West Virginia Regulatory Program, 10764-10790 [06-1901]

Agencies

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

[Federal Register Volume 71, Number 41 (Thursday, March 2, 2006)]
[Rules and Regulations]
[Pages 10764-10790]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 06-1901]



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Part II





Department of the Interior





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Office of Surface Mining Reclamation and Enforcement



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30 CFR Parts 948



West Virginia Regulatory Program; Final Rule

Federal Register / Vol. 71, No. 41 / Thursday, March 2, 2006 / Rules 
and Regulations

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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 948

[WV-106-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, an 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 amended the Code of West Virginia (W. Va. Code or WV 
Code) and the Code of State Regulations (CSR) as authorized by several 
bills passed during the State's regular 2004-2005 legislative session. 
The State revised its program to be consistent with certain 
corresponding Federal requirements, and to include other amendments at 
its own initiative.

DATES: Effective Date: March 2, 2006.

FOR FURTHER INFORMATION CONTACT: Mr. Roger W. Calhoun, Director, 
Charleston Field Office, 1027 Virginia Street East, Charleston, West 
Virginia 25301. Telephone: (304) 347-7158, e-mail 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

    West Virginia proposed revisions to the Code of West Virginia (W. 
Va. Code or WV Code) and the Code of State Regulations (CSR) as 
authorized by several bills passed during the State's regular 2004-2005 
legislative session. West Virginia also proposed an amendment that 
relates to the State's regulations concerning erosion protection zones 
(EPZ) associated with durable rock fills. 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, changes to the State's surface mining and 
blasting regulations as authorized by Committee Substitute for House 
Bill 2723; various statutory changes to the State's approved program as 
a result of the passage of Committee Substitute for House Bill 3033 and 
House Bills 2333 and 3236; the submission of a draft policy regarding 
the State's EPZ requirement and requesting that OSM reconsider its 
previous decision concerning EPZ; State water rights and replacement 
policy identifying the timing of water supply replacement; the revised 
Permittee's Request For Release form; the submission of a Memorandum of 
Agreement (MOA) between the West Virginia Department of Environmental 
Protection (WVDEP), Division of Mining and Reclamation, and the West 
Virginia Division of Natural Resources, Wildlife Resources Section that 
is intended to partially resolve a required program amendment relating 
to planting arrangements for Homestead post-mining land use; and a 
memorandum from the West Virginia Division of Forestry to the WVDEP 
supporting the tree stocking standards for Homestead.
    By letters dated June 13, 2005 (Administrative Record Numbers WV-
1419, WV-1420, and WV-1421), the WVDEP submitted amendments to its 
program under SMCRA (30 U.S.C. 1201 et seq.). The amendments consist of 
several bills passed during West Virginia's 2004-2005 legislative 
session and a draft policy concerning EPZs associated with durable rock 
fills.
    House Bill (HB) 2333 amends the W. Va. Code by adding new Article 
27 entitled the Environmental Good Samaritan Act (Sections 22-27-1 
through 22-27-12). HB 2333 was adopted by the Legislature on March 24, 
2005, and signed into law by the Governor on April 6, 2005, with an 
effective date of June 22, 2005. In its letter, the WVDEP stated that 
HB 2333 establishes a program to encourage voluntary reclamation of 
lands adversely affected by mining activities by limiting the liability 
that could arise as a result of the voluntary reclamation of abandoned 
lands or reduction/abatement of water pollution.
    Committee Substitute for HB 2723 authorizes (at paragraph g) 
amendments to the West Virginia Surface Mining Reclamation Rules at CSR 
38-2 and (at paragraph i) amendments to the Surface Mining Blasting 
Rule at CSR 199-1. This bill was passed by the Legislature on April 8, 
2005, and approved by the Governor on May 3, 2005, with an effective 
date from the date of passage. We note that some of the amendments to 
CSR 38-2 and CSR 199-1 are intended to address required program 
amendments that are codified in the Federal regulations at 30 CFR 
948.16(a), (sss), (wwww), (fffff), (iiiii), (jjjjj), (kkkkk), (lllll), 
(ooooo), (ppppp), and (rrrrr).
    Committee Substitute for HB 3033 amends the West Virginia Surface 
Coal Mining and Reclamation Act (WVSCMRA) at W. Va. Code Section 22-3-
11 concerning the State's special reclamation tax. This bill was passed 
by the Legislature on April 1, 2005, and signed by the Governor on 
April 18, 2005, with an effective date of April 1, 2005. In its letter, 
the WVDEP stated that HB 3033 extends the temporary special reclamation 
tax that funds the State's alternative bonding system for an additional 
18 months (at WV Code 22-3-11(h)(1)) and provides additional duties for 
the WVDEP Secretary in managing the State's alternative bonding system 
(at W. Va. Code 22-3-11(h)(2), (3), and (4)). We note that OSM 
previously approved West Virginia's temporary special reclamation tax 
on December 28, 2001 (66 FR 67446), with additional modification on May 
29, 2002 (67 FR 37610, 37613-37614). The State's current extension of 
that temporary tax by an additional 18 months does not need OSM's 
specific approval because the State has only lengthened the time period 
of the temporary tax. Except as discussed below, the State has not 
modified any duties or functions under the approved West Virginia 
program, and the change is in keeping with the intent of our original 
approvals. Therefore, we did not seek public comment on the State's

[[Page 10765]]

extension of the temporary tax from thirty-nine to fifty-seven months 
at W. Va. Code 22-3-11(h)(1). The extension took effect from the date 
of passage of Committee Substitute for HB 3033, on April 1, 2005. In 
addition, we did not seek public comment on the State's new language at 
W. Va. Code 22-3-11(h)(3) and (4). These new provisions only direct the 
Secretary of the WVDEP to conduct various studies and authorize the 
Secretary of the WVDEP to propose legislative rules concerning its 
bonding program as appropriate. These provisions do not modify any 
duties or functions under the approved West Virginia program and do 
not, therefore, require OSM's approval. However, we asked for public 
comment on the State's provisions at WV Code 22-3-11(h)(2)(A) and (B). 
Under these new provisions, the WVDEP Secretary will be required to 
pursue cost effective alternative water treatment strategies, conduct 
formal actuarial studies every two years, and conduct informal reviews 
annually on the Special Reclamation Fund. Upon further consideration of 
new W. Va. Code 22-3-11(h)(2)(A) concerning the requirement to pursue 
cost effective alternative water treatment strategies, we have 
concluded that that requirement does not represent a substantive change 
to the West Virginia program. That is, new Subsection (h)(2)(A) will 
have no immediate effect on the implementation of the provisions of the 
approved West Virginia program. Additionally, in its pursuit of cost-
effective water treatment strategies, if the State does identify any 
needed regulatory revisions or additions, such changes would be pursued 
through established rulemaking procedures and subject to OSM review and 
approval. Therefore, we have determined that the amendment to CSR 38-2-
11(h)(2)(A) does not require OSM's approval and we have not made a 
finding on that provision in our findings below.
    HB 3236 amends the WVSCMRA by adding new W. Va. Code Section 22-3-
11a concerning the special reclamation tax, and adding new Section 22-
3-32a concerning the special tax on coal. HB 3236 was passed by the 
Legislature on April 9, 2005, and approved by the Governor on May 2, 
2005, with an effective date of April 9, 2005. HB 3236 provides that 
the special reclamation tax and the special tax, which is used to 
administer the State's approved regulatory program, are applicable to 
thin seam coal, and the special reclamation tax is subject to the WV 
Tax Crimes and Penalties Act and the WV Tax Procedure and 
Administration Act.
    In addition, WVDEP submitted Committee Substitute for HB 3033 which 
contains strikethroughs and underscoring showing the actual language 
that has been added and deleted from the WVSCMRA, as a result of the 
passage of Enrolled Committee Substitute for HB 3033 discussed above 
(Administrative Record Number WV-1422).
    WVDEP submitted a MOA dated September 2003 between the WVDEP, 
Division of Mining and Reclamation, and the West Virginia Division of 
Natural Resources, Wildlife Resources Section (Administrative Record 
Number WV-1405). This MOA outlines responsibilities of both agencies in 
reviewing surface and underground coal mining permit applications; 
evaluating lands unsuitable for mining petitions; developing wildlife 
planting plans as part of reclamation plans of permit applications; and 
restoring, protecting and enhancing fish and wildlife on mined lands 
within the State. The MOA was developed in response to a letter to the 
State from OSM in accordance with the Federal regulations at 30 CFR 
Part 732 and dated March 6, 1990 (Administrative Record Number WV-834). 
Such letters sent by OSM are often referred to as ``732 letters'' or 
``732 notifications.'' In the March 6, 1990, letter, OSM stated that 
the State program did not require that minimum stocking and planting 
arrangements be specified by the regulatory authority on the basis of 
local and regional conditions and after consultation with and approval 
by State agencies responsible for the administration of forestry and 
wildlife programs as required by 30 CFR 816/817.116(b)(3)(i). The West 
Virginia Division of Forestry has concurred with the State's tree 
stocking and groundcover standards at CSR 38-2-9.8.g.
    However, OSM maintains that the Wildlife Resources Section still 
has to concur with the wildlife planting arrangement standards. The 
WVDEP submitted the MOA in response to that part of the outstanding 30 
CFR Part 732 notification and, as discussed below, to satisfy part of 
an outstanding required amendment at 30 CFR 948.16(ooooo).
    The Federal regulations at 30 CFR 948.16(ooooo) provide that the 
WVDEP must consult with and obtain the approval of the West Virginia 
Division of Forestry and the Wildlife Resources Section of the West 
Virginia Division of Natural Resources on the new stocking standards 
and planting arrangements for Homesteading at CSR 38-2-7.5.o.2. The 
submission of the MOA is to resolve the part of the required amendment 
relating to planting arrangements. The State also revised its rules 
earlier at CSR 38-2-9.3.g to provide that a professional wildlife 
biologist employed by the Division of Natural Resources must develop 
the planting plan. OSM approved that revision in the Federal Register 
on February 8, 2005 (70 FR 6582). At the time of submission, WVDEP 
advised OSM that it had consulted with the Division of Forestry 
concerning the stocking standards for Homesteading. According to WVDEP, 
the Division of Forestry would be submitting a letter explaining its 
position with regard to those stocking standards (Administrative Record 
Number WV-1423). On August 23, 2005, the Division of Forestry submitted 
a memorandum to WVDEP in support of the new stocking requirements for 
Homesteading. Specifically, the Division of Forestry agreed with the 
provisions at CSR 38-2-7.5.i.8, 7.5.l.4 and 7.5.o.2 regarding 
conservation easements, public nurseries, and survival rates and ground 
cover requirements at the time of bond release (Administrative Record 
Number WV-1428). The WVDEP submitted this memorandum to help satisfy 
the required program amendment at 30 CFR 948.16(ooooo).
    WVDEP also submitted the Permittee's Request for Release form dated 
March 2005 (Administrative Record Number WV-1424). This form is being 
submitted in response to an OSM 30 CFR Part 732 notification dated July 
22, 1997 (Administrative Record Number WV-1071). In that notification, 
OSM advised the State that the Federal regulations at 30 CFR 
800.40(a)(3) were amended to require that each application for bond 
release include a written, notarized statement by the permittee 
affirming that all applicable reclamation requirements specified in the 
permit have been completed. OSM notified WVDEP that the State 
regulations at CSR 38-2-12.2 do not contain such a requirement. In 
response, the State revised its bond release form by adding new item 
Number 11, which requires that all copies of the Permittee's Request 
For Release form include the following: ``11. A notarized statement by 
the permittee that all applicable reclamation requirements specified in 
the permit have been completed.''
    We announced receipt of the proposed amendment in the August 26, 
2005, Federal Register (70 FR 50244). 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-1429). We did not hold a hearing or a 
meeting because no one requested one. The public comment

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period was to close on September 26, 2005. Prior to the close of the 
comment period, we received a request from the West Virginia Coal 
Association (WVCA) to extend the comment period for an additional five 
days (Administrative Record Number WV-1437). On September 26, 2005, we 
granted their request and extended the comment period through September 
30, 2005 (Administrative Record Number WV-1437). We received comments 
from one industry group and four Federal agencies.

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, minor 
wording, editorial, or renumbering of sections changes, and are 
approved herein without discussion.

1. House Bill 2333

    HB 2333 amends the W. Va. Code by adding a new article Sections 22-
27-1 through 12 to provide as follows:

Article 27. Environmental Good Samaritan Act

22-27-1. Declaration of Policy and Purpose

    This article is intended to encourage the improvement of land 
and water adversely affected by mining, to aid in the protection of 
wildlife, to decrease soil erosion, to aid in the prevention and 
abatement of the pollution of rivers and streams, to protect and 
improve the environmental values of the citizens of this state and 
to eliminate or abate hazards to health and safety. It is the intent 
of the Legislature to encourage voluntary reclamation of lands 
adversely affected by mining. The purpose of this article is to 
improve water quality and to control and eliminate water pollution 
resulting from mining extraction or exploration by limiting the 
liability which could arise as a result of the voluntary reclamation 
of abandoned lands or the reduction and abatement of water 
pollution. This article is not intended to limit the liability of a 
person who by law is or may become responsible to reclaim the land 
or address the water pollution or anyone who by contract, order or 
otherwise is required to or agrees to perform the reclamation or 
abate the water pollution.

22-27-2. Legislative Findings

    The Legislature finds and declares as follows:
    (1) The state's long history of mining has left some lands and 
waters unreclaimed and polluted.
    (2) These abandoned lands and polluted waters are unproductive, 
diminish the tax base and are serious impediments to the economic 
welfare and growth of this state.
    (3) The unreclaimed lands and polluted waters present a danger 
to the health, safety and welfare of the people and the environment.
    (4) The state of West Virginia does not possess sufficient 
resources to reclaim all the abandoned lands and to abate the water 
pollution.
    (5) Numerous landowners, citizens, watershed associations, 
environmental organizations and governmental entities who do not 
have a legal responsibility to reclaim the abandoned lands or to 
abate the water pollution are interested in addressing these 
problems but are reluctant to engage in such reclamation and 
abatement activities because of potential liabilities associated 
with the reclamation and abatement activities.
    (6) It is in the best interest of the health, safety and welfare 
of the people of this state and the environment to encourage 
reclamation of the abandoned lands and abatement of water pollution.
    (7) That this act will encourage and promote the reclamation of 
these properties.

22-27-3. Definitions

    As used in this article unless used in a context that clearly 
requires a different meaning, the term:
    (a) ``Abandoned lands'' means land adversely affected by mineral 
extraction and left or abandoned in an unreclaimed or inadequately 
reclaimed condition.
    (b) ``Consideration'' means something of value promised, given 
or performed in exchange for something which has the effect of 
making a legally enforceable contract. For the purpose of this 
article, the term does not include a promise to a landowner to 
repair damage caused by a reclamation project or water pollution 
abatement project when the promise is made in exchange for access to 
the land.
    (c) ``Department'' means the West Virginia Department of 
Environmental Protection.
    (d) ``Eligible land'' means land adversely affected by mineral 
extraction and left or abandoned in an unreclaimed or inadequately 
reclaimed condition or causing water pollution and for which no 
person has a continuing reclamation or water pollution abatement 
obligation.
    (e) ``Eligible landowner'' means a landowner that provides 
access to or use of the project work area at no cost for a 
reclamation or water pollution abatement project who is not or will 
not become responsible under state or federal law to reclaim the 
land or address the water pollution existing or emanating from the 
land.
    (f) ``Eligible project sponsor'' means a person that provides 
equipment, materials or services at no cost or at cost for a 
reclamation or water pollution abatement project who is not or will 
not become responsible under state or federal law to reclaim the 
land or address the water pollution existing or emanating from the 
land.
    (g) ``Landowner'' means a person who holds either legal or 
equitable interest in real property.
    (h) ``Mineral'' means any aggregate or mass of mineral matter, 
whether or not coherent, which is extracted by mining. This 
includes, but is not limited to, limestone, dolomite, sand, gravel, 
slate, argillite, diabase, gneiss, micaceous sandstone known as 
bluestone, rock, stone, earth, fill, slag, iron ore, zinc ore, 
vermiculite, clay and anthracite and bituminous coal.
    (i) ``Permitted activity site'' means a site permitted by the 
department of environmental protection under the provisions of 
article two, three or four of this chapter.
    (j) ``Person'' means a natural person, partnership, association, 
association members, corporation, an agency, instrumentality or 
entity of federal or state government or other legal entity 
recognized by law as the subject of rights and liabilities.
    (k) ``Project work area'' means that land necessary for a person 
to complete a reclamation project or a water pollution abatement 
project.
    (l) ``Reclamation project'' means the restoration of eligible 
land to productive use by regrading and revegetating the land to 
stable contours that blend in and complement the drainage pattern of 
the surrounding terrain with no highwalls, spoil piles or 
depressions to accumulate water, or to decrease or eliminate 
discharge of water pollution.
    (m) ``Water pollution'' means the man-made or man-induced 
alteration of the chemical, physical, biological and radiological 
integrity of water located in the state.
    (n) ``Water pollution abatement facilities'' means the methods 
for treatment or abatement of water pollution located on eligible 
lands. These methods include, but are not limited to, a structure, 
system, practice, technique or method constructed, installed or 
followed to reduce, treat or abate water pollution.
    (o) ``Water pollution abatement project'' means a plan for 
treatment or abatement of water pollution located on eligible lands.

22-27-4. Eligibility and Project Inventory

    (a) General rule.--An eligible landowner or eligible project 
sponsor who voluntarily provides equipment, materials or services at 
no charge or at cost for a reclamation project or a water pollution 
abatement project in accordance with the provisions of this article 
is immune from civil liability and may raise the protections 
afforded by the provisions of this article in any subsequent legal 
proceeding which is brought to enforce environmental laws or 
otherwise impose liability. An eligible landowner or eligible 
project sponsor is only entitled to the protections and immunities 
provided by this article after meeting all eligibility requirements 
and compliance with a detailed written plan of the proposed 
reclamation project or water pollution abatement project which is 
submitted to and approved by the department. The project plan shall 
include the objective of the project and a description of the work 
to be performed to accomplish the objective and shall, additionally, 
identify the project location, project boundaries, project 
participants and all landowners.
    (b) Notice.--The department shall give written notice by 
certified mail to adjacent property owners and riparian land owners

[[Page 10767]]

located downstream of the proposed project, provide Class IV public 
notice of the proposed project in a newspaper of general 
circulation, published in the locality of the proposed project, and 
shall give public notice in the state register. The project sponsor 
may also provide public notice. Any person having an interest which 
may be adversely affected by the proposed project has the right to 
file written objections to the department within thirty days after 
receipt of the written notice or within thirty days after the last 
publication of the Class IV notice. The department shall provide to 
the project sponsor a copy of each written objection received during 
the public comment period, which shall conclude at the expiration of 
the applicable thirty-day period provided for in this section.
    (c) Advice.--The department may provide advice to the landowner 
or to other interested persons based upon the department's knowledge 
and experience in performing reclamation projects and water 
pollution abatement projects.
    (d) Departmental review.--The department shall review each 
proposed reclamation project and approve the project if the 
department determines the proposed project:
    (1) Will result in the appropriate reclamation and regrading of 
the land according to all applicable laws and regulations;
    (2) Will result in the appropriate revegetation of the site;
    (3) Is not likely to result in pollution as defined in article 
eleven of this chapter; and
    (4) Is likely to improve the water quality and is not likely to 
make the water pollution worse.
    (e) Project inventory.--The department shall develop and 
maintain a system to inventory and record each project, the project 
location and boundaries, each landowner and each person identified 
in a project plan provided to the department. The inventory shall 
include the results of the department's review of the proposed 
project and, where applicable, include the department's findings 
under subsection (b), section ten of this article.
    (f) Appeal.--A person aggrieved by a department decision to 
approve or disapprove a reclamation project or a water pollution 
abatement project has the right to file an appeal with the 
environmental quality board under the provisions of article one, 
chapter twenty-two-b of this code.

22-27-5. Landowner Liability Limitation and Exceptions

    (a) General rule.--Except as specifically provided in 
subsections (b) and (c) of this section, an eligible landowner who 
provides access to the land, without charge or other consideration, 
which results in the implementation of a reclamation project or a 
water pollution abatement project:
    (1) Is immune from liability for any injury or damage suffered 
by persons working under the direct supervision of the project 
sponsor while such persons are within the project work area;
    (2) Is immune from liability for any injury to or damage 
suffered by a third party which arises out of or occurs as a result 
of an act or omission of the project sponsor which occurs during the 
implementation of the reclamation project or the water pollution 
abatement project;
    (3) Is immune from liability for any injury to or damage 
suffered by a third party which arises out of or occurs as a result 
of a reclamation project or a water pollution abatement project;
    (4) Is immune from liability for any pollution resulting from a 
reclamation project or water pollution abatement project;
    (5) Is immune from liability for the operation, maintenance or 
repair of the water pollution abatement facilities constructed or 
installed during the project unless the eligible landowner 
negligently damages or destroys the water pollution abatement 
facilities or denies access to the project sponsor who is 
responsible for the operation, maintenance or repair [sic] the water 
pollution abatement facilities.
    (b) Duty to warn.--The eligible landowner shall warn the project 
sponsor of known, latent, dangerous conditions located on the 
project work area which are not the subject of the reclamation 
project or the water pollution abatement project. Nothing in this 
article shall limit an eligible landowner's liability which results 
from the eligible landowner's failure to warn of such known, latent, 
dangerous conditions.
    (c) Exceptions to immunity.--Nothing in this article may limit 
an eligible landowner's liability which results from a reclamation 
project or water pollution abatement project and which would 
otherwise exist:
    (1) For injury or damage resulting from the landowner's acts or 
omissions which are reckless or constitute gross negligence or 
willful misconduct.
    (2) Where the landowner accepts or requires consideration for 
allowing access to the land for the purpose of implementing a 
reclamation project or water pollution abatement project or to 
operate, maintain or repair water pollution abatement facilities 
constructed or installed during a water pollution abatement project.
    (3) For the landowner's unlawful activities.
    (4) For damage to adjacent landowners or downstream riparian 
landowners which results from a reclamation project or water 
pollution abatement project where written notice or public notice of 
the proposed project was not provided.

22-27-6. Project Sponsor Liability Limitation and Exceptions

    (a) General rule.--Except as specifically provided in subsection 
(b) of this section, a project sponsor who provides equipment, 
materials or services at no cost or at cost for a reclamation 
project or a water pollution abatement project:
    (1) Is immune from liability for any injury to or damage 
suffered by a person which arises out of or occurs as a result of 
the water pollution abatement facilities constructed or installed 
during the water pollution abatement project;
    (2) Is immune from liability for any pollution emanating from 
the water pollution abatement facilities constructed or installed 
during the water pollution abatement project unless the person 
affects an area that is hydrologically connected to the water 
pollution abatement project work area and causes increased pollution 
by activities which are unrelated to the implementation of a water 
pollution abatement project. Provided that the project sponsor 
implements, operates, and maintains the project in accordance with 
the plans approved by the department;
    (3) Is immune from liability for the operation, maintenance and 
repair of the water pollution abatement facilities constructed or 
installed during the water pollution abatement project.
    (b) Exceptions.--
    (1) Nothing in this article shall limit in any way the liability 
of a project sponsor which liability results from the reclamation 
project or the water pollution abatement project and which would 
otherwise exist:
    (A) For injury or damage resulting from the project sponsor's 
acts or omissions which are reckless or constitute gross negligence 
or willful misconduct.
    (B) For the person's unlawful activities.
    (C) For damages to adjacent landowners or downstream riparian 
landowners which result from a reclamation project or a water 
pollution abatement project where written notice or public notice of 
the proposed project was not provided.
    (2) Nothing in this article shall limit in any way the liability 
of a person who the department has found to be in violation of any 
other provision or provisions of this chapter.

22-27-7. Permits and Zoning

    Nothing in this article may be construed as waiving any existing 
permit requirements or waiving any local zoning requirements.

22-27-8. Relationship to Federal and State Programs

    The provisions of this article shall not prevent the department 
from enforcing requirements necessary or imposed by the federal 
government as a condition to receiving or maintaining program 
authorization, delegation, primacy or federal funds.

22-27-9. General Permits

    If the department determines it will further the purposes of 
this article, the department may issue a general permit for each 
reclamation project or water pollution abatement project, which 
shall:
    (1) Encompass all of the activities included in the reclamation 
project or water pollution abatement project.
    (2) Be issued in place of any individual required stream 
encroachment, earth disturbance or national pollution discharge 
elimination system permits.

22-27-10. Exceptions

    (a) General rule.--Any person who under existing law shall be or 
may become responsible to reclaim the land or treat or abate the 
water pollution or any person who for consideration or who receives 
some other benefit through a contract or any person who through a 
consent order and agreement or [sic] is ordered to perform or 
complete reclamation or treat or abate water pollution as well as a 
surety which provided a bond

[[Page 10768]]

for the site is not eligible nor may receive the benefit of the 
protections and immunities available under this article.
    (b) Projects near mining or coal refuse sites.--This article 
does not apply to a reclamation project or a water pollution 
abatement project that is located adjacent to, hydrologically 
connected to or in close proximity to a site permitted under 
articles two, three or four of this chapter unless:
    (1) The reclamation project or water pollution abatement project 
is submitted to the department in writing before the project is 
started; and
    (2) The department finds:
    (A) The reclamation project or the water pollution abatement 
project will not adversely affect the permittee's obligations under 
the permit and the applicable law;
    (B) The activities on the project work area cannot be used by 
the permittee to avoid the permittee's reclamation or water 
pollution treatment or abatement obligations; and
    (3) The department issues a written notice of its findings and 
the approval of the project.
    (c) Projects in lieu of civil or administrative penalties.--This 
article shall not apply to a reclamation project or a water 
pollution abatement project that is performed in lieu of paying 
civil or administrative penalties.

22-27-11. Water Supply Replacement

    A public or private water supply affected by contamination or 
the diminution caused by the implementation of a reclamation project 
or the implementation of a water pollution abatement project shall 
be restored or replaced by the department with an alternate source 
of water adequate in quantity and quality for the purposes served by 
the water supply.

22-27-12. Rules

    The department may propose legislative rules in accordance with 
article three, chapter twenty-nine-a of this code as needed to 
implement the provisions of this article.

    There are no specific provisions under SMCRA relating to the 
voluntary reclamation of lands affected by mining activities. Because 
this article also relates to the voluntary treatment of water pollution 
from abandoned mined lands, we solicited comments from the U.S. 
Environmental Protection Agency (EPA). Like SMCRA, the Clean Water Act 
(CWA) does not contain comparable provisions. However, EPA recently 
launched the Good Samaritan Initiative (Administrative Record Number 
WV-1432). This is a new agency-wide effort to foster greater 
collaboration to accelerate the restoration of watersheds and fisheries 
threatened by abandoned mine runoff. EPA is pioneering the Good 
Samaritan Initiative as a tool to identify an individual's rights and 
responsibilities related to the voluntary clean up of abandoned mines 
and to protect such volunteers against pre-existing liabilities. 
Specific comments from EPA regarding the proposed State legislation are 
contained in ``Section IV. Summary and Disposition of Comments.'' While 
this legislation has no direct Federal counterpart, we do not find any 
of the proposed State provisions presented above to be inconsistent 
with the purpose and intent of SMCRA, and therefore it can be approved. 
Furthermore, as discussed in Section IV, given EPA's concern about the 
possible legal effects of the proposed State legislation on EPA's 
authority under the CWA, we find that State's Environmental Good 
Samaritan Act at W. Va. Code 22-27-1 et seq. is only approved to the 
extent that none of the provisions therein can be interpreted as 
abrogating the authority or jurisdiction of the EPA. Section 702(a) of 
SMCRA provides that nothing in the Act can be construed as superseding, 
amending, modifying, or repealing other Federal laws or any regulations 
promulgated thereunder.

2. Committee Substitute for House Bill 2723

    This bill authorizes amendments to the West Virginia Surface Mining 
Reclamation Rules at CSR 38-2 and the Surface Mining Blasting Rule at 
CSR 199-1.
Amendments to CSR 38-2
    a. CSR 38-2-2.92. This definition is new, and provides as follows:

    2.92 Previously mined areas means land affected by surface 
mining operations prior to August 3, 1977, that has not been 
reclaimed to the standards of this rule.

    In its amendment, the WVDEP stated that the revision is intended to 
resolve an outstanding 30 CFR Part 732 issue relating to previously 
mined areas as contained in a letter from OSM dated July 22, 1997 
(Administrative Record Number WV-1071). We find that the State's new 
definition of ``previously mined areas'' is substantively identical to 
the Federal definition of ``previously mined area'' at 30 CFR 701.5, 
and it can be approved.
    b. CSR 38-2-3.29.a. This provision concerns incidental boundary 
revisions (IBRs) and is amended by deleting the following language from 
the end of the first sentence: ``is the only practical alternative to 
recovery of unanticipated reserves or necessary to enhance reclamation 
efforts or environmental protection.''
    In its submittal of this amendment, the WVDEP stated that the 
amendment is intended to delete language that was not approved by OSM 
(see the February 9, 1999, Federal Register, 64 FR 6201, 6208). In the 
February 9, 1999, notice, OSM found the language to be inconsistent 
with the intent of section 511(a)(3) of SMCRA and 30 CFR 774.13(d) of 
the Federal regulations, which pertain to IBR's.
    As amended, CSR 38-2-3.29.a provides as follows:

    3.29.a. Incidental Boundary Revisions (IBRs) shall be limited to 
minor shifts or extensions of the permit boundary into non-coal 
areas or areas where any coal extraction is incidental to or of only 
secondary consideration to the intended purpose of the IBR or where 
it has been demonstrated to the satisfaction of the Secretary that 
limited coal removal on areas immediately adjacent to the existing 
permit. IBRs shall also include the deletion of bonded acreage which 
is overbonded by another valid permit and for which full liability 
is assumed in writing by the successive permittee. Incidental 
Boundary Revisions shall not be granted for any prospecting 
operations, or to abate a violation where encroachment beyond the 
permit boundary is involved, unless an equal amount of acreage 
covered under the IBR for encroachment is deleted from the permitted 
area and transferred to the encroachment area.

    We find that, with this revision, proposed CSR 38-2-3.29.a is 
consistent with and no less effective than the Federal regulations at 
30 CFR 774.13(d), and it can be approved. The proposed deletion, 
however, does leave the sentence incomplete; and we advised WVDEP that 
it should be corrected. The State acknowledged that the rest of the 
sentence should have been deleted. Therefore, we are approving this 
provision with the understanding that the State will insert a period 
after ``IBR'' and delete the words, ``or where it has been demonstrated 
to the satisfaction of the Secretary that limited coal removal on areas 
immediately adjacent to the existing permit.''
    c. CSR 38-2-5.4.a. This provision concerns general sediment control 
provisions, and it is amended by adding language to incorporate by 
reference the U.S. Department of Agriculture, Soil Conservation Service 
Technical Release No. 60, ``Earth Dams and Reservoirs.'' As amended, 
Subsection 5.4.a provides as follows:

    Sediment control or other water retention structures shall be 
constructed in appropriate locations for the purposes of controlling 
sedimentation. All runoff from the disturbed area shall pass through 
a sedimentation control system. All such systems or other water 
retaining structures used in association with the mining operation 
shall be designed, constructed, located, maintained, and used in 
accordance with this rule and in such a manner as to minimize 
adverse hydrologic impacts in the permit and adjacent areas, to 
prevent material damage outside the permit area and to assure safety 
to the public. The U.S. Department of Agriculture, Soil Conservation 
Service Technical Release No. 60 (210-VI-TR60, October 1985), 
``Earth

[[Page 10769]]

Dams and Reservoirs,'' Technical Release No. 60 (TR-60) is hereby 
incorporated by reference. Copies may be obtained from the National 
Technical Information Service (NTIS), 5285 Port Royal Road, 
Springfield, Virginia 22161, order No. PB 87-57509/AS. Copies can be 
inspected at the OSM Headquarters Office, Office of Surface Mining 
Reclamation and Enforcement, Administrative Record, 1951 
Constitution Avenue, NW., Washington, DC, or at the Office of the 
Federal Register, 800 North Capitol Street, NW., suite 700, 
Washington, DC.

    In this revision, the State added language referencing ``Earth Dams 
and Reservoirs'' Technical Release No. 60 (TR-60) (210-VI-TR60, October 
1985). This new language is consistent with the Federal citation of TR-
60 at 30 CFR 816/817.49(a)(1) and with the terms of a Part 732 letter 
that OSM sent to the State dated July 22, 1997, in accordance with the 
Federal regulations at 30 CFR 732.17(c). In that 732 letter, OSM asked 
the State to resolve issues pertaining to impoundments and criteria 
that the impoundments must comply with, especially impoundments meeting 
Class B or C criteria for dams at TR-60. We must note that due to a 
name change, the former Soil Conservation Service is now the Natural 
Resources Conservation Service (NRCS). We must also note that 
publication TR-60 has been revised, and the current version is Revised 
Amendment 1, TR-60A, dated October 1990. The WVDEP's Web page at http:/
/www.wvdep.org/item.cfm?ssid=9&ss1id=710 contains a copy of TR-60, and 
it includes the NRCS revisions that were adopted in October 1990 
(Administrative Record Number WV-1438). Therefore, because the State 
intends to require that the revised version of TR-60 be used by 
operators when designing and constructing sediment control or other 
water retention structures within the State, we find that the proposed 
amendment is consistent with and no less effective than the Federal 
regulations at 30 CFR 816/817.49(a)(1), and it can be approved.
    d. CSR 38-2-5.4.b.9. This provision concerns the design and 
construction of freeboards of sediment control structures, and is 
amended by adding a proviso that impoundments meeting the Class B or C 
criteria for dams in ``Earth Dams and Reservoirs'', TR-60 shall comply 
with the freeboard hydrograph criteria in ``Minimum Emergency Spillway 
Hydrologic Criteria'' table in TR-60. As amended, Subsection 5.4.b.9 
provides as follows:

    5.4.b.9. Provide adequate freeboard to resist overtopping by 
waves or sudden increases in volume and adequate slope protection 
against surface erosion and sudden drawdown. Provided, however, 
impoundments meeting the Class B or C criteria for dams in ``Earth 
Dams and Reservoirs'', TR-60 shall comply with the freeboard 
hydrograph criteria in ``Minimum Emergency Spillway Hydrologic 
Criteria'' table in TR-60.

    We find that, as amended, CSR 38-2-5.4.b.9 is substantively 
identical to the Federal regulations at 30 CFR 816/817.49(a)(5) 
concerning freeboard design and can be approved. The amendment also 
satisfies a portion of the 732 letter that OSM sent to the State dated 
July 22, 1997. As we discussed in Finding 2.c. above, WVDEP's Web page 
contains a copy of TR-60, and it includes the revisions that were 
adopted in October 1990. Therefore, it is apparent that the State 
intends to require that the revised version of TR-60 be used when 
designing and constructing sediment control or other water retention 
structures within the State. We note that, existing subsection CSR 38-
2-22.4.h.1, and in a separate rulemaking proposed CSR 38-4-7.1.g, 
provide that any open channel spillway designed for less than 100 
percent probable maximum precipitation (PMP) must be provided with a 
freeboard above the maximum water surface using the equation 1+.025vd1/
3. According to State officials, the equation provides for a more 
simplistic freeboard design standard where ``v'' represents flow 
velocity and ``d'' represents flow depth of the design storm in the 
channel. TR-60 requires a calculation of freeboard design by 
surcharging the design storm. Given the proposed requirements, it is 
apparent that the State requires compliance with the freeboard design 
standards at both CSR 38-2-5.4.b.9 and CSR 38-2-22.4.h.1 (and proposed 
CSR 38-4-7.1.g.). According to State officials, there is no way to 
determine which standard (freeboard hydrograph or freeboard equation) 
is more stringent. Instead, this assessment must be determined on a 
case-by-case basis during permit preparation and resulting review. 
Consequently, the higher of those standards will always apply, and the 
lesser standard will automatically be complied with. Upon approval, the 
State will consider developing an interpretive policy that may include 
variable descriptions of the freeboard equation to further clarify this 
requirement.
    e. CSR 38-2-5.4.b.10. This provision concerns minimum static safety 
factor, and has been amended by deleting language in the first sentence 
related to loss of life or property damage, and adding in its place 
language concerning impoundments meeting the Class B or C criteria for 
dams contained in ``Earth Dams and Reservoirs,'' TR-60. As amended, 
Subsection 5.4.b.10 provides as follows:

    5.4.b.10. Provide that an impoundment meeting the size or other 
criteria of 30 CFR 77.216(a) or W. Va. Code [Section] 22-14 et seq., 
or Impoundments meeting the Class B or C criteria for dams contained 
in ``Earth Dams and Reservoirs'', TR-60, shall have a minimum static 
safety factor of 1.5 for a normal pool with steady state seepage 
saturation conditions, and a seismic safety factor of at least 1.2. 
Impoundments not meeting the size or other criteria of 30 CFR 
77.216(a) or W. Va. Code [Section] 22-14 et seq., except for a coal 
mine waste impounding structure, and located where failure would not 
be expected to cause loss of life or serious property damage shall 
have a minimum static safety factor of 1.3 for a normal pool with 
steady state seepage saturation conditions.

    The Federal regulations at 30 CFR 816/817.49(a)(4)(i), concerning 
impoundment stability, provide that an impoundment meeting the Class B 
or C criteria for dams in TR-60, or the size or other criteria of 30 
CFR 77.216(a), shall have a minimum static safety factor of 1.5 for a 
normal pool with steady state seepage saturation conditions, and a 
seismic safety factor of at least 1.2. Therefore, the amendment renders 
CSR 38-2-5.4.b.10 consistent with and no less effective than the 
Federal regulations at 30 CFR 816/817.49(a)(4)(i) and can be approved. 
However, existing language at CSR 38-2-5.4.b.10 also provides that 
impoundments not meeting the size or other criteria of 30 CFR 77.216(a) 
or W. Va. Code section 22-14 et seq., except for a coal mine waste 
impounding structure, and located where failure would not be expected 
to cause loss of life or serious property damage shall have a minimum 
static safety factor of 1.3 for a normal pool with steady state seepage 
saturation conditions. That language does not appear to be consistent 
with the Federal regulations at 30 CFR 816/817.49(a)(4)(ii), which 
provides that impoundments not included in 816/817.49(a)(4)(i), except 
for a coal mine waste impounding structure, shall have a minimum static 
safety factor of 1.3 for a normal pool with steady state seepage 
saturation conditions or meet the requirements of 30 CFR 780.25(c)(3). 
The State's language does not specify which static safety factor, if 
any, applies to TR-60 Class A impoundments. The Federal regulations 
provide that Class A impoundments, which do not meet the Class B or C 
criteria for dams in TR-60, must have a minimum static safety factor of 
1.3. The State maintains that the last portion of this provision is 
applicable to impoundments not

[[Page 10770]]

meeting the Class B or C criteria in TR-60 (Administrative Record 
Number WV-1438). Because the proposed amendment clearly provides for a 
static safety factor of 1.5 for impoundments that meet the size or 
other criteria of 30 CFR 77.216(a) and impoundments meeting the Class B 
or C criteria for dams in TR-60, it is our understanding that CSR 38-2-
5.4.b.10 provides for a 1.3 minimum static safety factor for all other 
impoundments that do not meet the size or other criteria of 30 CFR 
77.216(a) or are not impoundments that meet the Class B or C criteria 
for dams in TR-60, and are not coal mine waste impounding structures. 
Therefore, we find that proposed CSR 38-2-5.4.b.10 is no less effective 
than the Federal regulations at 30 CFR 816/817.49(a)(4), and it can be 
approved. Our approval of proposed CSR 38-2-5.4.b.10 is based upon our 
understanding discussed above.
    As amended, CSR 38-2-5.4.b.10 also satisfies a portion of the July 
22, 1997, 732 letter that OSM sent to the State. As we discussed above 
in Finding 2.c, WVDEP's Web page contains a copy of TR-60, and it 
includes the revisions that were adopted in October 1990. Therefore, 
because the State intends to require that the revised version of TR-60 
be used by operators when designing and constructing sediment control 
or other water retention structures within the State, we find that the 
proposed reference to TR-60 is consistent with and no less effective 
than the Federal regulations at 30 CFR 816/817.49(a)(4)(i).
    f. CSR 38-2-5.4.b.12. This provision provides for stable 
foundations of sediment control structures, and it has been amended by 
adding language at the end of the final sentence to clarify that the 
laboratory testing of foundation material shall be to determine the 
design requirements for foundation stability. As amended, Subsection 
5.4.b.12 provides as follows:

    5.4.b.12. Provide for stable foundations during all phases of 
construction and operation and be designed based on adequate and 
accurate information on the foundation conditions. For structures 
meeting the criteria of paragraph 5.4.b.10 of this subdivision, 
provide foundation investigations and any necessary laboratory 
testing of foundation material, shall be performed to determine the 
design requirements for foundation stability.

    It is our understanding that the reference to CSR 38-2-5.4.b.10 in 
the proposed provision means that foundation investigations and any 
necessary laboratory testing of foundation materials must be performed 
for impoundments that meet the Class B or C criteria for dams at TR-60, 
the size or other criteria of the Mine Safety and Health Administration 
(MSHA) at 30 CFR 77.216(a), or the West Virginia Dam Control Act. Thus, 
foundation investigations or laboratory testing of foundation material 
for Class A dams will not be required by this subsection. We find that 
as amended, CSR 38-2-5.4.b.12 is consistent with and no less effective 
than the Federal regulations at 30 CFR 816/817.49(a)(6) concerning 
foundation testing for impoundments, and can be approved. Our approval 
of this provision is based upon our understanding discussed above.
    g. CSR 38-2-5.4.c.7. This provision is new and provides as follows:

    5.4.c.7. Impoundments meeting the Class B or C criteria for dams 
in Earth Dams and Reservoirs, TR-60 shall comply with the following: 
(1) ``Minimum Emergency Spillway Hydrologic Criteria'' table in TR-
60; (2) the emergency spillway hydrograph criteria in the ``Minimum 
Emergency Spillway Hydrologic Criteria'' table in TR-60, or larger 
event specified by the Secretary; and (3) and the requirements of 
this subdivision.

    We find that the proposed language at CSR 38-2-5.4.c.7 is 
substantively identical to and no less effective than the Federal 
regulations at 30 CFR 816/817.49(a)(1), 30 CFR 816/817.49(a)(5), and 30 
CFR 816/817.49(a)(9)(ii)(A), and it can be approved. The proposed 
amendment also satisfies a portion of the July 22, 1997, 732 letter 
that OSM sent to the State. As we discussed above in Finding 2.c, 
WVDEP's Web page contains a copy of TR-60, and it includes the 
revisions that were adopted in October 1990. Therefore, because the 
State intends to require that the revised version of TR-60 be used by 
operators when designing and constructing sediment control or other 
water retention structures within the State, we find that the proposed 
reference to TR-60 is consistent with and no less effective than the 
Federal regulations at 30 CFR 816/817.49(a)(1).
    In addition, we note that the State rules at CSR 38-2-5.4.c do not 
require design plans for structures that meet the Class B or C criteria 
for dams in TR-60 to include a stability analysis, as provided by 30 
CFR 780.25(f). The stability analysis must include, but is not limited 
to, strength parameters, pore pressures, and long-term seepage 
conditions. In addition, the design plan must contain a description of 
each engineering design assumption and calculation with a discussion of 
each alternative considered in selecting the specific design parameters 
and construction methods. CSR 38-2-5.4.c.6.D, 38-4-10 and 38-4-11.4 
require stability analyses for impoundments that meet the size or other 
criteria of MSHA or the West Virginia Dam Control Act standards. 
However, State rules at CSR 38-2-5.4.c.5 and 5.4.c.6 do not 
specifically require a stability analysis to be conducted for Class B 
or C impoundments. In addition, they do not specify what must be 
included in the stability analysis and the design plans for such 
structures. According to WVDEP (Administrative Record Number WV-1438), 
it is necessary for permit applicants to perform a stability analysis 
to demonstrate that impoundments that meet Class B or C criteria for 
dams in TR-60 are designed to have a static safety factor of 1.5 with 
steady state seepage saturation conditions and a seismic safety factor 
of 1.2. Steady state seepage analysis techniques include flow nets, 
finite element analyses, or finite difference analyses. To conduct a 
steady state seepage analysis, State officials say a set of factors is 
needed, which include strength and pore pressure. Saturated conditions 
or long-term seepage condition is just steady seepage at maximum 
storage pool. Therefore, to demonstrate that Class B or C impoundments 
are designed to have a static safety factor of 1.5 with a steady state 
seepage saturation, the permit applicant would have to provide 
information required by Subsection 5.4.c.6.D. Therefore, CSR 38-2-5.4.c 
remains approved with the understanding that stability analyses will be 
conducted for all structures that meet the Class B or C criteria for 
dams in TR-60 as required by 30 CFR 780.25(f).
    h. CSR 38-2-5.4.d.4. This provision concerns design and 
construction certification of coal refuse impoundments and embankment 
type impoundments and has been amended by adding language concerning 
impoundments meeting the Class B or C criteria for dams. As amended, 
Subsection 5.4.d.4 provides as follows:

    5.4.d.4. Design and construction certification of coal refuse 
impoundments and embankment type impoundments meeting or exceeding 
the size requirements or other criteria of Federal MSHA regulations 
at 30 CFR 77.216 (a) or impoundments meeting the Class B or C 
criteria for dams in Earth Dams and Reservoirs, TR-60 may be 
performed only by a registered professional engineer experienced in 
the design and construction of impoundments.

    The Federal regulations at 30 CFR 816/817.49(a)(3) provide that the 
design of impoundments shall be certified in accordance with 30 CFR 
780.25(a). The Federal regulations at 30 CFR 780.25(a)

[[Page 10771]]

provide that impoundments meeting the Class B or C criteria for dams in 
TR-60 shall comply with the requirements of 30 CFR 780.25 for 
structures that meet or exceed the size or other criteria of MSHA. Each 
detailed design plan for a structure that meets or exceeds the size or 
other criteria of MSHA regulations at 30 CFR 77.216(a) shall, as 
required by 30 CFR 780.25(a)(2)(i), be prepared by, or under the 
direction of, and certified by a qualified registered professional 
engineer with assistance from experts in related fields such as 
geology, land surveying, and landscape architecture.
    The West Virginia regulations at CSR 38-2-5.4.d.1, concerning 
certification, provide that prior to any surface mining activities in 
the component drainage area of a permit controlled by a sediment 
control structure, that specific structure shall be certified as to 
construction in accordance with the plans, designs, and specifications 
set forth in the preplan, or in accordance with as-built plans. The 
West Virginia regulations at CSR 38-2-5.4.d.4, as amended here, limit 
such design and construction certification to registered professional 
engineers experienced in the design and construction of impoundments 
when the designs concern MSHA impoundment regulations at 30 CFR 
77.216(a) or when the impoundments meet the Class B or C criteria at 
TR-60.
    We must note, however, that the State's requirements at Subsection 
3.6.h.5 provide that only the design plan for impoundments that meet 
the size or storage capacity of the West Virginia Dam Control Act must 
be prepared by, or under the direction of, and certified by a qualified 
registered professional engineer. The proposed rule at Subsection 
5.4.d.4 does not specifically require the design plan to be prepared by 
a registered professional engineer. The proposed rule only requires the 
design to be certified by a registered professional engineer. However, 
given that certification of the design by a registered professional 
engineer is required, we are approving Subsection 5.4.d.4 with the 
understanding that design plans for impoundments that meet the Class B 
or C criteria for dams in TR-60 and meet or exceed the size or other 
criteria of MSHA at 30 CFR 77.216(a) will be prepared by, or under the 
direction of, and certified by a registered professional engineer as 
provided by 30 CFR 780.25(a)(2).
    Furthermore, we are approving Subsection 5.4.d.3 with the 
understanding that the design plans for all other structures not 
included in Subsections 3.6.h.5 or 5.4.d.4 will be prepared by, or 
under the direction of, and certified by a registered professional 
engineer or licensed land surveyor as provided by 30 CFR 780.25(a)(3). 
In addition, as provided by 30 CFR 780.25(a)(2), the detailed design 
plan for an impoundment that meets the Class B or C criteria for dams 
in TR-60 or meets or exceeds the size or other criteria of MSHA at 30 
CFR 77.216(a) must include (1) A geotechnical investigation, (2) design 
and construction requirements for the structure, (3) an operation and 
maintenance of the structure, and (4) a timetable and plans for removal 
of the structure. Similar design plan requirements at 30 CFR 
780.25(a)(3) apply to impoundments not included in paragraph (a)(2). 
Such requirements are not specifically provided for in Subsection 5.4. 
However, similar design requirements are set forth at Subsection 3.6.h. 
Therefore we are approving Subsection 5.4 with the understanding that 
the design plan requirements at Subsection 3.6.h apply to those 
impoundments that meet the Class B or C criteria for dams in TR-60 or 
meet or exceed the size or other criteria of MSHA at 30 CFR 77.216(a) 
as provided by 30 CFR 780.25(a)(2). We are also approving Subsection 
5.4 to the extent that the design plan requirements at Subsection 3.6.h 
apply to all other impoundments not identified above as provided by 30 
CFR 780.25(a)(3). In summary, we find that as amended, CSR 38-2-5.4.d.4 
is consistent with and no less effective than the Federal regulations 
at 30 CFR 780.25(a)(2) and (a)(3) and 30 CFR 816/817.49(a)(3) 
concerning the design and certification of impoundments, and it can be 
approved based upon our understanding discussed above.
    The proposed amendment at CSR 38-2-5.4.d.4 also satisfies a portion 
of the July 22, 1997, 732 letter that OSM sent to the State. As we 
discussed above in Finding 2.c, WVDEP's Web page contains a copy of TR-
60, and it includes the revisions that were adopted in October 1990. 
Therefore, because the State intends to require that the revised 
version of TR-60 be used by operators when designing and constructing 
sediment control or other water retention structures within the State, 
we find that the proposed reference to TR-60 is consistent with and no 
less effective than the Federal regulations at 30 CFR 816/817.49(a)(1).
    i. CSR 38-2-5.4.e.1. This provision concerns the inspection of 
impoundments and sediment control structures, and has been amended by 
adding language concerning impoundments meeting the Class B or C 
criteria for dams in TR-60. As amended, Subsection 5.4.e.1 provides as 
follows:

    5.4.e.1. A qualified registered professional engineer or other 
qualified professional specialist, under the direction of the 
professional engineer, shall inspect each impoundment or sediment 
control structure provided, that a licensed land surveyor may 
inspect those impoundments or sediment control or other water 
retention structures which do not meet the size or other criteria of 
30 CFR 77.216(a), Impoundments meeting the Class B or C criteria for 
dams in Earth Dams and Reservoirs, TR-60 or W. Va. Code [Section] 
22-14 et seq., and which are not constructed of coal processing 
waste or coal refuse. The professional engineer, licensed land 
surveyor, or specialist shall be experienced in the construction of 
impoundments and sediment control structures.

    The Federal regulations at 30 CFR 816/817.49(a)(11)(iv) provide 
that a qualified registered professional land surveyor may inspect any 
temporary or permanent impoundment that does not meet the Class B or C 
criteria of TR-60, the size or other criteria of 30 CFR 77.216(a), or 
is not a coal mine waste impounding structure covered by the Federal 
regulations at 30 CFR 816.84. The proposed amendment to CSR 38-2-
5.4.e.1 provides the West Virginia program with a counterpart to the 
Federal regulations at 30 CFR 816/817.49(a)(11)(iv). We note, however, 
that as written, CSR 38-2-5.4.e.1 is not perfectly clear as to its 
intended meaning. Specifically, the phrase ``Impoundments meeting'' 
confuses the intended meaning of the proviso that identifies the 
impoundments that a licensed land surveyor may not inspect. It is our 
understanding that the proviso at CSR 38-2-5.4.e.1 means that a 
licensed land surveyor may not inspect impoundments or sediment control 
or other water retention structures which meet the size or other 
criteria of 30 CFR 77.216(a), the Class B or C criteria for dams in TR-
60, or W.Va. Code section 22-14 et seq., and which are constructed of 
coal processing waste or coal refuse. Therefore, in accordance with our 
understanding discussed above, we find that CSR 38-2-5.4.e.1 is 
consistent with and no less effective than the Federal regulations at 
30 CFR 816/817.49(a)(11)(iv), and it can be approved, except for the 
words ``Impoundments meeting'' which are not approved.
    The proposed amendment at CSR 38-2-5.4.e.1 also satisfies a portion 
of the 732 letter that OSM sent the State on July 22, 1997. As we 
discussed above in Finding 2.c, WVDEP's Web page contains a copy of TR-
60, and it includes the revisions that were adopted in October 1990. 
Therefore, because the State intends to require that the revised 
version of TR-60 be used by operators

[[Page 10772]]

when designing and constructing sediment control or other water 
retention structures within the State, we find that the proposed 
reference to TR-60 is consistent with and no less effective than the 
Federal regulations at 30 CFR 816/817.49(a)(1).
    j. CSR 38-2-5.4.f. This provision concerns examinations of 
embankments, and it has been amended by adding language concerning 
impoundments meeting the Class B or C criteria for dams in TR-60. As 
amended, Subsection 5.4.f provides as follows:

    5.4.f.