West Virginia Regulatory Program, 27139-27157 [2020-08150]

Agencies

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

[Federal Register Volume 85, Number 89 (Thursday, May 7, 2020)]
[Rules and Regulations]
[Pages 27139-27157]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-08150]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 948

[WV-113-FOR; OSM-2008-0009; S1D1S SS08011000 SX064A000 201S180110 S2D2S 
SS08011000 SX064A000 20XS501520]


West Virginia Regulatory Program

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

ACTION: Final rule; approval of amendment with exceptions.

-----------------------------------------------------------------------

SUMMARY: We, the Office of Surface Mining Reclamation and Enforcement 
(OSMRE) are issuing a final rule to the West Virginia regulatory 
program (the West Virginia program) under the Surface Mining Control 
and Reclamation Act of 1977 (SMCRA or the Act). Our decision approves, 
with certain exceptions and understandings, an amendment to the West 
Virginia regulatory program. West Virginia revised its Code of State 
Regulations (CSR) and the West Virginia Code, as contained in Committee 
Substitutes for Senate Bills 373 and 751. Additionally, on June 16, 
2008, OSMRE also announced in a separate Federal Register document, its 
interim approval of the State's alternative bonding provisions of the 
West Virginia Surface Coal Mining and Reclamation Act (WVSCMRA) that 
specifically relate to the special reclamation tax and the creation of 
the Special Reclamation Water Trust Fund.

DATES: The effective date is June 8, 2020.

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: 
[email protected].

SUPPLEMENTARY INFORMATION: 

I. Background on the West Virginia Program
II. Submission of the Amendment
III. OSMRE's Findings
IV. Summary and Disposition of Comments
V. OSMRE'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, State laws and regulations 
that govern surface coal mining and reclamation operations in 
accordance with the Act and consistent with the Federal regulations. 
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 April 8, 2008, and received electronically on April 
17, 2008 (Administrative Record Number WV-1503), the West Virginia 
Department of Environmental Protection (WVDEP) submitted an amendment 
to its permanent regulatory program under SMCRA (30 U.S.C. 1201 et 
seq.). The amendment included changes to the West Virginia Code of 
State Regulations (CSR) and the West Virginia Code, as contained in 
Committee Substitutes for Senate Bills 373 and 751.
    Committee Substitute for Senate Bill 373 authorized revisions to 
the State's Surface Mining Reclamation Regulations at 38 CSR 2 and its 
Surface Mining Blasting Regulations at 199 CSR 1. Committee Substitute 
for Senate Bill

[[Page 27140]]

373 was adopted by the Legislature on March 6, 2008, and signed into 
law by the Governor on March 28, 2008. West Virginia Code at paragraphs 
64-3-1 (o) and (p) authorized WVDEP to promulgate the revisions to its 
rules as legislative rules. This amendment included a variety of 
topics, including new language for technical completeness, sediment 
control, storm water runoff, blasting, excess spoil fills, bonding 
programs, water quality, seismograph records, and definitions.
    In addition, the amendment included Committee Substitute for Senate 
Bill 751, which was adopted by the Legislature on March 8, 2008, and 
approved by the Governor on March 27, 2008. Committee Substitute for 
Senate Bill 751 amended and reenacted Section 22-3-11 of the WVSCMRA. 
As mentioned above, OSMRE approved, on an interim basis, under a 
separate Federal Register document a portion of the bill relating to 
the special reclamation tax and the Special Reclamation Water Trust 
Fund (73 FR 33884-33888). The interim rule with request for comments 
was published in the Federal Register on June 16, 2008 (Administrative 
Record Number WV-1507). The public comment period closed on July 16, 
2008.
    We announced receipt of the remaining portions of the proposed 
amendment in the July 8, 2008, Federal Register (73 FR 38941-38951). 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-1508). We did not 
hold a hearing or a meeting because no one requested one. The public 
comment period closed on August 7, 2008. We received comments from 
three Federal agencies and one industry group regarding the various 
provisions announced in the interim and proposed rules.

III. OSMRE's Findings

    The following are the findings that we made concerning the 
amendment under SMCRA and the Federal regulations at 30 CFR 732.15 and 
732.17. As discussed below, we are approving the proposed State 
amendment. Any revisions that we do not specifically discuss below, 
such as changes from ``Office'' to ``Secretary,'' ``Office'' to 
``office,'' or ``Office of Explosives and Blasting'' to ``Secretary'' 
concern non-substantive wording or editorial changes and are approved 
here without further discussion. The full text of the program amendment 
is available online at www.regulations.gov or through OSMRE's West 
Virginia administrative record, upon request.
    Pursuant to Committee Substitute for Senate Bill 373, West Virginia 
proposes the following revisions to its Surface Mining Reclamation 
Regulations at Title 38 CSR 2.

1. CSR 38-2-3.1.c and 3.1.d Applicant Information

    West Virginia proposes to change the references in Subdivisions 
3.1.c and 3.1.d from subsection 2.87 to subsection 2.85. These changes 
are necessary to reference the correct subsection, which defines 
ownership and control.
    We find that the proposed State revisions to Subdivisions 3.1.c and 
3.1.d are not inconsistent with the Federal ownership and control 
requirements at 30 CFR 778.11, and the revisions are approved.

2. CSR 38-2-3.2.g Notice of Technical Completeness

    Notice of technical completeness is new language that is to be 
added to the State's regulations. It is to provide the public an 
opportunity to review and comment on a permit application once 
technical review is completed by the State and the application has been 
supplemented by the applicant after the close of the public comment 
period.
    Under the State's current regulations, after a permit application 
has been determined to be administratively complete and the initial 
public notice and review process has been initiated and in some cases 
completed, clarification information or additional material is 
sometimes submitted by the applicant to supplement that permit 
application in response to the State's technical review or public 
comments. While the State may require a re-advertisement with a 10-day 
comment period under the current provisions of Subdivision 3.2.e., 
these provisions do not provide the State sufficient authority to 
require that such applications be re-advertised once they are 
determined to be technically complete. While the term ``technically 
complete'' as used in the proposed rule is not defined, WVDEP provided 
further clarification regarding its use of the term in a conversation 
with the Charleston Field Office (Administrative Record WV-1515). The 
State would require readvertisement under this new provision if its 
technical review results in an applicant making revisions to the 
probable hydrologic consequences determination, storm water runoff 
analysis (SWROA), maps, designs or some other technical aspect of the 
permit application. In addition, if an application is determined to be 
technically complete and the applicant has failed to readvertise it for 
several months, the Secretary may require it to be readvertised in 
accordance with Subdivision 3.2.g.
    Because this new proposed Subdivision 3.2.g creates opportunities 
for public review of permit applications that are in addition to those 
opportunities available under SMCRA or the Federal regulations, we find 
that it is not inconsistent with the Federal public notice provisions 
at section 513 of SMCRA and the Federal public participation 
requirements at 30 CFR 773.6, and it is approved.

3. CSR 38-2-3.29.a Incidental Boundary Revisions (IBRs)

    This amendment proposes to delete language regarding incidental 
boundary revisions that provides ``or where it has been demonstrated to 
the satisfaction of the Secretary that limited coal removal on areas 
immediately adjacent to the existing permit.'' This proposal is in 
response to earlier OSMRE concerns raised in the March 2, 2006, Federal 
Register (71 FR 10768) about the State's incidental boundary revision 
requirements. In that notice, OSMRE indicated that the wording of the 
rule resulted in an incomplete sentence, which should be revised as the 
State has proposed in this amendment.
    As mentioned, the proposed State revisions are in response to an 
earlier decision by OSMRE regarding the State's incidental boundary 
requirements. We find that the proposed revisions to Subdivision 3.29.a 
are no less effective than the Federal permit revision requirements at 
30 CFR 774.13(d), and the revisions are approved.

4. CSR 38-2-3.32.b Findings--Permit Issuance

    This amendment proposes to delete language at Subdivision 3.32.b 
relating to required written findings for permit issuance.
    The State is proposing to delete data collection requirements, 
which it has determined are no longer necessary for the administration 
of its approved permanent regulatory program. The requirements proposed 
for deletion have no counterparts in SMCRA or in its implementing 
Federal regulations. Moreover, the remaining State requirements still 
require the use of the Federal Applicant Violator System and other 
State databases to determine permit eligibility. Therefore, we find 
that the proposed revisions at Subdivision 3.32.b are no less stringent 
than the Federal permitting requirements at section 510 of SMCRA,

[[Page 27141]]

no less effective than the corresponding Federal regulatory 
requirements at 30 CFR 773.8, 773.11, and 773.12, and the revisions are 
approved.

5. CSR 38-2-5.4.e.1 Sediment Control: Inspections

    This amendment proposes to remove the words ``Impoundments 
meeting'' after ``30 CFR 77.216(a).'' This revision is to delete 
language that OSMRE previously disapproved relating to impoundments. 
See the March 2, 2006, Federal Register for further explanation (71 FR 
10764).
    As discussed in the March 2, 2006, Federal Register, OSMRE 
determined that the words ``Impoundments meeting'' confuses the 
intended meaning of the provision that identifies the impoundments that 
a licensed land surveyor may not inspect. Therefore, the words 
``Impoundments meeting'' in Subparagraph 5.4.e.1 were not approved by 
OSMRE (71 FR at 10771). We find that the State's proposed revision to 
delete the words ``Impoundment meeting'' at Subparagraph 5.4.e.1 is no 
less effective than the Federal inspection requirements for 
impoundments at 30 CFR 816.49(a)(11)(iv) and 817.49(a)(11)(iv), and it 
is approved.
    Furthermore, we are amending and reserving 30 CFR 948.12(i)(1) to 
implement this decision.

6. CSR 38-2-5.4.h.2 Abandonment Procedures

    This amendment proposes to delete language and add new language 
regarding the construction of natural drain ways subsequent to sediment 
pond removal.
    The State proposes to amend Subparagraph 5.4.h.2 by deleting the 
requirement that the channel sides and bottom of a natural drain way be 
rock riprapped, and by deleting the waiver of this requirement. The 
added provisions require that natural drain ways be returned as near as 
practicable to their premining condition with additional consideration 
given to channel and bank stability and habitat enhancement. We find 
that the revised State requirements at Subparagraph 5.4.h.2 regarding 
the abandonment of sediment control structures are no less effective 
than the Federal abandonment requirements at 30 CFR 816.46(b), 
816.49(c), 816.56, 817.46(b), 817.49(c), and 817.56, and the revisions 
are approved.

7. CSR 38-2-5.6.a Storm Water Runoff

    This amendment proposes to clarify what operations may be exempt 
from conducting a ``Storm Water Runoff Analysis'' by adding new 
language.
    Each permit application must include a storm water runoff analysis. 
However, like former Subparagraph 5.6.d.1.e, under proposed Subdivision 
5.6.a, the State intends to exempt operators with mining operations of 
less than 50 acres from having to submit storm water runoff analyses. 
Furthermore, haulroads, loadouts and ventilation facilities, regardless 
of acreage, will be excluded from this requirement. The State will only 
grant exemptions for mining operations of less than 50 acres on a case-
by-case basis. It is our understanding, based on conversations with the 
State, that this exemption will only apply to a mining operation with 
``total'' permitted acreage of less than 50 acres. This is to prevent a 
mining operation with more than 50 permitted acres from getting an 
exemption from the State on a piecemeal basis during the life of its 
operation. The Federal regulations do not specifically provide for a 
storm water runoff analysis, and the State has discretion on how to 
evaluate storm impacts through its cumulative hydrologic impact 
analysis (CHIA). For this reason, we find that the reduced information 
for operations of 50 acres or less that would be submitted to the 
State, as described in revised Subdivision 5.6.a, is not inconsistent 
with the Federal hydrologic requirements at 30 CFR 780.21 and 784.14, 
and it is approved.
    We must note that the proposed revisions to Subdivision 5.6.a do 
not exempt surface mining activities from any applicable regulations 
under the Clean Water Act, including the storm water regulations. Like 
30 CFR 816.42 and 817.42, Subdivision 14.5.b provides that all 
discharges from areas disturbed by surface mining cannot violate 
effluent limitations or cause violation of applicable State or Federal 
water quality standards. In addition, monitoring frequency and effluent 
limitations are governed by standards set forth in the National 
Pollutant Discharge Elimination System (NPDES) Permit issued pursuant 
to the West Virginia Water Pollution Control Act, the Clean Water Act, 
and the regulations promulgated thereunder.

8. CSR 38-2-5.6.b Storm Water Runoff Plan

    This amendment proposes to change the time period from twenty four 
(24) to forty eight (48) hours in which the monitoring results of a 1-
year, 24-hour storm event or greater must be reported to the Secretary 
by the permittee.
    As proposed, operators will be required to report to the State any 
1-year, 24-hour storm event or greater within 48 hours and include the 
results of a permit wide drainage system inspection. The additional 24 
hours is necessary to provide the operator sufficient time to collect 
and report the data to the State. The Federal rules lack the 
specificity of the State rules regarding information considered in 
storm water runoff analyses, therefore, we find that the proposed 
revision to Subdivision 5.6.b, as described above, is no less effective 
than the Federal hydrologic requirements at 30 CFR 780.21 and 784.14, 
and it is approved.

9. CSR 38-2-5.6.d Phase-in Compliance Schedule

    This amendment proposes to delete language regarding the phase-in 
compliance schedule for the submission of the storm water runoff 
analysis that expired in June 2006. Because the deadline for the 
submission of storm water runoff analysis has expired, the State is 
proposing to delete Subparagraphs 5.6.d, d.1, d.1.a, d.1.b, d.1.c, 
d.1.d, and d.1.e.
    There is no direct Federal counterpart to this requirement, and we 
find that the proposed deletion of the State's compliance scheduling 
requirements at Subdivision 5.6.d does not render the remaining storm 
water runoff requirements at Subsection 5.6 less effective than the 
Federal hydrologic requirements at 30 CFR 780.21 and 784.14, and it is 
approved.

10. CSR 38-2-6 Blasting

    This amendment proposes to remove duplication of rules for blasting 
at Section 6. At Subsections 6.1 and 6.2, this amendment proposes to 
add at the end of the subsections, ``and be in accordance with the 
requirements with Surface Mining Blasting Rule, Title 199 Series 1.''
    The State is making changes to Subsection 6.1 to ensure that 
operators comply with all State and Federal blasting requirements, 
including the Surface Mining Blasting Rule at Title 199, Series 1. We 
find that the proposed State revision at Subsection 6.1 is no less 
effective than the Federal blasting requirements at 30 CFR 816.61 and 
817.61 and is approved.
    The State is making this revision to Subsection 6.2 to ensure that 
all blasting plans that are submitted with permit applications are in 
accordance with the State's Surface Mining Blasting Rule, Title 199, 
Series 1. The State's blasting rules at Title 199, Series 1 are 
counterparts to the Federal blasting regulations at 30 CFR 816.61 
through 816.68 and 817.61 through 817.68. We find that the proposed 
revision to Subsection 6.2 is no less effective than

[[Page 27142]]

the Federal blasting plan requirements at 30 CFR 780.13(a), and it is 
approved.
    Subsections 6.3, 6.4, 6.5, 6.6, 6.7, and 6.8 are proposed to be 
deleted entirely. These provisions pertain to public notice of blasting 
operations, blast record, blasting procedures, blasting control for 
other structure, certified blasting personnel, and pre-blast survey, 
respectively.
    The State is proposing to delete these blasting requirements 
because similar requirements are set forth in its Surface Mining 
Blasting Rule at Title 199, and the State does not want to have 
redundant blasting requirements in its Surface Mining Reclamation 
Rules. The deleted requirements are set forth in the State's Surface 
Mining Blasting Rule at Subsections 3.3, 3.5, 3.6, 3.7, 3.8 and 4. 
Because these blasting requirements are set forth in the State's 
Surface Mining Blasting Rule, we find that the deletion of these 
blasting requirements does not render the State's Surface Mining 
Reclamation Rules less effective than the Federal blasting 
requirements, and the deletion of these subsections is approved.
    Proposed Subparagraph 3.6.c.1 differs slightly from deleted 
Subparagraph 6.5.c.1 in that the heading has been modified to read 
``Lower frequency limit of measuring system maximum level, in Hz (no 
more than -3 dB).'' As discussed below in Finding 23, this revision is 
no less effective than the Federal airblast limits at 30 CFR 816/
817.67(b), and the deletion of Subparagraph 6.5.c.1 is approved.
    Proposed Subdivision 3.6.g does not include the provision in 
existing Subdivision 6.5.h that is to be deleted and which provides 
that, ``The Secretary may prohibit blasting on specific areas where it 
is deemed necessary for the protection of public or private property or 
the general welfare and safety of the public.'' A similar existing, 
unmodified requirement at Subsection 3.11 provides that the Secretary 
may prohibit blasting or may prescribe distance, vibration and airblast 
limits on specific areas, or on a case by case basis, where research 
establishes it is necessary, for the protection of the public or 
private property, or the general welfare and safety of the public. 
Although similar, this provision is less effective than the Federal 
requirements in that the Secretary's action is limited to where 
research establishes that a prohibition is necessary to protect the 
public, private property or general welfare and safety of the public. 
Unlike the existing State provision at Subsection 3.11, the Federal 
requirements at 30 CFR 816.64(a) provide in part that the regulatory 
authority may limit the area covered, timing, and sequence of blasting 
if such limitations are necessary and reasonable in order to protect 
the public health and safety or welfare. Therefore, we are not 
approving the State's proposed deletion of Subdivision 6.5.h, which 
provides that the Secretary may prohibit blasting on specific areas 
where it is deemed necessary for the protection of public or private 
property or the general welfare and safety of the public.
    Proposed Subdivision 3.8.a, unlike existing Subdivision 6.8.a, 
neither requires the operator inform all residents or owners of manmade 
dwellings or structures located within one half (\1/2\) mile of the 
permit area on how to request a pre-blast survey nor requires the 
resident or owner of the structure to submit a written request to the 
Secretary for the operator to conduct such survey. The State's distance 
requirements regarding pre-blast surveys are set forth in State law at 
WVSCMRA 22-3-13a and are not repeated in the rules to avoid redundancy. 
As discussed in the November 12, 1999, Federal Register, OSMRE 
determined that the State's pre-blast survey requirements at WVSCMRA 
22-3-13a(a) and (b) provide for no less effective blasting controls of 
surface coal mining operations than do the provisions of SMCRA section 
515(b)(15)(E), and are, therefore, not inconsistent with section 
515(b)(15)(E) (64 FR 61509). Based on this prior determination, the 
deletion of Subdivision 6.8.a is approved.
    Unlike existing Subparagraph 6.8.a.1, proposed Subdivision 3.8.a 
does not require residents or owners of dwellings or structures to 
submit a written request to the Secretary for a pre-blast survey. 
Proposed Subdivision 3.8.a implies that either the operator or the 
operator's designee will perform the pre-blast survey without the 
written request of the occupant or owner of the dwelling or structure, 
unless said occupant or owner has waived the right to a pre-blast 
survey. In practice, we know that the operator submits a notice to the 
occupant or owner of the dwelling or structure, and the owner or 
occupant completes a pre-blast survey request (Form EB-39A) if they 
want a pre-blast survey or a waiver (Form EB-39B) if they do not want 
one. If a pre-blast survey is not conducted, the operator completes a 
pre-blast survey affidavit (Form EB-39C) explaining why it was not 
conducted. As discussed, the State's aforementioned forms provide that 
a pre-blast survey will be conducted by the operator or the operator's 
designee upon written request of the owner or occupant.
    In addition, the State's statutory provisions at WV Code 22-3-13a 
provide that an operator or his designee must make, in writing, a 
notice to all owners and occupants of man-made dwellings or structures 
that the operator or his designee will perform the pre-blast surveys. 
Although the State's written notice requirements are somewhat 
different, we find that together the State's pre-blast survey forms, 
written notification requirements at proposed Subdivision 3.8.a, and 
its pre-blast survey requirements at WV Code 22-3-13a are no less 
stringent than and no less effective than the Federal pre-blast survey 
requirements at SMCRA section 515(b)(15)(E) and 30 CFR 816.62 and 
817.62, and the deletion of existing Subparagraph 6.8.a.1 is approved. 
Any future change in the aforementioned forms by the State cannot be 
done without OSMRE's prior approval. Otherwise, the State will be 
expected to modify its pre-blast survey requirements at Subdivision 
3.8.a to specifically provide that a resident or owner of a dwelling or 
structure within \1/2\ mile of any part of the permit area may request 
a pre-blast survey. Therefore, we are approving proposed Subdivision 
3.8.a and the deletion of Subparagraph 6.8.a.1 with these 
understandings.
    Finally, proposed Subdivision 3.8.b, unlike existing Subparagraph 
6.8.a.3, does not require that a written report of the pre-blast survey 
be prepared and signed by the person or persons approved by the 
Secretary who conducted the survey. However, the State statute at 
WVSCMRA 22-3-13a(f)(5) requires the pre-blast survey to include the 
name, address, and telephone number of the person or firm performing 
the pre-blast survey, and the statute at WVSCMRA 22-3-13a(f)(18) 
requires the signature of the person conducting the pre-blast survey. 
In addition, Subdivision 3.10.a requires that pre-blast surveys be 
submitted on forms prescribed by the Secretary. The State's pre-blast 
survey form (EB-40) requires the surveyor in training, if applicable, 
and the approved surveyor to sign and date the form. Therefore, we find 
that Subdivision 3.8.b, when read in combination with WVSCMRA 22-3-
13a(f)(5) & (18) and Subdivision 3.10.a, is no less effective than the 
Federal pre-blast survey requirements at 30 CFR 816.62(b) and 
817.62(b), and the deletion of Subparagraph 6.8.a.3 is approved.

11. CSR 38-2-7.4.b.1.J.1.(c) Front Faces of Valley Fills

    This amendment proposes to add language that was previously removed

[[Page 27143]]

and not approved by OSMRE in the March 2, 2006, Federal Register (71 FR 
10776).
    West Virginia is proposing to amend Subparagraph 7.4.b.1.J.1.(c) by 
reinstating the following language:

    7.4.b.1.J.1.(c) Surface material shall be composed of soil and 
the materials described in Subparagraph 7.4.b.1.D.

    As discussed in the March 2, 2006, Federal Register notice, the 
State revised Subparagraph 7.4.b.1.J by deleting the requirement that 
the surface material be composed of soil and the materials described in 
Subparagraph 7.4.b.1.D. The intent of the change was to ensure that 
fill faces do not have to be covered with four feet of surface 
material. However, the effect of the deletion of subparagraph (c) was 
that the front faces of fills were exempt from all of the requirements 
of this rule, except for those set forth in Subparagraph 7.4.b.1.J. The 
revised State rule would not require topsoil or topsoil substitutes to 
be redistributed on fill faces. Because OSMRE did not approve the 
deletion of Subparagraph 7.4.b.1.J.1.(c), the provision, in essence, 
remained in the West Virginia approved program.
    WVDEP proposes to resolve this issue by reinserting Subparagraph 
7.4.b.1.J.1.(c) into its commercial forestry and forestry rules. We 
find that the proposed State revision at Subparagraph 7.4.b.1.J.1.(c) 
is no less effective than the Federal topsoil redistribution 
requirements at 30 CFR 816.22(d)(1) and 816.71(e)(2), and it is 
approved. Furthermore, we are amending and reserving 30 CFR 
948.12(i)(2) to implement this decision.

12. CSR 38-2-14.15.c.2 Reclaimed Areas: Calculation of Disturbed Areas

    This amendment proposes to clarify contemporaneous reclamation 
rules and bonding of excess spoil disposal fills by deleting ``area is 
available to do so;'' and adding ``first two lifts are in and are 
seeded'' at the end of the subparagraph.
    The provisions at Subparagraphs 14.15.c.1 through 14.15.c.4 set 
forth the criteria for that area which is not to be included in the 
calculation of disturbed area. Subparagraph 14.15.c.2 is being amended 
to provide that an area would not be considered to be disturbed if it 
is within the confines of the excess spoil fill, which is being 
constructed from the toe up and the first two lifts have been installed 
and seeded. As such, these areas would appear to be exempt from the 
contemporaneous reclamation requirements. However, as noted below, the 
approved program, even after approval of the proposed change to 
14.15.c.2, preserves the contemporaneous reclamation requirement for 
excess spoil fills.
    The Federal contemporaneous reclamation requirements at 30 CFR 
816.100 and 817.100 provide in part that reclamation efforts, including 
but not limited to backfilling, grading, topsoil replacement and 
revegetation, on all land that is disturbed by surface mining 
activities must occur as contemporaneously as practicable. Given this 
limited requirement and the fact that all excess spoil fills must be 
constructed contemporaneously as provided by Subdivision 14.15.d, we 
find that the proposed revision to the State's contemporaneous 
reclamation provisions at Subparagraph 14.15.c.2, which define the 
areas that are not included within the calculation of disturbed area, 
does not render the West Virginia rule less effective than the Federal 
contemporaneous reclamation requirements at 30 CFR 816.100 and 817.100, 
and it is approved.

13. CSR 38-2-14.15.d.3 Excess Spoil Disposal Fills: Bonding Proposed 
Fill Areas

    This amendment proposes to clarify the contemporaneous reclamation 
and bonding requirements of certain excess spoil disposal fills by 
deleting the phrase ``to use single lift top down construction'' and 
adding ``with erosion protection zones'' after the word ``designed.''
    Top down fills are often referred to as end dump fills. The State 
requirements at Subdivision 14.14.g provide that durable rock fills may 
only be approved if they are constructed from the toe upward or in a 
single lift with an erosion protection zone. As proposed, all single 
lift fills must now be constructed with erosion protection zones. In 
addition, any operation that proposes a durable rock fill that is 
designed with an erosion protection zone must bond the fill area with 
the required maximum bond of $5,000 per acre.
    By continuing to require bonding at the maximum, site-specific, 
per-acre amount for these durable rock fills, the proposed requirement 
will continue to ensure the protection of the State's alternative 
bonding system, Special Reclamation Fund, should an operator forfeit 
the bond and fail to complete the reclamation of a single lift, durable 
rock fill with an erosion protection zone. Although there is no direct 
Federal counterpart to this provision, we find that the proposed 
addition of the reference to erosion protection zones at Subparagraph 
14.15.d.3 is consistent with the Federal requirements at 30 CFR 800.14, 
816.71, and 816.100, and it is approved.

14. CSR 38-2-14.15.e Applicability

    This amendment proposes to remove the applicability schedule that 
expired in 2004. The applicability schedule regarding the 
implementation of contemporaneous reclamation plans at Subparagraphs 
14.15.e, 14.15.e.1 and 14.15.e.2 are removed completely and 14.15.e.3 
is renumbered as 14.15.e.
    These requirements set forth the dates by which active and inactive 
operations had to modify their mining and reclamation plans to comply 
with the revised excess spoil requirements at Subdivision14.15.d. The 
State is proposing to delete these requirements, because all existing 
permit applications have been modified to comply with Subdivision 
14.15.d.
    Although there are no direct Federal counterparts to the 
subparagraphs that the State proposes to delete, we find that the 
proposed deletion of the applicability requirements at Subparagraphs 
14.15.e, 14.15.e.1 and 14.15.e.2 and the renumbering of Subdivision 
14.15.e is not inconsistent with the Federal excess spoil permitting 
requirements at 30 CFR 780.35, and the proposed deletion of these 
subparagraphs is approved.

15. CSR 38-2-19.9 Land Exempt From Designation as Unsuitable for 
Surface Coal Mining Operations

    The State proposes to amend its requirements at Subsection 19.9 
regarding land exempt from designation as unsuitable for surface coal 
mining operations. Specifically, WVDEP proposes to amend Subparagraph 
19.9.a.2 by changing the word ``and'' to ``or.''
    As amended, Subdivision 19.9.a will provide that the requirements 
of this section do not apply to:

    19.9.a.1. Lands on which surface coal mining operations were 
being conducted prior to August 3, 1977;
    19.9.a.2. Lands covered by a permit issued after August 3, 1977; 
or
    19.9.a.3. Lands where substantial legal and financial 
commitments in surface coal mining operations were in existence 
prior to January 4, 1977.

    The proposed change at Subparagraph 19.9.a.2 is to correct an 
apparent error that has existed in the State's Surface Mining 
Reclamation Regulations. As proposed, any of the three situations 
mentioned above would be exempt from the State's lands unsuitable 
requirements at Subsection 19.7. We find that the proposed revision to 
Subparagraph 19.9.a.2 is no less effective than the Federal lands

[[Page 27144]]

unsuitable requirements at 30 CFR 762.13, and it is approved.

16. CSR 38-2-23.3 Water Quality--Coal Remining Operations

    This amendment proposes to make the State's remining rule 
consistent with the proposed changes in the State's National Pollutant 
Discharge Elimination System (NPDES) rules by deleting the phrase 
``which began after February 4, 1987, and on a site which was mined 
prior to August 3, 1977,'' after ``operation:''
     Deleting ``water quality exemptions'' and adding 
``effluent limitations'' after ``the;''
     adding ``Title 47 Series 30 subdivision'' and deleting 
``Subsection'' and adding ``6.2.d.'' after ``in;'' and
     deleting ``subsection (p), section 301 of the Federal 
Clean Water Act, as amended or a coal remining operation as defined in 
40 CFR part 434 as amended may qualify for the water quality exemptions 
set forth in 40 CFR part 434 as amended.''
    The State is revising its remining requirements to comply with the 
coal remining provisions adopted by the U.S. Environmental Protection 
Agency (EPA) on January 23, 2002 (67 FR 3370-3410). Coal remining 
operation, as defined by 40 CFR 434.70(a), means a coal mining 
operation at a site on which coal mining was previously conducted and 
where the site has been abandoned or the performance bond has been 
forfeited. The EPA established a Coal Remining Subcategory at Subpart 
G, 40 CFR 434.70 through 434.75, to address pre-existing discharges. 
The references to February 4, 1987, and subsection (p), section 301 of 
the Clean Water Act (CWA) are deleted because the EPA based its coal 
remining rules on section 304(b) of the CWA, rather than section 
301(p), known as the Rahall Amendment. In response to a comment, the 
EPA noted that the authority for its coal remining rule is section 
304(b) of the CWA, which requires the EPA to adopt and revise 
regulations providing guidelines for effluent limitations as 
appropriate. The Rahall Amendment, section 301(p) of the CWA, provided 
specific authority for modified, less stringent effluent limitations 
for specified coal remining operations. Because the effluent 
limitations guidelines for the Coal Mining Point Source Category did 
not provide any different requirements for coal remining operations, 
the Rahall Amendment provided the only basis for issuing permits 
containing modified requirements to remining operations. In 
promulgating regulations adopting effluent limitation guidelines for 
the coal remining subcategory, the EPA noted that its new remining 
requirements are consistent with, but not necessarily identical to, the 
provisions of the Rahall Amendment. According to the EPA, the 
applicability of these effluent limitation guidelines to remining 
operations on abandoned mine lands abandoned after the enactment of 
SMCRA is within its discretion under section 304(b) of the CWA.
    The State's effluent limitation requirements are set forth at CSR 
47-30-6.2. In response to the Federal NPDES remining rule changes, 
Subsection 6.2.d was amended to include effluent limitation provisions 
for coal remining operations.
    It should be noted that WVDEP has incorrectly referenced the wrong 
Title in its CSR. WVDEP understands that the remining variance should 
be issued in accordance with the procedural rules at 46CSR6, not 
47CSR6. There are no procedural rules at 47CSR6. However, there are 
procedural rules governing site-specific revisions to water quality 
standards at 46CSR6. Therefore, we recommend that the State correct the 
cross reference in its coal remining rules or modify its procedural 
rules and include them in Title 47. Nevertheless, given the EPA's 
changes to its remining rules at 40 CFR part 434, subpart G, and the 
subsequent changes made by the State to its coal remining rules at CSR 
47-30-6.2.d, we find that the State's proposed revisions to Subsection 
23.3 regarding effluent limitations for coal remining operations are no 
less effective than the Federal hydrologic balance requirements at 30 
CFR 816.42 and 817.42, and they are approved. We must caution, however, 
that these remining requirements do not relieve the State regulatory 
authority of its duty to use bond forfeiture proceeds to remedy 
problematic pollutional discharges at bond forfeiture sites.

17. CSR 38-2-23.4 Requirements To Release Bonds

    This amendment, which relates to bond release for coal remining 
operations, proposes to delete the following language: ``and the terms 
and conditions set forth in the NPDES Permit in accordance with 
subsection (p), section 301 of the Federal Clean Water Act, as amended 
or 40 CFR part 434 as amended.''
    The State is revising its bond release requirements for coal 
remining operations. As proposed, coal remining operations will have to 
comply with the same bond release standards as regular coal mining 
operations, which include compliance with all the terms and conditions 
of the NPDES permit prior to bond release. The references to subsection 
301(p) of the CWA and to 40 CFR part 434 are being deleted because, as 
explained above in Finding 16, new coal remining permits may, in some 
instances, qualify for NPDES effluent limitations pursuant to 
subsection 304(b) of the CWA and under Title 47 Series 30 Subdivision 
6.2.d of the West Virginia NPDES Rules for Coal Mining Facilities. The 
general provision remaining in Subsection 23.4 requires compliance with 
the NPDES permit, issued under any of the above-referenced authorities, 
as a pre-requisite to final bond release.
    As amended, the revised State bond release requirements at 
Subsection 23.4 for coal remining operations are no less effective than 
the Federal requirements at 30 CFR 800.40, 816.42, 816.106, 817.42, and 
817.106, and the revisions are approved.
    Pursuant to Committee Substitute for Senate Bill 373, West Virginia 
proposes the following amendments to its Surface Mining Blasting Rule 
at Title 199 CSR 1:

18. Title 199--Surface Mining Blasting Rule CSR 199-1-2 Definitions

    Various definitions relating to blasting at CSR 199-1-2 are amended 
by non-substantive grammatical changes, such as putting all definition 
terms in quotation marks; changing the term ``Office of Explosives and 
Blasting'' to ``Secretary;'' deleting the definitions of ``Office'' and 
``Chief'' because those terms are no longer used in this rule; and 
renumbering of definitions due to additions and/or deletions of terms. 
In addition, there are similar changes in other sections throughout 
this rule. The proposed revisions are consistent with statutory changes 
at West Virginia Code 22-1-2 and 22-1-7 relating to the organization of 
offices within the WVDEP and no less effective than the Federal 
requirements regarding the state regulatory authority at 30 CFR 700.5. 
Given the non-substantive nature of these proposed changes, no further 
determinations will be made with respect to such revisions in 
subsequent sections described herein.
    The following substantive revisions at CSR 199-1-2 are as follows:
    At Subsection 2.8, ``Blast Site'' is amended and means the area 
where explosive material is handled during loading into boreholes. This 
includes the perimeter area formed by the loaded blast holes as 
measured, 50 feet in all directions from the collar of the outermost 
loaded borehole; or that area protected from access by a physical 
barrier to prevent entry to the loaded blast holes. The term ``blast 
site'' is not

[[Page 27145]]

defined in either SMCRA or its implementing regulations. However, we 
find the proposed revision to the State's definition of blast site at 
Subsection 2.8 to be no less effective than the Federal regulations at 
30 CFR 816.61, 816.64, 817.61, and 817.64, all of which refer to a 
``blasting site,'' and the revision is approved.
    At Subsection 2.27, ``Other Structure'' is new and means any man 
made structure excluding ``protected structures'' within or outside the 
permit areas which includes but is not limited to, gas wells, gas 
lines, water lines, towers, airports, underground mines, tunnels, 
bridges, and dams. The term does not include structures owned, 
operated, or built by the permittee for the purpose of carrying out 
surface mining operations.
    The Federal regulations at 30 CFR 816. 67(b)(1)(i) and (d)(2)(i) 
and 817.67(b)(1)(i) and (d)(2)(i) define protected structures to 
include any dwelling, public building, school, church, or community or 
institutional building outside the permit area. The Federal regulations 
at 30 CFR 816.67(d)(1) and 817.67(d)(1) also provide that all 
structures, except protected structures, in the vicinity of the 
blasting area such as water towers, pipelines and other utilities, 
tunnels, dams, impoundments, and underground mines must be protected 
from damage by establishment of a maximum allowable limit on the ground 
vibration submitted by the operator in the blasting plan and approved 
by the regulatory authority. The preamble to the Federal regulations 
clarifies that 30 CFR 816.67(d)(1) and 817.67(d)(1) set levels for 
structures other than buildings (48 FR 9788, 9800, March 8, 1983). The 
burden for setting limits for these other structures is on the operator 
and regulatory authority. In addition, such limits would be for all 
structures in the vicinity of the blasting area. While not specifically 
defined in the regulation or its accompanying preamble, the phrase ``in 
the vicinity of the blasting area'' is broad enough to include 
structures within and outside of the permit area. We construe the 
phrase to include structures within and outside of the permit area, in 
order to ensure that the regulatory authority has ample authority to 
protect those structures within the vicinity of the blasting because 
damage to such structures, including those within the permit area, 
could lead to damage to public and private property outside the permit 
area, or adverse impacts to underground mines in contravention of 
section 515(b)(15)(C) of SMCRA, 30 U.S.C. 1265(b)(15)(C). As discussed 
in the November 12, 1999, Federal Register, WVDEP inadvertently deleted 
language at West Virginia Code section 22-3-13(b)(15)(C), which was the 
State's statutory counterpart to SMCRA section 515(b)(15)(C); it 
acknowledged that reinserting the deleted language would remove any 
uncertainty relative to the authority of WVDEP to protect the public 
from the effects of blasting (64 FR 61507, 61509, November 12, 1999). 
Fortunately, the approved West Virginia program still contains a 
regulatory counterpart to section 515(b)(15)(C), at CSR 199-1-3.6.a. 
However, we recommend that West Virginia reinsert the deleted statutory 
language at West Virginia Code section 22-3-13(b)(15)(C) to ensure the 
protection of the public from the effects of blasting.
    The Federal regulations at 30 CFR 816.67(e) and 817.67(e) exclude 
from airblast and ground vibration limits structures owned by the 
permittee and those owned by the permittee and leased to another 
person, if a written waiver is obtained from the lessee. The 1979 
predecessor to these exemption provisions, at former 30 CFR 
816.65(e)(1) and 817.65(e)(1), clearly stated that the exemption from 
the numerical airblast limits was applicable only to the buildings 
designated as protected structures, i.e., dwellings, public buildings, 
schools, churches, commercial, or institutional structures. (``If a 
building owned by the person conducting surface mining activities is 
leased to another person, the lessee may sign a waiver relieving the 
operator from meeting the airblast limitations of this paragraph.'' 30 
CFR 816.65(e)(1) (March 13, 1979, repealed March 8, 1983) (emphasis 
added). While the exemption from numerical ground vibration limits did 
not explicitly apply exclusively to these aforementioned buildings, it 
is logical to interpret the exemption in this fashion, because these 
buildings were, and remain currently, the only structures otherwise 
subject to the numerical ground vibration limits set forth in the 
Federal regulations. 30 CFR 816.65(j) and 817.65(j) (March 13, 1979, 
repealed March 8, 1983). These provisions were reworded and moved to 30 
CFR 816.67(e) and 817.67(e) in 1983; however, there was no discussion 
of any change in meaning to the exemptions from the manner in which 
they were created in 1979. 48 FR at 9802-3 (March 8, 1983). Therefore, 
we believe the ``permittee-owned'' exemption applies only to dwellings, 
public buildings, schools, churches, commercial or institutional 
structures, and not to other structures, such as water towers, 
pipelines, other utilities, tunnels, dams, impoundments, and 
underground mines, for which there must be site-specific numerical 
ground vibration limitations that are proposed by the operator in the 
blasting plan and approved by the regulatory authority. 30 CFR 
816.67(d)(1).
    However, the State's proposed definition of ``other structure'' 
does not include structures owned, operated, or built by the permittee 
for the purpose of carrying out surface mining operations. Therefore, 
structures such as pipelines, dams, impoundments, or underground mines 
that are owned, operated, or built by the permittee, whether within or 
outside the permit area, would be exempted from the ground vibration 
limits that apply, under CSR 199-1-3.7a., to ``other structures.'' As 
such, the definition would render the State's program less effective 
than the Federal regulations at 30 CFR 816.67(d)(1) and 817.67(d)(1), 
which contains no exemption from ground vibration limits for structures 
owned, operated, or built by the permittee. For this reason, we are not 
approving the last sentence of the definition of other structure at CSR 
199-1-2.27, which states that ``[t]he term does not include structures 
owned, operated, or built by the permittee for the purpose of carrying 
out surface mining operations.''
    At Subsection 2.35, the definition of ``Secretary'' is 
substantively identical to former Subsection 2.23 and means the 
Secretary of the Department of Environmental Protection or the 
Secretary's authorized agent. We find that the proposed change at 
Subsection 2.35 is no less effective than the Federal requirements with 
respect to the State regulatory authority as set forth at 30 CFR 700.5, 
and it can be approved.
    At Subsection 2.36, ``Structure'' is amended and means ``a 
protected structure'' or ``other structure,'' which is any manmade 
structure within or outside the permit areas and which includes, but is 
not limited to, dwellings, outbuildings, commercial buildings, public 
buildings, community buildings, institutional buildings, gas lines, 
water lines, towers, airports, underground mines, tunnels, and dams. In 
addition, the term does not include structures built and/or utilized 
for the purpose of carrying out the surface mining operation. We find 
the revision to the definition of structure at Subsection 2.36 to be 
consistent with the Federal requirements pertaining to structures at 30 
CFR 816,67(d) and 817.67(d), and the revision is approved.
    However, we are taking this opportunity to re-examine the exemption 
for structures built and/or utilized for the purpose of carrying out

[[Page 27146]]

the surface mining operation at CSR 38-2-2.119 and 199-1-2.36. While 
this exemption was approved on January 21, 1981, as part of the 
original program approval (46 FR 5915), we now believe it must be 
disapproved, for the same reasons that we are disapproving a similar 
exemption to the definition of ``other structure,'' as discussed above 
in this finding. The reason for our change in position is that we did 
not believe, until West Virginia submitted the definition of ``other 
structures'' in this amendment, that the State intended to exempt non-
building type structures, such as gas lines, water lines, towers, 
airports, underground mines, tunnels, or dams from ground vibration 
limits. We now have reason to believe, however, that the exemptions in 
the definitions of ``structure'' and ``other structure'' will apply to 
these structures. Therefore, we are revoking our prior approvals and 
are not approving the following sentences in the State's definitions of 
``structure'' at CSR 38-2-2.119 and 199-1-2.36: ``The term does not 
include structures built and/or utilized for the purpose of carrying 
out the surface mining operation.''
    At Subsection 2.37, ``Supervised a Blasting Crew'' is amended and 
means a person that is responsible for the conduct of a blasting 
crew(s) and/or that the crew(s) is directed by that person. Though it 
has no Federal counterpart, the revised definition of supervised a 
blasting crew at Subsection 2.37 is no less effective than the Federal 
requirements relating to blasters at 30 CFR 816.61 and 817.61, and it 
is approved.
    At Subsection 2.38, ``Surface Mine Operations'' is amended and 
means all areas of surface mines, and surface area of underground mines 
(including shafts and slopes), areas ancillary to these operations, and 
the reclamation of these areas, including adjacent areas ancillary to 
the operations, i.e., preparation and processing plants, storage areas, 
shops, haulageways, roads, and trails, which are covered by the 
provisions of W. Va. Code 22-3-1 et seq., and rules promulgated under 
that article. As discussed in the December 10, 2003, Federal Register 
notice, OSMRE approved the State's previous definition with the 
understanding that it only intends to exclude ``underground workings'' 
from the definition of surface mine and surface area of underground 
mines (68 FR 68724, 68729). The revised definition of ``surface mine 
operations'' at proposed Subsection 2.38 resolves our earlier concern. 
We find Subsection 2.38 to be no less effective than the Federal 
definition of surface coal mining operations at 30 CFR 700.5, and the 
revision is approved.
    At Subsection 2.39, ``Worked on a Blasting Crew'' is amended and 
means that a person has first-hand experience in storing, handling, 
transporting, and using explosives, and has participated in the 
loading, connecting, and initiation processes of blasting, and has 
experience in blasting procedures, and preparation of blast holes. 
While it has no direct Federal counterpart, the revised State 
definition of ``worked on a blasting crew'' at Subsection 2.39 is no 
less effective than the Federal blasting requirements at 30 CFR 816.61 
and 817.61 and is approved.

19. CSR 199-1-3.2 Blasting Plans

    Subparagraph 3.2.a.5, regarding blasting plans, is amended by 
adding language to minimize, not reduce, dust outside the permit area. 
Though it has no direct Federal counterpart, the proposed State 
revision at Subparagraph 3.2.a.5 is consistent with the Federal 
blasting plan requirements at 30 CFR 780.13, and it is approved.
    Subdivision 3.2.b, regarding blasting plans, is amended by 
requiring that the person conducting the review must be experienced in 
common blasting practices used on surface mining operations and must be 
a certified inspector. In addition, the reviewer will take into 
consideration the proximity of individual dwellings, structures, or 
communities to the blasting operations. These two new requirements have 
no direct Federal counterparts; however, we find that the proposed 
State revisions at Subdivision 3.2.b are consistent with the Federal 
blasting plan requirements at 30 CFR 780.13, and the revisions are 
approved.
    Subdivision 3.2.c is amended to provide that the blasting plan must 
also contain an inspection and monitoring procedure to ensure that all 
blasting operations are conducted to minimize, not eliminate, to the 
maximum extent technically feasible, adverse impacts to the surrounding 
environment and surrounding occupied dwellings. In addition, this 
subdivision is amended to provide that all seismographs used to monitor 
airblast or ground vibrations or both must comply with the 
International Society of Explosives Engineers (ISEE) Performance 
Specifications for Blasting Seismographs. The ISEE standards referenced 
in the revised State rule include the ISEE Performance Specification 
for Blasting Seismographs copyright 2000 and the ISEE Field Practices 
Guidelines for Blasting Seismographs copyright 1999, which is 
referenced therein. Copies of the ISEE Performance Specifications and 
the Field Practice Guidelines have been included in the administrative 
record and are available for public review (Administrative Record 
Number WV-1503A). We find that the proposed revisions at Subdivision 
3.2.c are consistent with the Federal blasting plan requirements at 30 
CFR 780.13(a) and (b), and the revisions are approved.
    Subdivision 3.2.d is amended to provide that for operations where a 
blasting related notice of violation (NOV) or cessation order (CO) has 
been issued, the Secretary must review the blasting plan as soon as 
possible and no later than thirty (30) days of final disposition of the 
NOV or CO. As currently written, the subdivision requires only that the 
plan be reviewed within 30 days of final disposition of the NOV or CO, 
without the additional requirement that the plan be reviewed ``as soon 
as possible.'' While there is no specific Federal counterpart to this 
revision, we find that the proposed State revision at Subdivision 3.2.d 
is no less effective than the Federal requirements at 30 CFR 
816.61(d)(5) and 817.61(d)(5), and it is approved.
    Subdivision 3.2.e relating to the review of a blasting plan where 
an enforcement action has been taken by the State is deleted in its 
entirety. The provisions to be deleted provide: ``Where a notice of 
violation (NOV) or cessation order (CO) has been issued; the Office 
must review the blasting plan within thirty (30) days of final 
disposition of the NOV or CO. This review will focus on the specific 
circumstances that led to the enforcement action. If necessary, the 
Secretary may require that the blasting plan be modified to insure all 
precautions are being taken to safely conduct blasting operations.'' 
The requirements at Subdivision 3.2.e are redundant with those at 
Subdivision 3.2.d. Therefore, we approve of the deletion of these 
requirements.

20. CSR 199-1-3.3 Public Notice of Blasting Operations

    Subparagraph 3.3.a, relating to public notice of blasting 
operations, is amended by requiring that at least ten (10) days, but 
not more than thirty (30) days, prior to commencing any blasting 
operations that detonate five (5) pounds or more of explosives at any 
given time, the operator must publish a blasting schedule in a 
newspaper of general circulation in all the counties of the proposed 
permit area. The operator must republish and redistribute the schedule 
at least every twelve months in the same manner above. In addition, new 
language provides that the

[[Page 27147]]

permittee must retain proof of publication.
    We find the revisions to the State's blasting schedule requirements 
at Subdivision 3.3.a to be no less effective than the Federal blasting 
schedule requirements at 30 CFR 816.64(b), and the revisions are 
approved.
    At Subparagraph 3.3.b.1, existing language is deleted, and new 
language is added related to the placement of signs for ``Blasting 
Areas'' at the edge of any site that is within 100 feet of any public 
road and where any road provides access to the blasting area.
    We find the revised State provision regarding blasting signs at 
Subparagraph 3.3.b.1 to be substantively identical to, and, therefore, 
no less effective than the Federal blasting requirements at 30 CFR 
816.66(a)(1) and 817.66(a)(1), and it is approved.
    At Subparagraph 3.3.b.2, existing language is deleted, and new 
language is added for the placement of signs at all entrances to the 
permit area from public roads for warnings of explosives in use. The 
sign must also contain a list of the meanings for signals used to give 
the all-clear and blast warnings and also explain blasting areas and 
charged holes.
    We find the revised State provision regarding blasting signs at 
Subparagraph 3.3.b.2 to be substantively identical to, and, therefore, 
no less effective than the Federal blasting requirements at 30 CFR 
816.66(a)(2) and 817.66(a)(2), and it is approved.

21. CSR 199-1-3.4 Surface Blasting at Underground Mines

    This amendment proposes to add a new Subdivision, 3.4.b, regarding 
the regulation of surface blasting at underground mines.
    This provision is intended to clarify the applicability of State's 
blasting requirements in the development of shafts and slopes 
associated with underground mining activities. The proposed requirement 
is intended to resolve past confusion regarding the State's 
responsibility in regulating underground blasting activities relating 
to the development of shafts and slopes and to clearly provide how the 
State's Surface Mining Blasting Rule applies with regard to such 
development.
    We find that the new State provision at Subdivision 3.4.b is no 
less effective than the Federal requirements regulating surface 
blasting activities incident to underground coal mining activities at 
30 CFR 817.61, and it is approved. To ensure compliance with the 
monitoring obligations under Subdivision 3.4.b, we recommend that the 
State require the blaster to maintain a blasting log on a daily basis 
and conduct regular monitoring of ground vibration and airblast limits 
through the use of a seismograph, etc. during the development of the 
shaft or slope until it intersects the coal seam to be mined.

22. CSR 199-1-3.5 Blast Record

    Subdivision 3.5.a is amended to require that the blasting log book 
be on forms formatted in a manner prescribed by the Secretary. We find 
the proposed amendment at Subdivision 3.5.a to be no less effective 
than the Federal blasting requirements at 30 CFR 816.68 and 817.68, and 
it is approved.
    Subdivision 3.5.c is amended to provide that the blasting log must 
contain, at a minimum, but not limited to, the following information:
     Subparagraph 3.5.c.1 is amended to require the name of the 
company conducting blasting;
     Subparagraph 3.5.c.2 is amended to require the Article 3 
permit number and shot number;
     Subparagraph 3.5.c.4 is amended to require the 
identification of nearest protected structure and nearest other 
structure not owned or leased by the operator, and indicate the 
direction and distance, in feet, to both such structures;
     Subparagraph 3.5.c.5 is amended to require estimated wind 
direction and speed;
     Subparagraph 3.5.c.6 is amended by adding a proviso to 
identify material blasted, including rock type and description of 
conditions;
     Subparagraph 3.5.c.9 is amended to require a description 
of different quantities of explosives used;
     Subparagraph 3.5.c.14 is amended to require type and 
length of decking;
     Subparagraph 3.5.c.15 is amended to require a description 
of use of blasting mats or other protective measures used;
     Subparagraph 3.5.c.16 is amended to require the quantities 
of delay detonators used;
     Subparagraph 3.5.c.17 is amended by adding the words 
``when required'' in relation to seismograph records and air blast 
records;
     Subparagraph 3.5.c.17.A is amended to require that 
seismograph and air blast readings include trigger levels, frequency in 
Hz, and full waveform readings, all of which must be attached to the 
blast log;
     Subparagraph 3.5.c.17.B is amended to require the name of 
person who installed the seismograph, as well as the name of person 
taking the readings;
     Subparagraph 3.5.c.17.D is amended to require 
certification of annual calibration in addition to, rather than in lieu 
of, submitting the type of instrument, its sensitivity and calibration 
signal;
     Subparagraph 3.5.c.18 is amended to require that the shot 
location be identified with use of blasting grids as found on the blast 
map, GPS, or other methods as defined by the approved blast plan;
     Subparagraph 3.5.c.19 is amended by deleting the 
requirement for a sketch of the delay pattern for all decks and to 
require a detailed sketch of delay pattern, including the detonation 
timing for each hole or deck in the entire blast pattern, borehole 
loading configuration, north arrow, distance and directions to 
structures; and
     Subparagraph 3.5.c.20 is amended to require the reasons 
and conditions to be noted in the blasting log for misfires, any 
unusual event, or violation of the blast plan.
    We find that all of the proposed State revisions at Subdivision 
3.5.c regarding information to be contained in a blasting log, are no 
less effective than the Federal blast record requirements at 30 CFR 
816.68 and 817.68, and the revisions are approved.

23. CSR 199-1-3.6 Blasting Procedures

    Subparagraph 3.6.b.2 is amended to require that all approaches to 
the blast area remain guarded until the blaster signals the ``all 
clear.'' We find that the proposed revision to the State's safety 
precaution requirements at Subparagraph 3.6.b.2 is no less effective 
than the Federal requirements at 30 CFR 816.66 and 817.66, and it is 
approved.
    Subparagraph 3.6.c.1 regarding airblast limits is amended to 
provide that the maximum level in Hz be no more than -3dB. In addition, 
Footnote 1 was added to clarify that airblast is a flat response from 4 
to 125 Hz range; and at 2 Hz airblast, the microphone can have an error 
of no more than -3dB. Footnote 2 was added to clarify that the use of 
the frequency limits of 0.1 Hz or lower--flat response or C-weighted--
slow response requires the Secretary's approval.
    The +/-3 dB requirement in the Federal rules at 30 CFR 
816.67(b)(1)(i) and 817.67(b)(1)(i) defines the frequency response 
limit of the measuring instruments and not the accuracy of the 
measuring system. It is not a tolerance allowed to the operator in 
meeting the standard, but rather an instrument manufacturing standard. 
For example, an instrument with a 2 Hz lower frequency range would be 
allowed to have no more or less than a 3 dB variance from the actual 
sound level present at 2 Hz to define the lower range of the system. In 
other words, if the

[[Page 27148]]

microphone input sound was 133 dB at 2 Hz, the reported value could be 
between 130 and 136 dB and the instrument could be specified to have a 
lower frequency response of 2 Hz. This value, either high or low, is 
then digitally adjusted to the actual sound level present (133 dB). 
Furthermore, all microphones that are part of blasting seismographs 
manufactured today are in compliance with the ISEE Performance 
Specifications for Blasting Seismographs. This standard defines the 
lower response frequency of the system as being 3 dB down (-3 dB) at 2 
Hz. No blasting seismographs currently manufactured define the lower 
frequency response with the +3 dB criteria. The State specifies that 
the lower frequency response be down 3 dB (-3dB) only. By specifying 
the low end value only, the State rule is no less effective than the 
Federal rule because the specification for defining the lower response 
range is within the range specified by OSMRE, and it is within the 
current industry standard. Therefore, we find that the proposed 
revisions, including Footnotes 1 and 2, at Subparagraph 3.6.c.1 are not 
inconsistent with the Federal airblast requirements at 30 CFR 
816,67(b)(1)(i) and 817.67(b)(1)(i), and the revisions are approved.
    Subparagraph 3.6.c.3 is amended to require that all seismic 
monitoring follow the ISEE Field Practice Guidelines for Blasting 
Seismographs, unless otherwise approved in the blasting plan. We find 
that the proposed State revision regarding seismic/airblast monitoring 
is no less effective than the Federal blasting requirements at 30 CFR 
816.67(b)(2) and 817.67(b)(2), and it is approved.
    Subdivision 3.6.g is amended to provide that blasting within five 
hundred (500) feet of an underground mine not totally abandoned 
requires the concurrence of the Secretary and the West Virginia Office 
of Miners Health Safety and Training, in addition to the operator of 
the underground mine and the Mine Safety and Health Administration. We 
find the proposed State revision at Subdivision 3.6.g renders that 
provision substantively identical to, and, therefore, no less effective 
than, the Federal requirements at 30 CFR 780.13(c) regarding blasting 
near underground mines. Thus, it is approved.
    However, WVDEP is proposing to delete existing provisions in its 
Surface Mining Reclamation Regulations at CSR 38-2-6.5.h that mirror 
those in CSR 199-1-3.6.g, but which, in addition, also provide: ``The 
Secretary may prohibit blasting on specific areas where it is deemed 
necessary for the protection of public or private property or the 
general welfare and safety of the public.'' The Federal requirement at 
30 CFR 816.64(a) provides that the regulatory authority may limit the 
area covered, timing, and sequence of blasting if the regulatory 
authority determines that such limitations are necessary and reasonable 
in order to protect the public health and safety or welfare. Because of 
the Secretary's inability to limit blasting under its proposed Surface 
Mining Blasting Rule, we find the proposed deletion of CSR 38-2-6.5.h 
would render the State program less effective than the Federal blasting 
requirements at 30 CFR 816.61 through 816.68 and 817.61 through 817.68, 
and, in particular, 30 CFR 816.64(a). Therefore, as stated above in 
Finding No. 10, we are not approving the State's proposed deletion of 
existing Subdivision 6.5.h in its Surface Mining Reclamation Rules.
    Subdivision 3.6.i is amended to require that all seismic monitoring 
follow the ISEE Field Practice Guidelines for Blasting Seismographs, 
unless otherwise approved in the blasting plan. We find that the 
proposed State revision regarding seismic monitoring is no less 
effective than the Federal blasting requirements at 30 CFR 816.67(d)(2) 
and 817.67(d)(2), and it is approved.
    Subdivision 3.6.l is amended by adding a reference to 3.6.i in 
relation to the maximum airblast and ground vibration standards that do 
not apply to structures owned by the permittee and leased or not leased 
to another person. We find that the proposed State revision regarding 
airblast and ground vibration standards at Subdivision 3.6.l is not 
inconsistent with the Federal blasting requirements at 30 CFR 816.67(e) 
and 817.67(e), and it is approved.

24. CSR 199-1-3.7 Blasting Control for ``Other Structures''

    Subdivision 3.7.a is amended by adding language to require that all 
``other structures'' in the vicinity of the blasting area be protected 
from damage by the limits specified in paragraph 3.6.c.1 subdivisions 
3.6.h. and 3.6.i. of this rule, unless waived in total or in part by 
the owner of the structure. In addition, the waiver of the protective 
[limits] sic may be accomplished by the establishment of a maximum 
allowable limit on ground vibration or air blast limits or both for the 
structure in the written waiver agreement between the operator and the 
structure owner. The waiver may be presented at the time of application 
in the blasting plan or provided at a later date and made available for 
review and approval by the Secretary. All waivers must be acquired 
before any blasts may be conducted [as] sic designed on that waiver. 
Language requiring that the operator specify the waiver in the blasting 
plan and that the Secretary approve the waiver is being deleted. In 
addition, language providing for alternative maximum allowable limits 
is being deleted. Given the proposed revisions, the existing language 
is redundant and appears unnecessary, so it is being deleted by the 
State.
    The Federal regulations specifically set airblast limits for 
protected structures outside the permit area but not for ``other 
structures.'' In addition, they require, at 30 CFR 816.67(a) and 
817.67(a), that blasting be conducted so as to prevent damage to public 
or private property outside the permit area. However, the Federal 
regulations at 30 CFR 816.67(d) and 817.67(d) require that maximum 
ground vibration limits be established for both protected and ``other 
structures.'' Because the proposed State revision requires, with 
respect to ``other structures,'' compliance with the airblast and 
ground vibration limits for protected structures, the establishment of 
alternative maximum allowable ground vibration or airblast limits, or 
both where the owner waives those limits, we find the revisions to 
Subdivision 3.7.a. to be no less effective than the Federal blasting 
requirements at 30 CFR 816.67(d) and 817.67(d), and the revisions are 
approved. However, to minimize confusion, we recommend that the State 
correct the two apparent typographical errors identified above in 
brackets.

25. CSR 199-1-3.8 Pre-Blast Surveys

    The State's statutory provisions at W. Va. Code 22-3-13a currently 
requires that an operator or his designee must make, in writing, 
notifications to all owners and occupants of man-made dwellings or 
structures that the operator or his designee will perform pre-blast 
surveys. To ensure consistency with the statutory requirement, WVDEP is 
proposing to amend Subdivision 3.8. by adding language to provide that 
at least thirty days prior to commencing blasting, an operator or his 
designee must notify in writing, all owners and occupants of manmade 
dwellings or structures that the operator or the operator's designee 
will perform pre-blast surveys. In addition, language is added to 
require that attention be given to documenting and establishing the 
pre-blasting condition of wells and other water systems, and deleting 
the word ``special'' from the requirement that ``special'' attention be 
given to the

[[Page 27149]]

pre-blasting condition of wells and other water systems. We find that 
the State's proposed pre-blast survey requirements at Subdivision 3.8.a 
are no less stringent than and no less effective than the Federal pre-
blast survey requirements at SMCRA section 515(b)(15)(E) and 30 CFR 
816.62(a) and 817.62(a), respectively, and the proposed revisions 
areapproved.
    Subdivision 3.8.b is amended by adding language to require: 
``Surveys requested more than ten (10) days before the planned 
initiation of the blasting must be completed and submitted to the 
Secretary by the operator before the initiation of blasting.'' We find 
that the proposed pre-blast survey requirement at Subdivision 3.8.b is 
substantively identical to, and therefore, no less effective than, the 
Federal pre-blasting survey requirements at 30 CFR 816.62(e) and 
817.62(e), and it is approved.

26. CSR 199-1-3.9 Pre-Blast Surveyors

    Subdivision 3.9.a is amended to require that, at a minimum, 
individuals applying as a pre-blast surveyor must possess a high school 
diploma and have a combination of at least two (2) of the following:

    3.9.a.1 experience in conducting pre-blast surveys, or
    3.9.a.2 technical training in a construction or engineering 
related field, or
    3.9.a.3 other related training deemed equivalent by the 
Secretary.

    In addition, language was added to clarify that all applicants must 
complete the pre-blast surveyor training provided by the Secretary 
prior to approval to conduct pre-blast surveys. The Secretary may 
establish a fee for approval and training of pre-blast surveyors. 
Language is being deleted that provides that experience working as a 
pre-blast surveyor may be acceptable in lieu of the education 
requirement.
    Subdivision 3.9.c is amended to clarify that every three (3) years 
after meeting initial qualifications for performing pre-blast surveys, 
those individuals that have met the requirements of Subdivision 3.9.a. 
of this rule must submit a written demonstration of qualifications of 
ongoing experience performing pre-blast surveys. In addition, language 
was added to provide that those individuals who have no ongoing 
experience must attend the training required in 3.9.a., and all 
applicants for re-approval must attend a minimum of four (4) hours 
continuing education training in a subject area relative to knowledge 
required for conducting pre-blast surveys. Furthermore, the Secretary 
must approve the training programs.
    Subdivision 3.9.d is amended by adding language to require that 
individuals who assist in the collection of information for pre-blast 
surveys must complete, or be registered for, the pre-blast surveyor 
training provided by the Secretary in 3.9.a. Those registered to attend 
the next available training on the pre-blast survey requirements may 
assist in the collection of information for a period of no more than 
three (3) months if under the direct supervision of an approved pre-
blast surveyor. The Secretary must maintain a list of all those 
individuals who have completed the pre-blast survey requirement 
training. Subdivision 3.9.d is also amended by deleting language that 
provides that an individual, who is not an approved pre-blast surveyor, 
may conduct pre-blast surveys-working as a pre-blast surveyor-in-
training, only if he or she has registered to attend pre-blast surveyor 
training at the next available opportunity. Pre-blast surveyors-in-
training may conduct pre-blast surveys only if he or she is conducting 
the survey under the direct supervision of an approved pre-blast 
surveyor. The approved pre-blast surveyor must co-sign any survey 
conducted by a pre-blast surveyor-in-training. Individuals may work as 
pre-blast surveyors-in-training for a period of no more than three 
months, prior to becoming approved pre-blast surveyors.
    Subdivision 3.9.e is amended to provide that the Secretary may 
disqualify an approved pre-blast surveyor and remove the person from 
the list of approved pre-blast surveyors, if the person allows surveys 
to be submitted that do not meet the requirements of W. Va. Code 22-3-
13a and subsection 3.8 of this rule. In addition, language was added to 
provide that any person who is disqualified may appeal to the 
Secretary, and if not resolved, to the Surface Mine Board.
    There are no direct Federal counterparts to these requirements. 
However, we find that the proposed revisions to the State's pre-blast 
surveyor requirements at Subdivisions 3.9.a, 3.9.c, 3.9.d, and 3.9.e 
are not inconsistent with SMCRA section 515(b)(15) concerning the use 
of explosives, the Federal regulations at 30 CFR 816.61, 816.62, 
817.61, and 817.62 concerning use of explosives and pre-blasting 
surveys, and 30 CFR 850.13, 850.14, and 850.15 concerning training, 
examination, and certification of blasters. Therefore, they are 
approved.

27. CSR 199-1-3.10 Pre-Blast Survey Review

    Subdivision 3.10.f is amended by adding language to provide that 
all persons employed by the Secretary, whose duties include review of 
pre-blast surveys and training of pre-blast surveyors, must meet the 
requirements for pre-blast surveyors as set forth in section 3.9. This 
provision is to ensure that State employees or contractors who review 
pre-blast surveys or train pre-blast surveyors have the same training, 
qualifications, and experience as individuals who actually perform pre-
blast surveys within the State.
    The Federal rules lack specific provisions concerning individuals 
who review pre-blast surveys or train pre-blast surveyors. However, we 
find that the proposed addition of Subdivision 3.10.f. is not 
inconsistent with SMCRA section 515(b)(15) concerning the use of 
explosives, the Federal regulations at 30 CFR 816.61, 816.62, 817.61, 
and 817.62 concerning use of explosives and pre-blasting surveys, and 
30 CFR 850.13, 850.14, and 850.15 concerning training, examination, and 
certification of blasters. Therefore, it is approved.
    We must also note that our previous concern regarding the 
confidentiality provision at Subdivision 3.10.d which limits the use of 
pre-blast surveys for only evaluating blasting claims is still valid, 
and the approval of that requirement is still limited to the extent 
described in our December 10, 2003, Federal Register notice (68 FR 
68731). We approved this provision with the understanding that the 
phrase, ``only used for evaluating damage claims'' does not preclude 
the use of pre-blast surveys to support the issuance of notices of 
violations, cessation orders, civil penalties or other forms of 
alternative enforcement action under WVSCMRA and its implementing 
regulations to achieve the repair of blasting damage and thus resolve a 
damage claim.

28. CSR 199-1-4.1 Blaster Certification Requirements

    Subdivision 4.1.a is amended to require that each person acting in 
the capacity of a blaster and responsible for the blasting operation be 
certified by the Secretary.
    Subdivision 4.1.b is amended to require that each applicant for 
certification be a minimum of twenty-one (21) years old. In addition, 
new language was added to provide that ``[a]pplicants who have blasting 
experience prior to the last three years, with documentation, may be 
considered by the Secretary on a case-by-case basis as qualifying 
experience for initial certification and re-certification; provided the 
[retraining] requirements of 4.6.c. apply.''

[[Page 27150]]

    Subdivision 4.1.c is amended to state that the application for 
certification be on forms prescribed by the Secretary.
    There are no direct Federal counterparts to these requirements. 
However, we find that the proposed revisions to the State's blaster 
certification requirements at Subdivisions 4.1.a, 4.1.b, and 4.1.c are 
not inconsistent with the Federal blaster certification requirements at 
30 CFR 816.61(c), 817.61(c), 850.12(b), and 850.14(a)(2), and the 
revisions are approved.

29. CSR 199-1-4.2 Training

    Subsection 4.2 is amended by adding language to provide that the 
training program will consist of the West Virginia Surface Mine 
Blasters Self-Study Guide Course and a classroom review of the self-
study guide course. Completion of the classroom review part of the 
training program may not be required for first time applicants. 
Furthermore, applicants for certification or applicants for re-
certification, who cannot document the experience requirements 
specified in Subdivision 4.1.b. of this rule, must complete the West 
Virginia Surface Mine Blasters Self-Study Guide.
    Subdivision 4.2.a is amended to provide that, prior to 
certification, all applicants, not just those who choose self-study, 
attend a two (2) hour Blaster's Responsibilities training session 
addressing certified blasters' responsibilities and the disciplinary 
procedures contained in subsections 4.9 and 4.10 of this rule.
    We find that the proposed State revisions to Subsection 4.2 and 
Subdivision 4.2.a are no less effective than the Federal blaster 
certification requirements at 30 CFR 850.12(b) and 850.13(a), and the 
revisions are approved.

30. CSR 199-1-4.3 Examination

    Subdivision 4.3.b is amended to clarify that the examination for 
certified blaster consists of three parts.
    Subdivision 4.3.d is amended to state that any person who fails to 
pass any part of the exam on the second attempt or every other 
subsequent attempt must certify that he/she has taken or retaken the 
classroom review training program described in subsection 4.2 of this 
rule prior to applying for another examination.
    There are no direct Federal counterparts to these requirements. 
However, we find that proposed State revisions to Subdivisions 4.3.b 
and 4.3.d are not inconsistent with the Federal certified blaster 
examination requirements at 30 CFR 850.14, and the revisions are 
approved.

31. CSR 199-1-4.5 Conditions or Practices Prohibiting Certification

    Subdivision 4.5.d is amended by adding language to provide that 
persons who have had their blasters certification suspended or revoked 
in any other state may be required to show cause as to why they should 
be considered for certification. As specifically written, the language 
does not comport directly with our interpretation of the State's intent 
when combined with the opening sentence of Subsection 4.5. However, in 
an email conversation with the WVDEP (Administrative Record Number WV-
1514), the State indicated the language should read: ``Has had their 
blaster's certification suspended or revoked in any other state. The 
blasters may be required to show cause as to why they should be 
considered for certification.'' Basically, West Virginia will not 
certify or re-certify anyone who has had their certification in another 
state suspended or revoked without them showing cause why West Virginia 
should certify them.
    Therefore, while there is no specific Federal counterpart to this 
State requirement and with this understanding in mind, we find that the 
proposed revision to Subdivision 4.5.d is not inconsistent with the 
Federal requirements concerning blaster certification at 30 CFR 
850.15(b), and it is approved. However, we recommend that the WVDEP 
revise the language in Subdivision 4.5.d to match our understanding as 
provided in the conversation record mentioned above.

32. CSR 199-1-4.6 Retraining

    Subdivision 4.6.c is amended to clarify that an applicant for 
recertification who does not meet the experience requirements of 
Subdivision 4.1.b of this rule must take the training course defined in 
section 4.2.
    While there is no direct Federal counterpart to this requirement, 
we find that the proposed revision to Subdivision 4.6.c is not 
inconsistent with the Federal blaster training requirements at 30 CFR 
850.13(a) and the Federal blaster recertification requirements at 30 
CFR 850.15(c), and it is approved.

33. CSR 199-1-4.7 Blaster's Certificate

    Subdivision 4.7.d is amended by adding language to clarify that a 
certified blaster must not take any instruction or direction on blast 
design, explosives loading, handling, transportation and detonation 
from a person not holding a West Virginia blaster's certificate, if 
such instruction or direction may result in an unlawful act, or an 
improper or unlawful action that may result in unlawful effects of a 
blast. In addition, a person not holding a West Virginia blaster's 
certification who requires a certified blaster to take such action may 
be prosecuted under W. Va. Code 22-3-17(c) or (i). While these 
revisions have no direct Federal counterparts, we find that they are 
not inconsistent with Federal requirements concerning blaster 
certification at 30 CFR 850.15, and the revisions are approved.

34. CSR 199-1-4.9.a Suspension and Revocation

    Subparagraph 4.9.a.2 is amended by adding language relating to 
Imminent Harm Suspension.
    Subparagraph 4.9.a.5 is amended by adding language to provide that 
any blaster receiving a suspension or revocation may appeal the 
decision to the Secretary and to the Surface Mine Board.
    While these revisions have no direct Federal counterparts, we find 
that they are not inconsistent with the Federal requirements concerning 
the suspension and revocation of a blaster's certification at 30 CFR 
850.15(b), and the revisions are approved.

35. CSR 199-1-4.13 Blasting Crew

    Subsection 4.13 is amended to provide that persons who are not 
certified and who are assigned to a blasting crew, or assist in the use 
of explosives, must receive directions and on-the-job training from the 
certified blaster in the technical aspects of blasting operations, 
including applicable state and Federal laws governing the storage, 
transportation, and proper use of explosives. We find that the proposed 
State revision at Subsection 4.13 is no less effective than the Federal 
blaster training requirements at 30 CFR 850.13(a), and it is approved.

36. CSR 199-1-4.14 Reciprocity With Other States

    Subsection 4.14 is amended by adding language to clarify that 
reciprocity is a one-time only process. New language is also added to 
clarify: ``Any blaster who has been issued a certification through 
reciprocity and fails to meet the recertification requirements will be 
required to reexamine and may be required to provide refresher training 
documentation, as per Subdivision [section] 4.6.a of this rule.''
    There is no Federal counterpart to the proposed State revision. 
However, all State coal mining regulatory programs are subject to the 
same minimum

[[Page 27151]]

Federal blasting standards. Therefore, we find that the proposed State 
revision at Subsection 4.14 regarding reciprocity with other States is 
not inconsistent with the Federal requirements at section 719 of SMCRA 
and 30 CFR part 850 regarding the training, examination, and 
certification of blasters, and it is approved.

37. CSR 199-1-5.2 Filing a Blasting Damage Claim

    Subdivision 5.2.a is amended to clarify that only a certified 
inspector will be assigned to conduct a field investigation to 
determine the initial merit of the damage claim and what such an 
investigation by a certified inspector is to include.
    There is no Federal counterpart to the proposed State revision. 
However, we find that the revised requirement at Subdivision 5.2.a is 
not inconsistent with the Federal blasting requirements at 30 CFR 
816.61 through 816.68 and 817.61 through 817.68, and it is approved.
    Subparagraph 5.2.a.3 is amended to require that the inspector will 
make a written report on the investigation that describes the nature 
and extent of the alleged damage, taking into consideration the 
condition of the structure, observed defects, or pre-existing damage 
that is accurately indicated on a pre-blast survey, conditions of the 
structure that existed where there has been no blasting conducted by 
the operator, or other reliable indicators that the alleged damage 
actually pre-dated the blasting by the operator.
    In addition, language was deleted and added to clarify that the 
inspector will make one of the following initial determinations and 
notify the claims administrator, make a recommendation on the merit of 
the claim, and supply such information that the claims administrator 
needs to sufficiently document the claim:

    5.2.a.3.A. There is merit that blasting caused the alleged 
damage; or
    5.2.a.3.B. There is no merit that blasting caused the alleged 
damage.
    5.2.a.3.C. The determination of merit as to whether blasting 
caused or did not cause the alleged damage cannot be made.

    The former Subparagraph 5.2.a.5 has been moved to Subparagraph 
5.2.a.6 and is also amended to clarify that the determination as to the 
merit of a claim is to be made by the inspector.
    Under the revised procedures, a certified inspector will 
investigate any claim alleging blasting damage; make an initial 
determination and notify the claims administrator; make a 
recommendation on the merit of the claim; and provide the claims 
administrator information to sufficiently document the claim. As 
revised, the inspector will initially determine whether or not there is 
merit that blasting caused the alleged damage. In addition, 
Subparagraph 5.2.a.3.C allows for the possibility that the 
determination of merit as to whether blasting caused or did not cause 
the alleged damage cannot be made. As proposed, a certified inspector 
will have three options to choose from with respect to the merit of a 
claim.
    We are approving these provisions with the understanding that only 
the certified inspector will make the determination regarding the fact 
of violation and the claims administrator/adjuster is primarily 
responsible for determining the award amount due to the blasting 
damage. In situations where the determination of merit cannot be made, 
it is the adjuster's responsibility under Subparagraph 5.4.e to make a 
preliminary determination of merit and the claims administrator's 
responsibility under Subparagraph 5.3.d to make a final determination 
on the merit and loss value of the claim. Regardless, in all instances, 
it is the certified inspector's responsibility to make the 
determination regarding the fact of violation and to take appropriate 
enforcement action when necessary. In an email communication with OSMRE 
(Administrative Record Number WV-1514), the State confirmed that: ``In 
cases where damage is found to exist, it is the inspector's duty to 
write the violation. The Secretary will still be the one who ultimately 
decides if damage occurs based on the information provided when the 
claims administrator or the adjuster is involved.''
    Based upon this understanding, we find that the State's revised 
blasting damage claims procedures at Subparagraphs 5.2.a.3 and 5.2.a.6. 
are consistent with the Federal inspection requirements at SMCRA 
section 517 and 30 CFR part 842 and are the same as or similar to the 
Federal enforcement and penalties procedures at SMCRA sections 518 and 
521 and 30 CFR parts 840, 845, 846, and 847. Therefore, these revisions 
are approved.
    The provisions formerly contained at Subparagraphs 5.2.a.3.C and 
5.2.a.4. have been moved to Subparagraphs 5.2.a.4 and 5.2.a.5, 
respectively. In these revised provisions, the word ``Office'' has been 
changed to ``Secretary,'' and cross-references to other provisions have 
been amended appropriately.
    We initially approved these provisions on December 10, 2003, with 
the understanding that, if the property owner declines to participate 
in the claims process, the State could conclude its involvement in that 
process, but the WVDEP would not be precluded from issuing a blasting-
related notice of violation, cessation order, or taking other 
enforcement actions where blasting-related violations that cause 
property damage have occurred (68 FR 68735). We continue to maintain 
that the conclusion of the State's involvement, as provided by revised 
Subparagraphs 5.2.a.4.A and 5.2.a.5, is limited to the blasting claims 
process and not the State's enforcement process. Therefore, it is with 
this understanding that we are able to find that the revised State 
provisions at Subparagraphs 5.2.a.4.A and 5.2.a.5 regarding the 
blasting damage claims process are not inconsistent with SMCRA and the 
Federal regulations, and the revisions are approved.

38. CSR 199-1-6 Arbitration for Blasting Damage Claims

    Subsection 6.1, relating to the listing of arbitrators, is amended 
by adding language to provide that once a year the Environmental 
Advocate, and industry representatives (selected by the West Virginia 
Coal Association, Inc.) may move to strike up to twenty-five percent 
(25%) of the list, with cause.
    In addition, Subsection 6.4 is amended by adding language to 
require the parties to arbitration to choose an arbitrator within 
fifteen (15) days of receipt of the notice by the parties.
    There are no Federal counterparts to the proposed State revisions. 
However, we find that the proposed revisions at Subsections 6.1 and 6.4 
regarding the State's arbitration process are not inconsistent with the 
Federal blasting requirements at section 515(b)(15) of SMCRA and 30 CFR 
816.61 through 816.68 and 817.61 through 817.68, and the revisions are 
approved.

39. CSR 199-1-7 Explosive Material Fees

    Subsection 7.2 is amended by adding language to require copies of 
blast logs be submitted as necessary to verify the accuracy of the 
report and explosive material fee calculation made by operators.
    Subsection 7.3 is also amended by adding language to provide that, 
for the purpose of this section, detonators, caps, detonating cords, 
and initiation systems are exempt from the calculation for explosive 
material fees. However, the Secretary may require reporting on the use 
of these products.
    There are no Federal counterparts to the proposed State revisions 
regarding the explosive material fee. However, we find that the revised 
provisions at

[[Page 27152]]

Subsections 7.2 and 7.3 are not inconsistent with the Federal blasting 
requirements at sections 515(b)(15) and 719 of SMCRA, 30 CFR 840.12(b) 
and 30 CFR 816.61 through 816.68 and 817.61 through 817.68, and the 
revisions are approved.
    Pursuant to Committee Substitute for Senate Bill 751, West Virginia 
proposes the following amendments to Section 22-3-11 of the WVSCMRA:

40. WVSCMRA 22-3-11 Bonds; Amount and Method of Bonding; Bonding 
Requirements; Special Reclamation Tax and Funds; Prohibited Acts; 
Period of Bond Liability.

    This amendment revises Section 22-3-11 of the WVSCMRA relating to 
the State's alternative bonding system. As stated in the WVDEP's April 
8, 2008, letter transmitting the program amendment, the revisions 
included in Committee Substitute for Senate Bill 751 related 
``generally to the special reclamation tax by establishing the Special 
Reclamation Water Trust Fund; continuing and reimposing a tax on clean 
coal mined for deposit into both funds; requiring the secretary to look 
at alternative programs; and authorizing Secretary to promulgate 
legislative rules implementing the alternative programs.''
    The provisions relating to the creation of the Special Reclamation 
Water Trust Fund and the reinstatement and increase in the special 
reclamation tax to 7.4 cents per ton as contained in subsections 22-3-
11(g) and (h)(1), respectively, were approved by OSMRE on an interim 
basis in a separate Federal Register notice dated June 16, 2008 (73 FR 
33884-33888), and public comments were later solicited on those 
provisions. Pursuant to the Administrative Procedure Act at 5 U.S.C. 
553(b)(3)(B), we found that good cause existed to approve the revisions 
to subsections 22-3-11(g) and (h)(1) of the WVSCMRA on an interim basis 
because requiring notice and the opportunity for comment then would 
have delayed the start of the collection of the increased special 
reclamation tax. Enrolled Committee Substitute for Senate Bill 751 
became effective on July 1, 2008, and the public interest in the 
accomplishment of prompt and thorough reclamation of bond forfeiture 
sites, including water treatment of discharges there from, would have 
been adversely affected if the 7.4 cents per ton special reclamation 
tax had not been collected on and after that effective date. In any 
event, the public still had an opportunity to comment on the 
reinstatement and increase in the special reclamation tax and on the 
creation of the Special Reclamation Water Trust Fund prior to this 
decision.
    Subsection 22-3-11(a) of the WVSCMRA is amended by adding language 
to provide that the penal amount of the bond will be for each acre or 
fraction of an acre. Formerly, the provision stated: ``[T]he penal 
amount of the bond must be for each acre or fraction `thereof.' '' The 
deletion of the word ``thereof'' and the addition of the words ``of an 
acre'' do not change the meaning of the provision, so our approval of 
the change is not necessary.
    Subsection 22-3-11(g) of the WVSCMRA is amended by adding language 
to provide that the Special Reclamation Fund previously created is 
continued. In addition, the Special Reclamation Water Trust Fund is 
created within the State Treasury into and from which moneys will be 
paid for the purpose of assuring a reliable source of capital to 
reclaim and restore water treatment systems on forfeited sites. The 
moneys accrued in both funds, any interest earned thereon and yield 
from investments by the State Treasurer or West Virginia Investment 
Management Board are reserved solely and exclusively for the purposes 
set forth in WVSCMRA 22-3-11 and 17. The funds will be administered by 
the Secretary who is authorized to expend the moneys in both funds for 
the reclamation and rehabilitation of lands which were subjected to 
permitted surface mining operations and abandoned after August 3, 1977, 
where the amount of the bond posted and forfeited on the land is less 
than the actual cost of reclamation, and where the land is not eligible 
for abandoned mine land reclamation funds under W.Va. Code 22-2. The 
Secretary will develop a long-range planning process for selection and 
prioritization of sites to be reclaimed so as to avoid inordinate 
short-term obligations of the assets in both funds of such magnitude 
that the solvency of either is jeopardized. The Secretary may use both 
funds for the purpose of designing, constructing, and maintaining water 
treatment systems when they are required for a complete reclamation of 
the affected lands described in Subsection 11(g). The Secretary may 
also expend an amount not to exceed ten percent of the total annual 
assets in both funds to implement and administer the provisions of this 
article and, as they apply to the Surface Mine Board, W.Va. Code 22B-1 
and 4.
    Previously, the expenditure for water treatment systems was limited 
to fees collected under the Special Reclamation Fund. Under the 
proposed revisions, funds from both the Special Reclamation Fund and 
the Special Reclamation Water Trust Fund can be used to design, 
construct, and maintain water treatment systems on bond forfeiture 
sites. We find that the creation of the Special Reclamation Water Trust 
Fund into which moneys will be deposited for the purpose of designing, 
constructing, and maintaining water treatment systems on bond 
forfeiture sites when necessary, and for the purpose of completing 
other reclamation of bond forfeiture sites within the State affected by 
mining is no less stringent than the Federal alternative bonding 
requirement at section 509(c) of SMCRA and no less effective than the 
Federal alternative bonding requirements at 30 CFR 800.11(e), and the 
revisions are approved on a permanent basis.
    Subsection 22-3-11(h)(1) of the WVSCMRA is amended by adding 
language to provide that, ``For tax periods commencing on and after 
July 1, 2008, every person conducting coal surface mining must remit a 
special reclamation tax as follows: (A) For the initial period of 
twelve months, ending June 30, 2009, 7.4 cents per ton of clean coal 
mined, the proceeds of which will be allocated by the Secretary for 
deposit in the Special Reclamation Fund and the Special Reclamation 
Water Trust Fund; (B) an additional 7 cents per ton of clean coal 
mined, the proceeds of which will be deposited in the Special 
Reclamation Fund. The tax will be levied upon each ton of clean coal 
severed or clean coal obtained from a refuse pile and slurry pond 
recovery or clean coal from other mining methods extracting a 
combination of coal and waste material as part of a fuel supply.'' 
While Senate Bill 751 stated that the Council was to review and make 
recommendations on needed adjustments to the Legislature, it also 
contained a proviso that the tax could ``not be reduced until the 
Special Reclamation Fund and Special Reclamation Water Trust Fund have 
sufficient moneys to meet the reclamation responsibilities of the State 
established in this section.'' See WVSCMRA Subsection (h)(1)(B).
    Under the proposed changes, the State reinstated and increased the 
initial tax from 7 cents to 7.4 cents per ton of clean coal mined. The 
tax was extended by the Legislature and approved by the Governor. The 
proceeds from this tax are deposited in both the Special Reclamation 
Fund and the Special Reclamation Water Trust Fund. Given that OSMRE 
approved these proposed provisions on an interim bases on June 16, 
2009, both the Special Reclamation Fund and the Special Reclamation 
Trust Fund are still in effect. See 73 FR 33884.

[[Page 27153]]

The WVSCMRA also provides for an additional seven cents per ton of 
clean coal mined to be deposited into the Special Reclamation fund, 
which was also to be reviewed and, if necessary, adjusted annually by 
the Legislature upon the recommendation of the Special Reclamation Fund 
Advisory Council.
    Because we find the proposed State revisions at subsection 22-3-
11(h)(1) to be no less stringent than the Federal alternative bonding 
requirements at section 509(c) of SMCRA and no less effective than the 
Federal alternative bonding requirements at 30 CFR 800.11(e), they are 
approved on a permanent basis.
    Subsection 22-3-11(h)(2) of the WVSCMRA is amended to clarify that 
in managing the Special Reclamation Program, the Secretary will: (A) 
pursue cost-effective alternative water treatment strategies; and (B) 
conduct formal actuarial studies every two years and conduct informal 
reviews annually on both the Special Reclamation Fund and Special 
Reclamation Water Trust Fund.
    Under the proposed changes, both the Special Reclamation Fund and 
the Special Reclamation Water Trust Fund will be reviewed informally on 
an annual basis and actuarial studies will be done every two years. The 
proposed revisions are in keeping with the sound management of an 
alternative bonding system. In addition, we find that the proposed 
revisions at subsection 22-3-11(h)(2) are no less stringent than the 
Federal alternative bonding requirements at section 509(c) of SMCRA and 
no less effective than the Federal alternative bonding requirements at 
30 CFR 800.11(e), and the revisions are approved on a permanent basis.
    Subsection 22-3-11(h)(3) of the WVSCMRA is amended to delete 
obsolete language relating to tasks that were to be completed by the 
Secretary by December 31, 2005, and adding additional language.
    The proposed tasks outlined in this section are typical of the 
kinds of tasks that are undertaken under an alternative bonding system. 
Completion of these tasks should enable the State to make adjustments 
in its alternative bonding system that will ensure its long-term 
financial solvency. We find the proposed revisions at subsection 22-3-
11(h)(3) to be no less stringent than the Federal alternative bonding 
requirements at section 509(c) of SMCRA and no less effective than the 
Federal alternative bonding requirements at 30 CFR 800.11(e), and the 
revisions are approved on a permanent basis.
    As discussed below, Subsection 22-3-11(h)(4) of the WVSCMRA is 
amended.
    Once the tasks mentioned under subsection 22-3-11(h)(3) are 
completed, the Secretary is authorized under subsection 22-3-11(h)(4) 
to promulgate legislative rules to implement these alternative bonding 
mechanisms. It is important to note that, pursuant to 30 CFR 732.17(h), 
any rules pertaining to the State's alternative bonding system will 
have to be submitted to OSMRE for approval prior to implementation. As 
provided by 30 CFR 732.17(g), whenever changes to laws or regulations 
that make up an approved State program are proposed by a State, the 
State must immediately submit the changes to OSMRE as an amendment. No 
such change to laws or regulations can take effect for the purposes of 
a State program until approved as an amendment. Because we find the 
proposed revisions at subsection 22-3-11(h)(4) to be no less stringent 
than the Federal alternative bonding requirements at section 509(c) of 
SMCRA and no less effective than the Federal alternative bonding 
requirements at 30 CFR 800.11(e), the revisions are approved on a 
permanent basis.
    Subsection 22-3-11(l) of the WVSCMRA is amended by adding language 
to clarify that the Tax Commissioner will deposit the moneys collected 
with the Treasurer of the State of West Virginia to the credit of the 
Special Reclamation Fund and Special Reclamation Water Trust Fund. 
Existing language providing that the moneys in the fund are to be 
placed by the Treasurer in an interest-bearing account with the 
interest being returned to the fund on an annual basis is being 
deleted.
    As proposed, the State Tax Commissioner is required to deposit 
moneys collected with the State Treasurer to the credit of both the 
Special Reclamation Fund and Special Reclamation Water Trust Fund. In 
addition, language providing for interest being returned to the fund is 
being deleted. In keeping with the other requirements, it is necessary 
to allow moneys collected by the Tax Commissioner to be deposited with 
the Treasurer to the credit of the Special Reclamation Water Trust 
Fund. Because subsection 22-3-11(g) allows interest to be earned and 
credited to both the Special Reclamation Fund and Special Reclamation 
Water Trust Fund, the provision that is being deleted at subsection 22-
3-11(l) is redundant and no longer necessary. Therefore, we find the 
proposed revisions at subsection 22-3-11(l) to be no less stringent 
than the Federal alternative bonding requirements at section 509(c) of 
SMCRA and no less effective than the Federal alternative bonding 
requirements at 30 CFR 800.11(e), and the revisions are approved on a 
permanent basis.
    Subsection 22-3-11(m) of the WVSCMRA is amended by adding the words 
``in both funds'' at the end of the sentence. The provision now reads: 
``At the beginning of each quarter, the secretary must advise the State 
Tax Commissioner and the Governor of the assets, excluding payments, 
expenditures and liabilities, in both funds.''
    As proposed, the Secretary is required to notify the Tax 
Commissioner and the Governor of the assets and liabilities in both the 
Special Reclamation Fund and the Special Reclamation Water Trust Fund 
on a quarterly basis. Given the creation of the Special Reclamation 
Water Trust Fund, it was necessary to amend the State's financial 
reporting requirements. We find that the proposed State revisions at 
subsection 22-3-11(m) are no less stringent than the Federal 
alternative bonding requirements at section 509(c) of SMCRA and no less 
effective than the Federal alternative bonding requirements at 30 CFR 
800.11(e), and the revisions are approved on a permanent basis.

IV. Summary and Disposition of Comments

Public Comments

    On June 16, 2008, we published a Federal Register notice announcing 
our approval of the reinstatement and increase in the State's special 
reclamation tax and the creation of the Special Reclamation Water Trust 
Fund on an interim basis. We also asked for public comments on the 
proposed changes (Administrative Record Number WV-1507). On July 8, 
2008, we announced receipt and requested comments on the remaining 
portions of the proposed State amendment (Administrative Record Number 
WV-1508). One organization, the West Virginia Coal Association (WVCA), 
responded on August 7, 2008 (Administrative Record Number WV-1512).
    The WVCA stated that OSMRE's review of Senate Bill 751 (West 
Virginia's approved alternative bonding system (ABS), known as the 
Special Reclamation Fund (SRF)) should be confined to assuring that the 
provisions

[[Page 27154]]

of the legislation will not conflict with other provisions of Federal 
mining statutes and regulations. The WVCA said that any review beyond 
that, such as determination as to the adequacy of funding of the 
alternative bonding system (ABS), is improper as provisions of West 
Virginia's Special Reclamation Fund related to water treatment at bond 
forfeiture sites exceed the requirement of Federal mining statutes and 
regulations. The WVCA went on to say that any action on behalf of WVDEP 
regarding water treatment and the approved State ABS exceeds the 
requirements of SMCRA. These comments are available in their entirety 
at www.regulations.gov.
    For this specific amendment, we neither reviewed the financial 
adequacy of the State's ABS nor are we evaluating the solvency of the 
ABS with regard to 30 CFR 800.11(e). Our review, at this time, is 
limited to the reinstatement of the 7 cents per ton special reclamation 
tax, its increase to 7.4 cents per ton, and the creation of the Special 
Reclamation Water Trust Fund. Further information regarding our 
approval of this component of the amendment is included in Finding 40. 
Given the limited scope of our review, this comment is beyond the scope 
of this decision. However, we want to note that issues related to use 
of the ABS to treat mine drainage discharges from bond forfeiture 
sites, as well as the State's overall approach to funding its ABS, were 
addressed in OSMRE's initial approval of the State's ABS, as published 
in the Federal Register on December 28, 2001 (66 FR 67446-67451) and 
May 29, 2002 (67 FR 37610-37626).

Federal Agency Comments

    Pursuant to 30 CFR 732.17(h)(11)(i) and section 503(b) of SMCRA, on 
April 28, 2008, we requested comments on the amendment from various 
Federal agencies with an actual or potential interest in the West 
Virginia program (Administrative Record Number WV-1505A). Given the 
publication of our interim rule in the Federal Register on June 16, 
2008, regarding the State's reinstatement of its special reclamation 
tax and the creation of the Special Reclamation Water Trust Fund, we 
clarified in a letter dated May 14, 2008, that OSMRE would be 
interested in receiving comments on the proposed change to the State's 
special reclamation tax and any other revisions to the State's 
alternative bonding system as set forth in West Virginia Code 22-3-
11(h)(1) (Administrative Record Number WV-1509).
    We received comments from the U.S. Department of Energy (DOE) on 
June 5, 2008 (Administrative Record Number WV-1506). The DOE 
acknowledged receipt of both letters and stated that it did not have 
the expertise to analyze the issues underlying the State's ABS or to 
comment on the other proposed revisions. Although they offered no 
substantive comments, we appreciate the time and effort that DOE took 
to respond to our request.
    The Natural Resources Conservation Service (NRCS), U.S. Department 
of Agriculture submitted its response on June 5, 2008 (Administrative 
Record Number WV-1510). The NRCS did not have any comments on the 
proposed changes to the special reclamation tax and any other proposed 
changes to the State's ABS. Although NRCS also offered no substantive 
comments, we appreciate the time and effort that they took to respond 
to our request.
    The Mine Safety and Health Administration (MSHA), U.S. Department 
of the Interior, submitted its comments on June 12, 2008 
(Administrative Record Number WV-1511). MSHA acknowledged that some of 
the changes to the State's blasting and reclamation requirements are 
more restrictive than current MSHA standards, and the proposed 
revisions to the State's requirements for sediment control and water 
retention structures are newer and, in some instances, more stringent 
than MSHA standards. According to MSHA, because mine operators must 
comply with the more stringent standard, they had no concerns regarding 
the proposed amendments.
    We concur with MSHA's comments. In those instances where a State 
provision may be more stringent than the Federal requirement, section 
505(b) of SMCRA provides that the State requirement will not be 
construed to be inconsistent with the Act.

Environmental Protection Agency (EPA) Concurrence and Comments

    Under 30 CFR 732.17(h)(11)(i) and (ii), we are required to request 
comments and obtain written concurrence from EPA for those provisions 
of the program amendment that relate to air or water quality standards 
issued under the authority of the Clean Water Act (33 U.S.C. 1251 et 
seq.) or the Clean Air Act (42 U.S.C. 7401 et seq.). On April 29, 2008, 
we solicited comments and the written concurrence of EPA on the 
proposed State revisions (Administrative Record Number 1505B). As 
mentioned above, we also notified EPA on May 14, 2008, that we would be 
interested in receiving comments on the proposed change to the State's 
special reclamation tax and any other revisions to the State's 
alternative bonding system as set forth in West Virginia Code 22-3-
11(h)(1) (Administrative Record Number WV-1509).
    EPA responded by letter dated September 25, 2008 (Administrative 
Record Number WV-1513). EPA stated that, based on 30 U.S.C. 1292, the 
proposed State amendments must be construed and implemented consistent 
with the Clean Water Act (CWA), National Pollutant Discharge 
Elimination System (NPDES) regulations, and other relevant 
environmental statutes. Accordingly, EPA provided its concurrence on 
the proposed State program amendments. EPA went on to provide the 
following comments on the proposed revisions to the State's Surface 
Mining Reclamation Regulations and the proposed statutory revisions to 
the State's alternative bonding system.
    EPA commented on the proposed revisions to CSR 38-2-5.4.h.2 
regarding sediment control. EPA acknowledged that it strongly supports 
efforts to ensure that natural drain ways are returned to natural 
conditions once drainage control structures are removed. EPA encouraged 
the use of natural erosion control techniques, such as vegetation, in 
lieu of rock-lined channels to the maximum extent practicable. 
Accordingly, EPA viewed the proposed amendment as a step in that 
direction.
    We concur with EPA's comment. As discussed above in Finding 6, we 
found that the proposed changes to the State's abandonment procedures 
for sediment control structures at Subparagraph 5.4.h.2 were no less 
effective than the Federal abandonment requirements at 30 CFR 816. 
46(b), 816.49(c), 816.56, 817.46(b), 817.49(c), and 817.56.
    EPA commented on the State's proposed revisions to its storm water 
runoff requirements at CSR 38-2-5.6.a. EPA noted that the amendment 
exempts mining operations with permitted acreage of less than 50 acres 
from preparing a storm water runoff analysis and further excludes from 
the requirement haulroads, loadouts and ventilation facilities. EPA 
went on to warn that the NPDES permitting requirements do not include 
an exemption or limitation based on minimum permitted acreage, and 
these amendments cannot exempt coal mining facilities from any 
applicable regulations under the CWA, including the storm water 
regulations.
    We must note that the State's storm water runoff analysis required 
under Subdivision 5.6.a does not relate to

[[Page 27155]]

storm water requirements under the CWA. As provided by CSR 38-2-
5.4.b.2, all sediment control or other water retention structures used 
in association with mining must comply with applicable State and 
Federal water quality standards and meet effluent limitations as 
specified in an NPDES permit for all discharges. In addition, CSR 38-2-
14.5.b provides that discharges from areas disturbed by surface mining 
cannot violate effluent limitations or cause a violation of applicable 
water quality standards. The monitoring frequency and effluent 
limitations are governed by the standards set forth in an NPDES permit 
issued pursuant to W. Va. Code Section 22-11 et seq., the Federal Water 
Pollution Control Act as amended, 33 U.S.C. 1251 et seq. and the rules 
and regulations promulgated thereunder. As discussed above in Finding 
7, we found that Subdivision 5.6.a contains more specific information 
regarding storm impacts than the Federal rules, but the proposed 
revisions thereto were not inconsistent with the Federal hydrologic 
requirements at 30 CFR 780.21 and 784.14. Furthermore, water discharges 
from areas disturbed by surface mining activities must comply with 
NPDES effluent limitations and all applicable State and Federal water 
quality laws and regulations, as provided by Subdivision 14.5.b and 30 
CFR 816.42 and 817.42. However, we must also note that the State has 
adopted a NPDES storm water policy that allows storm water discharges 
to be regulated in accordance with an Article 3 (SMCRA) permit 
revision, including incidental boundary revisions, and with the best 
management practices and performance standards contained in the State's 
surface mining law and regulations. Such storm water discharges cannot 
involve any coal removal, pumping of storm water, or storm water runoff 
commingled with mine drainage, refuse drainage, coal stockpile areas, 
preparation plant areas, loading areas, or unloading areas. Under the 
policy, the State can require any permittee to submit a NPDES 
modification when it is determined that such receiving stream will be 
better protected by an individual NPDES permit. Given that under this 
policy some discharges of water from areas disturbed by surface mining 
activities, especially underground mines, may not be subject to an 
individual NPDES permit as required by Subdivision 14.5.b and 30 CFR 
816.42 and 817.42, further consultation and coordination with EPA is 
envisioned to ensure that the State's policy is consistent with SMCRA, 
the CWA, and their implementing regulations. The aforementioned State 
policy would not be part of the approved State regulatory program, 
because the authority for this policy resides under the CWA, not SMCRA. 
OSMRE is, however, interested in the mechanics of the policy and how it 
is to be implemented and enforced under SMCRA.
    EPA supports the proposed change to the State's alternative bonding 
system because it addresses long term pollutional drainage.

V. OSMRE's Decision

    Based on the above findings, we are approving, with certain 
exceptions and understandings, the West Virginia program amendment 
dated April 8, 2008, as received electronically on April 17, 2008.
    To implement this decision, we are amending the Federal regulations 
at 30 CFR part 948, which codify decisions concerning the West Virginia 
program. In accordance with the Administrative Procedure Act, this rule 
will take effect 30 days after publication in the Federal Register. 
Section 503(a) of SMCRA requires that the State's program demonstrate 
that the State has the capability of carrying out the provisions of the 
Act and meeting its purposes. SMCRA requires consistency of State and 
Federal standards.

VI. Procedural Determinations

Executive Order 12630--Governmental Actions and Interference With 
Constitutionally Protected Property Rights

    This rule would not effect a taking of private property or 
otherwise have taking implications that would result in public property 
being taken for government use without just compensation under the law. 
Therefore, a takings implication assessment is not required. This 
determination is based on an analysis of the corresponding Federal 
regulations.

Executive Order 12866--Regulatory Planning and Review and 13563--
Improving Regulation and Regulatory Review

    Executive Order 12866 provides that the Office of Information and 
Regulatory Affairs in the Office of Management and Budget (OMB) will 
review all significant rules. Pursuant to OMB guidance, dated October 
12, 1993, the approval of state program amendments is exempt from OMB 
review under Executive Order 12866. Executive Order 13563, which 
reaffirms and supplements Executive Order 12866, retains this 
exemption.

Executive Order 12988--Civil Justice Reform

    The Department of the Interior has reviewed this rule as required 
by Section 3 of Executive Order 12988. The Department has determined 
that this Federal Register notice meets the criteria of Section 3 of 
Executive Order 12988, which is intended to ensure that the agency 
review its legislation and proposed regulations to eliminate drafting 
errors and ambiguity; that the agency write its legislation and 
regulations to minimize litigation; and that the agency's legislation 
and regulations provide a clear legal standard for affected conduct 
rather than a general standard, and promote simplification and burden 
reduction. Because Section 3 focuses on the quality of Federal 
legislation and regulations, the Department limited its review under 
this Executive Order to the quality of this Federal Register notice and 
to changes to the Federal regulations. The review under this Executive 
Order did not extend to the language of the state regulatory program or 
to the program amendment that the State of West Virginia drafted.

Executive Order 13132--Federalism

    This rule is not a ``[p]olicy that [has] Federalism implications'' 
as defined by Section 1(a) of Executive Order 13132 because it does not 
have ``substantial direct effects on the States, on the relationship 
between the national government and the States, or on the distribution 
of power and responsibilities among the various levels of government.'' 
Instead, this rule approves an amendment to the West Virginia program 
submitted and drafted by that State. OSMRE reviewed the submission with 
fundamental federalism principles in mind as set forth in Sections 2 
and 3 of the Executive Order and with the principles of cooperative 
federalism set forth in SMCRA. See e.g. 30 U.S.C. 1201(f). As such, 
pursuant to Section 503(a)(1) and (7) (30 U.S.C. 1253(a)(1) and (7)), 
OSMRE reviewed the program amendment to ensure that it is ``in 
accordance with'' the requirements of SMCRA and ``consistent with'' the 
regulations issued by the Secretary pursuant to SMCRA.

Executive Order 13175--Consultation and Coordination With Indian Tribal 
Governments

    The Department of the Interior strives to strengthen its 
government-to-government relationship with Tribes through a commitment 
to consultation with Tribes and recognition of their

[[Page 27156]]

right to self-governance and tribal sovereignty. We have evaluated this 
rule under the Department's consultation policy and under the criteria 
in Executive Order 13175 and have determined that it has no substantial 
direct effects on federally recognized Tribes or on the distribution of 
power and responsibilities between the Federal government and Tribes. 
Therefore, consultation under the Department's tribal consultation 
policy is not required. The basis for this determination is that our 
decision is on the West Virginia program that does not include Tribal 
lands or regulation of activities on Tribal lands. Tribal lands are 
regulated independently under the applicable, approved Federal program.

Executive Order 13211--Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use

    Executive Order 13211 requires agencies to prepare a Statement of 
Energy Effects for a rulemaking that is (1) considered significant 
under Executive Order 12866, and (2) likely to have a significant 
adverse effect on the supply, distribution, or use of energy. Because 
this rule is exempt from review under Executive Order 12866 and is not 
significant energy action under the definition in Executive Order 
13211, a Statement of Energy Effects is not required.

National Environmental Policy Act

    Consistent with sections 501(a) and 702(d) of SMCRA (30 U.S.C. 
1251(a) and 1292(d), respectively) and the U.S. Department of the 
Interior Departmental Manual, part 516, section 13.5(A), State program 
amendments are not major Federal actions within the meaning of section 
102(2)(C) of the National Environmental Policy Act (42 U.S.C. 
4332(2)(C)).

National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act (15 U.S.C. 3701 et seq.) directs OSMRE to use voluntary consensus 
standards in its regulatory activities unless to do so would be 
inconsistent with applicable law or otherwise impractical. (OMB 
Circular A-119 at p. 14). This action is not subject to the 
requirements of section 12(d) of the NTTAA because application of those 
requirements would be inconsistent with SMCRA.

Paperwork Reduction Act

    This rule does not include requests and requirements of an 
individual, partnership, or corporation to obtain information and 
report it to a Federal agency. As this rule does not contain 
information collection requirements, a submission to the Office of 
Management and Budget under the Paperwork Reduction Act (44 U.S.C. 3501 
et seq.) is not required.

Regulatory Flexibility Act

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

Small Business Regulatory Enforcement Fairness Act

    This rule is not a major rule under 5 U.S.C. 804(2), the Small 
Business Regulatory Enforcement Fairness Act. This rule: (a) Does not 
have an annual effect on the economy of $100 million; (b) will not 
cause a major increase in costs or prices for consumers, individual 
industries, Federal, State, or local government agencies, or geographic 
regions; and (c) does not have significant adverse effects on 
competition, employment, investment, productivity, innovation, or the 
ability of U.S.-based enterprises to compete with foreign-based 
enterprises. This determination is based on an analysis of the 
corresponding Federal regulations, which were determined not to 
constitute a major rule.

Unfunded Mandates

    This rule will not impose an unfunded mandate on State, local, or 
Tribal governments, or the private sector of more than $100 million per 
year. The rule does not have a significant or unique effect on State, 
local, or Tribal governments or the private sector. This determination 
is based on an analysis of the corresponding Federal regulations, which 
were determined not to impose an unfunded mandate. Therefore, a 
statement containing the information required by the Unfunded Mandates 
Reform Act (2 U.S.C. 1531 et seq.) is not required.

List of Subjects in 30 CFR Part 948

    Intergovernmental relations, Surface mining, Underground mining.


Thomas D. Shope,
Regional Director, North Atlantic--Appalachian Region.

    For the reasons set out in the preamble, 30 CFR part 948 is amended 
as set forth below:

PART 948--WEST VIRGINIA

0
1. The authority citation for Part 948 continues to read as follows:

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


0
2. Section 948.12 is amended by revising paragraph (i) and adding 
paragraph (j) to read as follows:


Sec.  948.12   State statutory, regulatory, and proposed program 
amendment provisions not approved.

* * * * *
    (i) We are removing and reserving paragraph (i) for the following 
reasons:
    (1) We are removing and reserving subparagraph (1) of paragraph (i) 
since the words ``Impoundments meeting'' have been removed from CSR 38-
2-5.4.e.1.
    (2) We are removing and reserving subparagraph (2) of paragraph (i) 
since CSR 38-2-7.4.b.1.J.1(C) has been reinserted in the State 
regulations.
    (j) We are not approving the following provisions of the proposed 
West Virginia program amendment dated April 8, 2008, and received 
electronically on April 17, 2008:
    (1) At CSR 199-1-2.27 regarding other structure, the last sentence 
which provides that, ``The term does not include structures owned, 
operated, or built by the permittee for the purpose of carrying out 
surface mining operations.''
    (2) At CSR 199-1-2.36 regarding structure, the last sentence which 
provides that, ``The term does not include structures built and/or 
utilized for the purpose of carrying out the surface mining 
operation.''
    (3) At CSR 38-2-2.119 regarding structure, the last sentence which 
provides that, ``The term does not include structures built and/or 
utilized for the purpose of carrying out the surface mining 
operation.''
    (4) At CSR 38-2-6.5.h, we are not approving its deletion because 
the deletion of CSR 38-2-6.5.h would make CSR 199-1-3.6.g and 3.11 less 
effective than the Federal blasting requirements.

0
3. Section 948.15 is amended by adding an entry to the table in 
chronological order by ``Date of publication of final rule'' to read as 
follows:

[[Page 27157]]

Sec.  948.15   Approval of West Virginia regulatory program amendments.

* * * * *

------------------------------------------------------------------------
                                     Date of
 Original amendment submission    publication of    Citation/description
             date                   final rule
------------------------------------------------------------------------
 
                              * * * * * * *
April 8, 2008.................  May 7, 2020......  CSR 38-2-2.119
                                                    (partial approval);
                                                    38-2-3.1.c; 3.1.d;
                                                    3.2.g (qualified
                                                    approval); 3.29.a
                                                    (deletion); 3.32.b
                                                    (deletion); 5.4.e.1
                                                    (deletion); 5.4.h.2;
                                                    5.6.a (qualified
                                                    approval); 5.6.b;
                                                    5.6.d (deletion);
                                                    6.1; 6.2; 6.3-6.8
                                                    (deletions), with
                                                    exception 6.5.h
                                                    (deletion not
                                                    approved) and
                                                    6.8.a.1 (qualified
                                                    approval);
                                                    7.4.b.1.J.1(c);
                                                    14.15.c.2;
                                                    14.15.d.3; 14.15.e
                                                    (deletions); 19.9;
                                                    23.3 (qualified
                                                    approval); and 23.4.
                                                   CSR 199-1-2; 2.27
                                                    (partial approval)
                                                    2.36 (partial
                                                    approval); 3.2.a;
                                                    3.2.b; 3.2.c; 3.2.d;
                                                    3.2.e (deletion);
                                                    3.3; 3.4 (qualified
                                                    approval); 3.5; 3.6
                                                    (qualified
                                                    approval); 3.7; 3.8
                                                    (qualified approvals/
                                                    forms); 3.9; 3.10
                                                    (qualified
                                                    approval); 4.1; 4.2;
                                                    4.3; 4.5 (qualified
                                                    approval); 4.6; 4.7;
                                                    4.9.a; 4.13; 4.14;
                                                    5.2 (qualified
                                                    approval); 6; and 7.
                                                   W. Va. Code 22-3-
                                                    11(a); 11(g);
                                                    11(h)(l); 11(h)(2);
                                                    11(h)(3); 11(h)(4);
                                                    11(l) (deletion);
                                                    and 11(m).
------------------------------------------------------------------------

[FR Doc. 2020-08150 Filed 5-6-20; 8:45 am]
 BILLING CODE 4310-05-P