum or minimum soil pH may be approved based on the optimum pH 
for the revegetation species.
    7.6.d.2. The Secretary shall require the permittee to fertilize 
based upon the needs of trees and establishment of ground cover to 
control surface soil erosion. Between 200 and 300 lbs./acre of 10-
20-10 fertilizer shall be applied with the ground cover seeding. 
Other fertilizer materials and rates may be used only if the 
Secretary finds that the substitutions are appropriate based on soil 
testing performed by State certified laboratories.

    There are no direct Federal counterparts to the specific liming and 
fertilizing rates proposed by West Virginia. We find, however, that the 
amendments do not render the West Virginia program less effective than 
the Federal requirements at 30 CFR 779.21 concerning soil resources 
information, 30 CFR 780.18 concerning reclamation plan general 
requirements, and 30 CFR 816.22 concerning topsoil and subsoil and can 
be approved.
    e. 7.6.e. Revegetation. This new provision provides as follows:

    7.6.e. Revegetation.
    7.6.e.1. Temporary erosion control vegetative cover shall be 
established as contemporaneously as practical with backfilling and 
grading until a permanent tree cover can be established. This cover 
shall consist of a combination of native and domesticated non-
competitive and non-

[[Page 6579]]

invasive cool and warm species grasses and other herbaceous vine or 
shrub species including legume species and shrubs. All species shall 
be slow growing and compatible with tree establishment and growth. 
The ground vegetation shall be capable of stabilizing the soil from 
excessive erosion, but the species should be slow growing and non-
invasive to allow the establishment and growth of native herbaceous 
plants and trees. Seeding rates and composition must be in the 
planting plan. The following ground cover mix and seeding rates 
(lb./acre) are strongly recommended: winter wheat or oats (10 lbs./
acre), fall seeding, foxtail millet (5 lbs./acre), summer seeding, 
weeping lovegrass (3 lbs./acre or redtop at 5 lbs./acre), kobe 
lespedeza (5 lbs./acre), birdsfoot trefoil (10lbs.,/acre), perennial 
rye grass (10 lbs.,/acre) and white clover (3 lbs./acres). Kentucky 
31 fescue, serecia lespedeza, all vetches, clovers (except ladino 
and white clover) and other aggressive or invasive species shall not 
be used. Alternate seeding rates and composition will be considered 
on a case by case basis by the Secretary and may be approved if site 
specific conditions necessitate a deviation from the above. All 
mixes shall be compatible with the plant and animal species of the 
region and forestland use.
    7.6.e.2. The selection of trees and shrubs species shall be 
based [on] each species' site requirements (soil type, degree of 
compaction, ground cover, competition, topographic position and 
aspect) and in accordance with the approved planting plan prepared 
by a registered professional forester. The stocking density of woody 
plants shall be at least 500 plants per acre.
    7.6.e.2.A. The stocking density for trees shall be at least 350 
plants per acre. There shall be a minimum of five species of trees, 
to include at least three higher value hardwood species (white oak, 
northern red oak, black oak, chestnut oak, white ash, sugar maple, 
black cherry and yellow poplar) and at least two lower value 
hardwoods or softwoods species (all hickories, red maple, basswood, 
cucumber magnolia, sycamore, white pine, Virginia pine and pitch x 
loblolly hybrid pine). There shall be at least 210 high value 
hardwoods plants per acre and 140 lower value hardwood or softwood 
plants per acre (70 plants per acre for each species selected).
    7.6.e.2.B. The stocking density of shrubs and other woody plants 
shall not exceed 150 plants per acre. There shall be a minimum of 
three species of shrubs or other woody plants (black locust, bristly 
locust, dogwood, Eastern redbud, black alder, bigtooth aspen and 
bicolor lespedeza, (50 plants per acre for each species selected).

    There are no direct Federal counterpart regulations to the specific 
provisions of CSR 38-2-7.6.e.1 concerning mixes and seeding rates of 
temporary erosion control vegetative cover. In addition to being 
compatible with plant and animal species of the region, it is our 
understanding that the mixes, shrubs, tree seedlings and any 
alternatives will, as provided by subsections 9.2.a, b, c and h and 30 
CFR 816.111(a) and (b), be compatible with the approved postmining land 
use, have the same seasonal characteristics of growth as the original 
vegetation, be capable of self regeneration and plant succession, and 
meet State and Federal seed, poisonous, and noxious plant and 
introduced species requirements. Our finding that the proposed State 
provisions are not inconsistent with the Federal requirements 
concerning revegetation at 30 CFR 816.111 and 816.116 is based upon 
that understanding and these provisions can be approved, except as 
noted below.
    The proposed provision at CSR 38-2-7.6.e.1 provides that the 
``ground vegetation shall be capable of stabilizing the soil from 
excessive erosion.'' That provision is less effective than the Federal 
regulations at 30 CFR 816.111(a)(4), which provides that the permittee 
shall establish a vegetative cover that is ``[c]apable of stabilizing 
the soil surface from erosion.'' As proposed, CSR 38-2-7.6.e.1 is less 
effective than 30 CFR 816.111(a)(4) because the proposed standard to 
stabilize the soil is modified by the word ``excessive.'' Therefore, we 
are not approving the word ``excessive'' in the phrase ``capable of 
stabilizing the soil from excessive erosion'' at CSR 38-2-7.6.e.1.
    We find that the requirements concerning the selection of tree and 
shrub species at CSR 38-2-7.6.e.2 are consistent with the general 
Federal requirements concerning revegetation at 30 CFR 816.111 and can 
be approved. We also find that the proposed stocking density of trees 
at CSR 38-2-7.6.e.2.A and the stocking density of shrubs at CSR 38-2-
7.6.e.2.B, which have been approved by the Division of Forestry, are 
consistent with and no less effective than the Federal requirements 
concerning revegetation standards for success at 30 CFR 816.116(b)(3) 
and can be approved.
    f. 7.6.f. Standards for Success. This new provision provides as 
follows:

    7.6.f. Standards for Success.
    7.6.f.1. The success of vegetation shall be determined on the 
basis of tree and shrub survival and ground cover.
    7.6.f.2. Minimum success standard shall be tree survival 
(including volunteer tree species) and/or planted shrubs per acre 
equal to or greater than four hundred and fifty (450) trees per acre 
and a seventy percent (70%) ground cover where ground cover includes 
tree canopy, shrub and herbaceous cover, and organic litter during 
the growing season of the last year of the responsibility period; 
and
    7.6.f.3. At the time of final bond release, at least eighty (80) 
percent of all trees and shrubs used to determine such success must 
have been in place for at least sixty (60) percent of the applicable 
minimum period of responsibility. Trees and shrubs counted in 
determining such success shall be healthy and shall have been in 
place for not less than two (2) growing seasons.

    We find that the proposed success standards for revegetation at CSR 
38-2-7.6.f. are consistent with and no less effective than the Federal 
standards for revegetation success of lands to be developed for fish 
and wildlife habitat, recreation, shelter belts, or forest products at 
30 CFR 816.116(b)(3) and can be approved. We note that there is an 
apparent typographical error in paragraph 7.6.f.2. Immediately after 
providing that the minimum success standard shall be tree and shrub 
survival per acre, the provision states that the minimum standard shall 
be ``450 trees per acre and a seventy percent (70%) ground cover * * 
*.'' It is our understanding that the intended meaning of this 
provision is that the minimum success standard of tree and shrub 
survival per acre shall be 450 trees/shrubs per acre with a seventy 
percent (70%) ground cover, and that this apparent typographical error 
will be corrected in the future. Our finding that CSR 38-2-7.6.f. is 
consistent with and no less effective than the Federal standards at 30 
CFR 816.116(b)(3) and can be approved is based upon that understanding.

3. CSR 38-2-7.7 Wildlife

    a. 7.7.a. This subsection is new and provides as follows:

    7.7.a. The Secretary may authorize wildlife as a postmining land 
use only if the following conditions have been met. This subsection 
applies to all AOC mining operations that propose a postmining land 
use of wildlife. The Secretary shall ensure that the plans comply 
with the requirements of this rule and other provisions of the 
approved State surface mining program.

    New subsection CSR 38-2-7.7.a provides that subsection CSR 38-2-7.7 
applies only to surface coal mining operations where the land will be 
returned to AOC. In addition, the provision makes clear that plans 
submitted to comply with CSR 38-2-7.7 must also comply with the 
requirements of the other provisions of the approved State surface 
mining program. That is, in addition to complying with the provisions 
of CSR 38-2-7.7 concerning wildlife postmining land use, the applicant 
must also comply with the other provisions of the approved State 
surface mining program such as CSR 38-2-3.16 concerning fish and 
wildlife resources information, CSR 38-2-7.3 concerning alternative 
postmining land use criteria, or CSR 38-2-12.2 concerning bond release 
requirements. There is no specific Federal counterpart to CSR 38-2-
7.7.a. However, we find that this provision is not inconsistent

[[Page 6580]]

with the Federal regulations at 30 CFR 780.23 concerning reclamation 
plans and postmining land use information and can be approved.
    b. 7.7.b. Planting Plan. Subdivision 7.7.b. contains requirements 
concerning the development, contents, and review of the planting plan. 
Subsection 7.7.b. contains the following requirements:

    7.7.b. Planting Plan.
    7.7.b.1. A wildlife biologist employed by the West Virginia 
Division of Natural Resources shall develop a planting plan for the 
permitted area that meets the requirements of the West Virginia 
Surface Coal Mining and Reclamation Act. This plan shall be made a 
part of the mining permit application. The plans shall be in 
sufficient detail to demonstrate that the requirements of wildlife 
use can be met. The minimum contents of the plan shall be as 
follows:
    7.7.b.1.A.1. Surface preparation plan that includes a 
description of the methods for replacing and grading the soil and 
other soil substitutes and their preparation for seeding and 
planting.
    7.7.b.1.A.2. Liming and fertilizer plans.
    7.7.b.1.A.3. Mulching type, rates and procedures.
    7.7.b.1.A.4. Species seeding rates and procedures for 
application of perennial and annual herbaceous, shrub and vine plant 
materials for ground cover.
    7.7.b.1.A.5. A site specific tree/shrub planting prescription to 
establish wildlife to include species, stems per acre and planting 
mixes.

    We note that proposed CSR 38-2-7.7.b.1 requires the development of 
each proposed planting plan by a wildlife biologist employed by West 
Virginia Division of Natural Resources and made a part of the permit 
application prior to approval by the Secretary of the WVDEP. The 
Federal regulations at 30 CFR 816.116(b)(3)(i) provide that minimum 
stocking and planting arrangements may be approved by the regulatory 
authority, after consultation with and approval by the State agencies 
responsible for the administration of forestry and wildlife programs. 
Consultation and approval may occur on either a program wide or a 
permit-specific basis. Under CSR 38-2-7.7.b.1, the approval of stocking 
and planting arrangements will be on a permit-specific basis. An MOU 
currently exists between the Division of Forestry and the WVDEP (see 
Finding 2.b above). In addition, a Memorandum of Agreement (MOA) dated 
September 16, 2003, currently exists between the Division of Natural 
Resources and the WVDEP (Administrative Record Number WV-1405). It is 
our understanding that the required consultation with the State 
agencies responsible for the administration of forestry and planting 
arrangements will continue to occur under these agreements.
    There are no specific Federal counterparts to the remaining 
proposed provisions at subsection 7.7.b concerning planting plan. 
Nevertheless, we find that the proposed provisions at CSR 38-2-7.7.b. 
are not inconsistent with the Federal requirements at 30 CFR 
780.18(b)(5) concerning revegetation plan and can be approved. However, 
our approval of CSR 38-2-7.7.b is based upon the understanding that the 
MOU between the Division of Forestry and the WVDEP and the MOA between 
the Division of Natural Resources and the WVDEP will continue to be in 
force.
    c. Soil Placement, Substitute Material and Grading. This new 
provision provides as follows:

    7.7.c. Soil placement, Substitute material and Grading.
    7.7.c.1. Except for valley fill faces, soil or soil substitutes 
shall be redistributed in a uniform thickness of at least four feet 
across the mine area.
    7.7.c.2. The use of topsoil substitutes may be approved by the 
Secretary providing the applicant demonstrates: the volume of 
topsoil on the permit area is insufficient to meet the depth 
requirements of 7.6.c.1 [7.7.c.1], the substitute material consists 
of at least 75% sandstone, has a composite paste pH between 5.0 and 
7.5, has a soluble salt level of less than 1.0 mmhos/cm. and is in 
accordance with 14.3.c. The Secretary may allow substitute materials 
with less than 75% sandstone provided the applicant demonstrates the 
overburden in the mine area does not contain an adequate volume of 
sandstone to meet the depth requirements of 7.6.c.1, or the quality 
of sandstone in the overburden does not meet the requirements of 
this rule. Such information shall be made a part of the permit 
application.
    7.7.c.3. Soil shall be placed in a loose and non-compacted 
manner while achieving a static safety factor of 1.3 or greater. 
Grading and tracking shall be minimized to reduce compaction. Final 
grading and tracking shall be prohibited on all areas that are equal 
to or less than a 30 percent slope. Organic debris such as forest 
litter, tree tops, roots, and root balls may be left on and in the 
soil.
    7.7.c.4. The permittee may regrade and reseed only those rills 
and gullies that are unstable and/or disrupt the approved postmining 
land use or the establishment of vegetative cover or cause or 
contribute to a violation of water quality standards for the 
receiving stream.

    We find that proposed 7.7.c.1, which requires at least four feet of 
soil or soil substitutes to be redistributed in a uniform thickness, is 
consistent with and no less effective than the Federal regulations 
concerning redistribution of topsoil at 30 CFR 816.22(d) and can be 
approved. As we noted above in Finding 3.a., in addition to complying 
with the provisions of CSR 38-2-7.7, the applicant must also comply 
with the other provisions of the approved State program. Therefore, our 
approval of proposed 7.7.c.1 is based upon the understanding that the 
State's topsoil rules at CSR 38-2-14.3(a) and (b) regarding removal and 
redistribution will continue to apply in these situations.
    Proposed 7.7.c.2, concerning the demonstrations needed for the 
approval of topsoil substitutes, is consistent with and no less 
effective than 30 CFR 816.22(b) concerning soil substitutes and 
supplements and can be approved. We note that proposed 7.7.c.2 
specifically requires compliance with the topsoil substitute 
requirements at CSR 38-2-14.3.c., which requires a demonstration of the 
suitability of the substitutes for the approved postmining land use. We 
also note an apparent typographical error in proposed 7.7.c.2. The 
reference to the depth requirements of ``7.6.c.1'' should be to 
``7.7.c.1.'' However, because CSR 38-2-7.6.c.1 and CSR 38-2-7.7.c.1 are 
substantively identical, the typographical error has no meaningful 
effect. Nevertheless, we recommend that the State correct it in the 
future.
    We find that proposed 7.7.c.3., which requires non-compaction of 
the replaced soil, is consistent with and no less effective than the 
Federal regulations at 30 CFR 816.22(d), concerning redistribution of 
soil and can be approved. The regulations at 30 CFR 816.22(d) require 
redistribution of soil in a manner which, at (i), is consistent with 
the approved postmining land use, and, at (ii), prevents excess 
compaction of the materials.
    The proposed requirement for a static safety factor of 1.3 at 
7.7.c.3 is consistent with and no less effective than the Federal 
regulations at 30 CFR 816.102(a)(3), which require the backfill to 
achieve a long-term slope stability factor of 1.3 and to prevent 
slides. The proposed authorization to allow organic debris to be left 
on the surface and in the soil is not inconsistent with the Federal 
regulations, so long as the placement of organic material is limited to 
the topsoil, or topsoil substitute, and this practice does not affect 
stability in accordance with the Federal regulations at 30 CFR 
816.71(e)(1) and 816.102(a)(3). The emphasis of the State provisions 
toward minimizing compaction and inoculating the soil with organic 
materials is consistent with the needs of forestry and tree growth, and 
with the Federal soil redistribution requirements at 30 CFR 816.22(d). 
In addition, the proposed rule prohibits final grading and tracking on 
slopes of less than 30 percent or about 17 degrees. We note that the 
grading limitation on slopes of less than 30 percent at proposed 
7.7.c.3 is restricted to ``final''

[[Page 6581]]

grading or tracking, and initial or subsequent grading will not be 
prohibited on any slopes, regardless of steepness. Furthermore, it is 
our understanding that if some areas with less than 30 percent slope 
require final grading or tracking to ensure stability, minimize 
erosion, or to prevent slippage, the proposed rule would not preclude 
an operator from undertaking such activities and other normal husbandry 
practices as provided by CSR 38-2-11.7 and 14.15.a.1 and the Federal 
regulations at 30 CFR 816.102(a)(3) and 816.116(c)(4). Our approval of 
these provisions is based upon that understanding.
    Proposed 7.7.c.4 provides for the repair of rills and gullies that 
are unstable and/or disrupt the postmining land use or vegetative cover 
or cause or contribute to a violation of water quality standards. The 
Federal regulations at 30 CFR 816.95(b) require that rills and gullies 
that either (1) disrupt the postmining land use or the reestablishment 
of the vegetative cover or (2) cause or contribute to the violation of 
water quality standards must be filled, regraded, or otherwise 
stabilized. We understand the amended State provision concerning repair 
of rills and gullies to mean that a permittee is generally not 
authorized to repair rills and gullies, except those rills and gullies 
that are unstable and/or disrupt the approved postmining land use, the 
establishment of vegetative cover, or cause or contribute to a 
violation of water quality standards for the receiving stream. This 
provision is intended to eliminate the compaction of soils and the 
destruction of established vegetative cover that would normally take 
place during routine repair of rills and gullies. Such compaction can 
have a detrimental effect on tree growth. Therefore, we find the 
limitation on the repair of rills and gullies is intended to protect 
tree seedlings and other vegetative growth and help assure the success 
of the forestry components of the wildlife postmining land use.
    CSR 38-2-7.7.c.4 does not explicitly require the repair of rills 
and gullies that disrupt the approved postmining land use, the 
establishment of vegetative cover, or cause or contribute to a 
violation of water quality standards for the receiving stream. However, 
the proposed provision in no way prohibits the repair of such rills and 
gullies. Moreover, the approved State program already requires 
restoration of the premining land use, or establishment of an approved 
alternative postmining land use after mining, (CSR 38-2-7.1.a. and 7.3, 
respectively), the establishment of vegetative cover (CSR 38-2-
7.7.e.1), and compliance with applicable water quality standards (CSR 
38-2-14.5.b). It necessarily follows from these provisions that rills 
and gullies that could prevent compliance with the above requirements 
must be filled, regraded, or otherwise stabilized. For this reason, we 
find that the proposed amendment at CSR 38-2-7.7.c.4, taken in concert 
with the above-referenced State regulatory requirements, does not 
render the program less effective than 30 CFR 816.95(b) and can be 
approved, so long as it is implemented in a manner consistent with that 
Federal provision and CSR 38-2-9.2.e. If, in future reviews, we should 
determine that West Virginia is implementing these provisions in a 
manner that is inconsistent with this finding, a further amendment may 
be required.
    d. 7.7.d. Liming and Fertilizing. This new provision provides as 
follows:

    7.7.d. Liming and Fertilizing.
    7.7.d.1. Lime shall be required where the average soil pH is 
less than 5.0. Lime rates will be used to achieve a uniform soil pH 
of 5.5. Soil pH may vary from 5.0 to a maximum of 7.5. An alternate 
maximum or minimum soil pH may be approved based on the optimum pH 
for the revegetation species.
    7.7.d.2. The Secretary shall require the permittee to fertilize 
based upon the needs of trees and establishment of ground cover to 
control surface soil erosion. A minimum of 300 lbs./acre of 10-20-10 
fertilizer shall be applied with the ground cover seeding. Other 
fertilizer materials and rates may be used only if the Secretary 
finds that the substitutions are appropriate based on soil testing 
performed by State certified laboratories.

    There are no direct Federal counterparts to the specific liming and 
fertilizing rates proposed by West Virginia. We find, however, that the 
proposed amendments do not render the West Virginia program less 
effective than the Federal requirements at 30 CFR 779.21 concerning 
soil resources information, 30 CFR 780.18 concerning reclamation plan 
general requirements, and 30 CFR 816.22 concerning topsoil and subsoil 
and can be approved.
    e. 7.7.e. Revegetation. This new provision provides as follows:

    7.7.e. Revegetation.
    7.7.e.1. Temporary erosion control vegetative cover shall be 
established as contemporaneously as practical with backfilling and 
grading until a permanent tree cover can be established. This cover 
shall consist of a combination of native and domesticated non-
competitive and non-invasive cool and warm species grasses and other 
herbaceous vine or shrub species including legume species and 
shrubs. All species shall be slow growing and compatible with tree 
establishment and growth. The ground vegetation shall be capable of 
stabilizing the soil from excessive erosion, but the species should 
be slow growing and non-invasive to allow the establishment and 
growth of native herbaceous plants and trees. Seeding rates and 
composition must be in the planting plan. The following ground cover 
mix and seeding rates (lb./acre) are strongly recommended: winter 
wheat (20 lbs./acre), fall seeding, foxtail millet (10 lbs./acre), 
summer seeding, weeping lovegrass (3 lbs./acre or redtop at 5 lbs./
acre), kobe lespedeza (5 lbs./acre), birdsfoot trefoil (15 lbs.,/
acre), perennial rye grass (10 lbs.,/acre) and white clover (4 lbs./
acre). Kentucky 31 fescue, serecia lespedeza, all vetches, clovers 
(except ladino and white clover) and other aggressive or invasive 
species shall not be used. Alternate seeding rates and composition 
will be considered on a case by case basis by the Secretary and may 
be approved if site specific conditions necessitate a deviation from 
the above. Areas designated, as openings shall contain only grasses 
in accordance with the approved planting plan specified under 
subsection 7.7.b. of this rule.
    7.7.e.2. The selection of trees and shrubs species shall be 
based [on] each species' site requirements (soil type, degree of 
compaction, ground cover, competition, topographic position and 
aspect) and in accordance with the approved planting plan specified 
in under subsection 7.7.b. of this rule. The stocking density of 
woody plants shall be at least 500 plants per acre. Provided, that 
where a wildlife planting plan has been approved by a professional 
wildlife biologist and proposes a stocking rate of less than four 
hundred fifty (450) trees or shrubs per acre the standard for 
grasses and legumes shall meet those standards contained in 
subdivision 9.3.f of this rule. In all instances, there shall be a 
minimum of four species of tree or shrub, to include at least two 
hard mast producing species.

    There are no direct Federal counterpart regulations concerning the 
specific provisions of CSR 38-2-7.7.e.1 concerning mixes and seeding 
rates of temporary erosion control vegetative cover. In addition to 
being compatible with plant and animal species of the region, it is our 
understanding that the mixes, shrubs, tree seedlings and any 
alternatives will, as provided by subsections 9.2.a, b, c and h and 30 
CFR 816.111(a) and (b), be compatible with the approved postmining land 
use, have the same seasonal characteristics of growth as the original 
vegetation, be capable of self regeneration and plant succession, and 
meet State and Federal seed, poisonous, and noxious plant and 
introduced species requirements. Our finding that the proposed State 
provisions are not inconsistent with the Federal requirements 
concerning revegetation at 30 CFR 816.111 and 816.116 is based upon 
that understanding and can be approved, except as noted below.
    The proposed provision at CSR 38-2-7.7.e.1 provides that the 
``ground vegetation shall be capable of stabilizing the soil from 
excessive erosion.'' That

[[Page 6582]]

provision is less effective than the Federal regulations at 30 CFR 816/
817.111(a)(4), which provides that the permittee shall establish a 
vegetative cover that is ``[c]apable of stabilizing the soil surface 
from erosion.'' As proposed, CSR 38-2-7.7.e.1 is less effective than 30 
CFR 816/817.111(a)(4) because the proposed standard to stabilize the 
soil is modified by the word ``excessive.'' Therefore, we are not 
approving the word ``excessive'' in the phrase ``capable of stabilizing 
the soil from excessive erosion'' at CSR 38-2-7.7.e.1.
    We find that the requirements concerning the selection of tree and 
shrub species at CSR 38-2-7.7.e.2 are consistent with the Federal 
requirements concerning revegetation, general requirements at 30 CFR 
816.111 and can be approved, except as noted below. There is an 
apparent typographical error where the proposed provision requires 
compliance with 9.3.f when the proposed planting plan proposes a 
stocking rate of less than 450 trees or shrubs per acre. Given that the 
proposed requirements promote wildlife habitat and tree growth, the 
proposed citation should be to 9.3.g which provides revegetation 
standards for forestland and wildlife use. The citation to 9.3.f 
concerns revegetation success standards for grazingland, hayland and 
pastureland and, therefore, may not be appropriate for ``wildlife'' 
postmining land use. We find that the proposed stocking density of 450 
woody plants at CSR 38-2-7.7.e.2 is consistent with and no less 
effective than the Federal requirements concerning revegetation 
standards for success at 30 CFR 816.116(b)(3) and can be approved. We 
are making this finding with the understanding that the citation of 
9.3.f will be corrected to 9.3.g. Furthermore, any reduction in tree 
stocking rates beyond those set forth in 9.3.g and 9.3.h when the 
postmining land use includes forest land will require the approval of 
the Division of Forestry on a case-by-case basis.
    As we noted above in Section II, the proposed rules differ from the 
final rules that are on file with the Secretary of State in some 
respects. The last sentence in proposed 7.7.e.2 provides, ``In all 
instances, there shall be a minimum of four species of tree or shrub, 
to include at least two hard mast producing species.'' The rules on 
file with the Secretary of State do not include the word ``two'' before 
hard mast producing species. We believe that this omission is most 
likely a typographical error, and that the State intends to require a 
minimum of two hard mast producing species. Nevertheless, because it 
constitutes a difference that would not further the objectives of the 
proposed rule, we recommend that this omission be corrected in the near 
future.
    f. 7.7.f. Standards for Success. This new provision provides as 
follows:

    7.7.f. Standards for Success.
    7.7.f.1. The success of vegetation shall be determined on the 
basis of tree and shrub survival and ground cover.
    7.7.f.2. Minimum success standard shall be tree survival 
(including volunteer tree species) and/or planted shrubs per acre 
equal to or greater than four hundred and fifty (450) trees per acre 
and a seventy percent (70%) ground cover where ground cover includes 
tree canopy, shrub and herbaceous cover, and organic litter during 
the growing season of the last year of the responsibility period;. 
Provided, that where a wildlife planting plan has been approved by a 
professional wildlife biologist and proposes a stocking rate of less 
than four hundred fifty (450) trees or shrubs per acre the standard 
for grasses and legumes shall meet those standards contained in 
subdivision 9.3.f of this rule.
    7.7.f.3. At the time of final bond release, at least eighty (80) 
percent of all trees and shrubs used to determine such success must 
have been in place for at least sixty (60) percent of the applicable 
minimum period of responsibility. Trees and shrubs counted in 
determining such success shall be healthy and shall have been in 
place for not less than two (2) growing seasons.

    We find that the proposed success standards for revegetation at CSR 
38-2-7.7.f. are consistent with and no less effective than the Federal 
standards for revegetation success of lands to be developed for fish 
and wildlife habitat, recreation, shelter belts, or forest products at 
30 CFR 816.116(b)(3) and can be approved. We note that there is an 
apparent typographical error in the provision at CSR 38-2-7.7.f.2. CSR 
38-2-7.7.f.1 provides that the success of vegetation shall be 
determined on the basis of tree and shrub survival and ground cover. 
The proposed provision at CSR 38-2-7.7.f.2 lacks a reference to 
``shrubs'' after the standard of ``450 trees per acre.'' The standard 
should be ``450 trees/shrubs per acre with a 70 percent ground cover.'' 
It is our understanding that CSR 38-2-7.7.f. applies to trees and 
shrubs, and therefore, the ``450'' standard applies to both trees and 
shrubs. Our finding that CSR 38-2-7.7.f is consistent with and no less 
effective than the Federal standards at 30 CFR 816.116(b)(3) and can be 
approved is based upon that understanding.

4. CSR 38-2-9.3.g Revegetation Standards for Areas To Be Developed for 
Forest Land and/or Wildlife Use

    This provision is amended by adding a sentence in the second 
paragraph that provides as follows:

    A professional wildlife biologist employed by the West Virginia 
Division of Natural Resources shall develop a planting plan that 
meets the requirements of the West Virginia Surface Coal Mining and 
Reclamation Act.

    We find that the new language is consistent with and no less 
effective than the Federal regulations at 30 CFR 816.116(b)(3)(i), 
concerning standards for revegetation success of wildlife habitat, and 
can be approved. The Federal provision at 30 CFR 816.116(b)(3)(i) 
provides that minimum stocking and planting arrangements shall be 
specified by the regulatory authority after consultation with and 
approval by the State agencies responsible for the administration of 
forestry and wildlife programs.
    As discussed in Finding 2.b, an MOU currently exists between the 
Division of Forestry and the WVDEP. In addition, as discussed in 
Finding 3.b, an MOA currently exists between the Division of Natural 
Resources and WVDEP. Because the tree and shrub stocking and planting 
arrangement requirements at CSR 38-2-7.6.f.2, 7.7.f.2, and 9.3.g are 
identical (450 trees/shrubs) as is the ground cover standard (70 
percent), it is our understanding that both agreements could apply in 
all three cases and would require a planting plan to be developed by a 
wildlife biologist employed by the Division of Natural Resources when 
wildlife use is to be the postmining land use. However, we should note 
that both agreements may need to be updated to provide for future 
coordination in the approval of planting plans involving forest land 
and/or wildlife habitat.
    We note that the amendment to this paragraph satisfies an item in a 
30 CFR part 732 notification dated March 6, 1990, that we had 
previously sent the State (Administrative Record Number WV-834). The 
Federal regulations at 30 CFR 732.17(d) provide that OSM must notify 
the State of all changes in SMCRA and the Federal regulations that will 
require an amendment to the State program. Such letters sent by us are 
often referred to as ``732 letters or notifications.'' The issue that 
is satisfied requires minimum stocking and planting arrangements to be 
specified by the regulatory authority after consultation with and 
approval by the State agencies responsible for the administration of 
forestry and wildlife programs. With this action, all issues in our 
March 6, 1990, part 732 notification have been satisfied.

5. CSR 38-2-14.15.a.1. Contemporaneous Reclamation Standards; General

    The first sentence of this paragraph is amended by deleting the 
partial citation

[[Page 6583]]

``(c)(2),'' and adding the words ``and this rule'' immediately 
following the amended citation. As amended, the sentence provides as 
follows:

    14.15.a.1. Spoil returned to the mined-out area shall be 
backfilled and graded to the approximate original contour unless a 
waiver is granted pursuant to W. Va. Code 22-3-13 and this rule with 
all highwalls eliminated.

    The proposed rule provides for an AOC waiver pursuant to WV Code 
22-3-13 and this rule (CSR 38-2). The revision clarifies when an AOC 
variance can be granted. In addition to the mountaintop removal AOC 
variance provision at WV Code 22-3-13(c)(2), there is the steep slope 
AOC variance provision at WV Code 22-2-13(e), and the AOC variance 
provisions for thin or thick overburden at WV Code 22-3-13(b). We find 
that the proposed revision, which includes a citation to all AOC