West Virginia Regulatory Program

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[Federal Register: December 1, 2003 (Volume 68, Number 230)]
[Rules and Regulations]
[Page 67035-67045]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr01de03-12]

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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 948
[WV-091-FOR]

AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM),
Interior.
ACTION: Final rule; approval of amendment.

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SUMMARY: We are announcing our approval of an amendment to the West
Virginia surface coal mining regulatory program (the West Virginia
program) under the Surface Mining Control and Reclamation Act of 1977
(SMCRA or the Act). The amendment we are approving consists of changes
to the West Virginia Surface Mining Reclamation Rules as contained in
House Bill 2663. The amendment is intended to improve the operational
efficiency of the West Virginia program.

EFFECTIVE DATE: December 1, 2003.

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: chfo@osmre.gov.

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

I. Background on the West Virginia Program

Section 503(a) of SMCRA permits a State to assume primacy for the
regulation of surface mining and reclamation operations on non-Federal
and non-Indian lands within its borders by demonstrating that its State
program includes, among other things, ``a State law which provides for
the regulation of surface coal mining and reclamation operations in
accordance with the requirements of the Act * * *; and rules and
regulations consistent with regulations issued by the Secretary
pursuant to the Act.'' See 30 U.S. C. 1253(a)(1) and (7). On the basis
of these criteria, the Secretary of the Interior conditionally approved
the West Virginia program on January 21, 1981. You can find background
information on the West Virginia program, including the Secretary's
findings, the disposition of comments, and conditions of approval 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 May 2, 2001 (Administrative Record Number WV-1209),
the West Virginia Department of Environmental Protection (WVDEP)
submitted a proposed amendment to the West Virginia program. The
program amendment consists of changes to the West Virginia Surface
Mining Reclamation Rules at Code of State Regulations (CSR) 38-2, as
amended by House Bill 2663.
We announced receipt of the proposed amendment in the May 24, 2001,
Federal Register (66 FR 28682). 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-1213). The public comment period closed on June 25,
2001. At the request of two commenters, we extended the comment period
through July 13, 2003 (Administrative Record Numbers WV-1222 and WV-
1223). We received comments from four environmental organizations and
two Federal agencies.
We did not request comments on the proposed changes to CSR 38-2-
3.14.b.12, concerning the partial removal of coal processing refuse
piles, because that activity pertains to the removal of coal refuse
that does not meet the definition of coal. In 1990, we stated that
``the removal, transport and use (without onsite reprocessing) of coal
mine refuse which does not meet the definition of ``coal'' set forth in
30 CFR 700.5; i.e., ASTM Standard D 388-77, is not subject to
regulation [under SMCRA].'' 55 FR 21314; May 23, 1990. Therefore, it is
not subject to regulation under SMCRA, and will not be considered here.
We note that the removal of abandoned coal refuse piles was the subject
of a later amendment that was addressed in a final rule notice
published in the May 1, 2002, Federal Register (67 FR 21920)
(Administrative Record Number WV-1300).
In the proposed rule notice published on May 24, 2001, we
incorrectly stated that the definition of ``cumulative impact area'' at
CSR 38-2-2.39 is new and subject to public comment. The definition of
``cumulative impact area'' is not new, and is already part of the
approved West Virginia program.
On July 1, 2003, WVDEP sent us a letter containing clarification
concerning the proposed deletion of the definition of ``cumulative
impact,'' the addition of a definition of ``material damage to the
hydrologic balance outside the permit areas,'' and the addition of a
provision qualifying certain coal removal during reclamation as
government-financed construction that is exempt from a permit
(Administrative Record Number WV-1365). The State's July 1, 2003,
letter was in response to questions that we posed in a list dated
February 26, 2003 (Administrative Record Number WV-1365). We announced
receipt of the State's clarification letter in the Federal Register on
July 31, 2003 (68 FR 44910). In the same document, we reopened the
comment period to provide the public an opportunity to review and
comment on the State's letter and whether the amendment, as further
clarified in the State's letter dated July 1, 2003, satisfies the
applicable program approval criteria of 30 CFR 732.15 (Administrative
Record Number WV-1369). The public comment period closed on August 15,
2003. At the request of a Federal agency, we extended the public
comment period through August 29, 2003 (Administrative Record Number
WV-1371). We received comments from three environmental organizations
and two Federal agencies.
Several of the proposed changes to the West Virginia regulations
that were submitted as part of this amendment were intended to address
required program amendments codified in the Federal regulations at 30
CFR 948.16(xx), (qqq), (zzz), (ffff), (gggg), (hhhh), (jjjj), (nnnn)
and (pppp). We expedited our review of the specific amendments relating
to those required amendments and published our decisions on them in the
Federal Register on May 1, 2002 (67 FR 21904). Specifically, our
findings on the following provisions that were submitted with this
amendment and were addressed in our May 1, 2002, decision include: CSR
38-2-14.8.a.6 (948.16(xx)); CSR 38-2-12.2.e (948.16(qqq)); CSR 38-2-
3.12.a.1 (948.16(zzz)); CSR 38-2-16.2.c.4 (948.16(ffff)); CSR 38-2-
16.2.c.4 (948.16(gggg)); CSR 38-2-16.2.c.4

[[Page 67036]]

(948.16(hhhh)); CSR 38-2-12.4.e (948.16(jjjj)); CSR 38-2-3.14.a
(948.16(nnnn)); and CSR 38-2-24.4 (948.16(pppp)). Our findings on the
remaining amendments submitted to us on May 2, 2001, are presented
below.

III. OSM's Findings

Following are the findings we made pursuant to SMCRA and the
Federal regulations at 30 CFR 732.15 and 732.17 concerning the proposed
amendments to the West Virginia program. Any revisions that we do not
specifically discuss below concern nonsubstantive wording or editorial
changes and are approved here without discussion.

1. CSR 38-2-2.39 Definition of ``Cumulative Impact''

The definition of ``cumulative impact'' at CSR 38-2-2.39 is being
deleted. The deleted definition provided as follows:

2.39. Cumulative Impact means the hydrologic impact that results
from the cumulation of flows from all coal mining sites to common
channels or aquifers in a cumulative impact area. Individual mines
within a given cumulative impact area may be in full compliance with
effluent standards and all other regulatory requirements, but as a
result of the co-mingling of their off-site flows, there is a
cumulative impact. The Act does not prohibit cumulative impacts but
does emphasize that they be minimized. When the magnitude of
cumulative impact exceeds threshold limits or ranges as
predetermined by the Division, they constitute material damage.

There is no Federal counterpart to the definition of ``cumulative
impact'' at CSR 38-2-2.39 that the State proposes to delete. Under
SMCRA at section 505, the States have the discretion to add laws or
regulations to their programs as long as those laws or regulations are
not inconsistent with SMCRA. Conversely, the States also have the
discretion to remove laws or regulations from their approved programs
so long as the removal does not render the program inconsistent with
SMCRA. Therefore, the criterion we must apply in deciding whether to
approve the proposed deletion is whether or not the deletion would
render the West Virginia program less stringent than SMCRA or less
effective than the Federal regulations. That criterion is different
than the question of whether the deletion of the definition of
``cumulative impact'' may alter the existing CHIA process in West
Virginia in a way that is adverse to some commenters' interests as they
have asserted (see Section IV, Summary and Disposition of Comments).
Rather, we are rendering a decision only on the question of whether the
deletion of the definition of ``cumulative impact'' renders the West
Virginia program less stringent than SMCRA or less effective than the
Federal regulations.
As the WVDEP noted in its July 1, 2003, letter to OSM, the West
Virginia program contains a counterpart to the Federal definition of
``cumulative impact area.'' That definition was determined earlier to
be consistent with the counterpart Federal definition of the term
``cumulative impact area'' at 30 CFR 701.5. The West Virginia program
also has approved counterparts to all of the Federal CHIA-related
requirements, and those provisions are not at issue here. However,
there is no Federal requirement that State programs contain a
definition of ``cumulative impact.'' For these reasons, we find that
the deletion of the definition of ``cumulative impact'' does not render
the West Virginia program less stringent than SMCRA nor less effective
than the Federal regulations and can be approved. We express no further
opinion on whether or how the deletion of this definition may alter the
current CHIA process in West Virginia, because such procedural changes
are within the State's discretion under the existing Federal
regulations.

2. CSR 38-2-3.22.e Cumulative Hydrologic Impact Assessment (CHIA)

The CHIA provision at CSR 38-2-3.22.e is being amended by adding
the following definition of material damage:

3.22.e. .* * * Material damage to the hydrologic balance outside
the permit areas means any long term or permanent change in the
hydrologic balance caused by surface mining operation(s) which has a
significant adverse impact on the capability of the affected water
resource(s) to support existing conditions and uses.

There is no Federal counterpart to the proposed State definition of
``material damage to the hydrologic balance outside the permit areas.''
Nor is there a Federal requirement that States develop a definition of
material damage. In addition, SMCRA at section 505(b) provides that any
State statutory or regulatory provision which is in effect or may
become effective after the enactment of SMCRA and that provides for the
control and regulation of surface mining and reclamation operations for
which no provision is contained in SMCRA shall not be construed to be
inconsistent with SMCRA. In a Federal Register notice dated September
26, 1983, OSM addressed comments on the Federal CHIA regulations at 30
CFR 780.21(g) and 784.14(f) (48 FR 43956). OSM concluded that, because
the gauges for measuring material damage may vary from area to area,
and even from operation to operation, the criteria for determining
material damage should be left to the States (48 FR 43956, 43972-
43973).
It is expected that State and Federal regulatory authorities will
develop criteria to measure material damage for the purposes of the
CHIAs. Currently, all 24 State coal regulatory programs and the Federal
regulatory programs in Tennessee, Washington, and the Federal Indian
lands program have implemented a CHIA process. All of these programs
include making decisions on whether or not material damage outside the
permit area would occur. As such, each has established some basis or
criteria for making those decisions. Seeking Federal approval of such
criteria is discretionary, and many States have developed and applied
such criteria without OSM approval. Only one State (Wyoming), has
previously codified a definition of material damage and has had that
definition approved by OSM. We approved Wyoming's definition of
material damage in the original program approval on November 26, 1980,
as follows: ``material damage to the hydrologic balance is a
significant long-term or permanent adverse change to the hydrologic
regime.'' We note that Wyoming's approved definition includes a long-
term aspect as does the proposed West Virginia definition of material
damage to the hydrologic balance outside the permit areas.
While West Virginia has submitted its definition of material damage
for approval, that action does not alter the fact that it, like any
other State, has the discretion to develop and implement material
damage criteria without seeking or awaiting OSM approval of that
criteria. The WVDEP's July 1, 2003, letter acknowledges that the State
intends to use a narrative-based use standard in making its CHIAs and
is asking for OSM to formally sanction that narrative-based standard.
Furthermore, the WVDEP also stated in its July 1, 2003, letter, that
the State approach will consider both water quality numerical limits
and water resources uses designated by the water quality programs in
making the CHIAs required by the mining program. In essence, the State
proposes to adopt both a use-based narrative standard and a numeric
standard for evaluating material damage to the hydrologic balance under
its CHIA process.
As mentioned above in Finding 1, the West Virginia program has
approved counterparts to all the Federal CHIA-related requirements.
However, there is no Federal requirement that States must develop a
specific definition of material damage. The proposed definition does
not on its face negate, supersede, alter, or conflict with any of the
approved

[[Page 67037]]

State rules related to the CHIA process or their Federal counterparts.
For these reasons, we find that the proposed State definition of
material damage does not render the West Virginia program less
stringent than SMCRA nor less effective than the Federal regulations
and can be approved.

3. CSR 38-2-3.31 Federal, State, County, Municipal, or Other Local
Government-Financed Highway or Other Construction Exemption

By submitting the following changes on May 1, 2002, and March 18,
2003, the State proposes to amend CSR 38-2-3.31 (Administrative Record
Numbers WV-1209 and WV-1352).
In its March 18, 2003, amendment submittal, subsection 3.31.a is
amended to provide that, ``Funding at less than fifty percent (50%) may
qualify if the construction is undertaken as an approved government
reclamation contract.'' We announced receipt of the proposed amendment
to subsection 3.31.a in a proposed rule that was published in the
Federal Register on April 14, 2003, (68 FR 17898). Although the rest of
the submittal has been acted upon, we have not rendered a decision on
the proposed amendment to subsection 3.31.a.
Subsection 3.31.c is new, and provides the following: ``Funding
less than fifty percent (50%) may qualify if the construction is
undertaken as part of an approved reclamation project in accordance
with WV Code Sec. 22-3-28.'' This amendment was submitted on May 1,
2002, and is intended to revise the West Virginia program to add the
additional flexibility afforded by the revised Federal definition of
the term ``government-financed construction'' at 30 CFR 707.5. For more
information concerning the revised Federal definition and the Federal
Abandoned Mine Land (AML) Enhancement Rule, see the February 12, 1999,
Federal Register (64 FR 7469).
In its July 1, 2003, clarification letter to OSM, WVDEP stated that
the ``change to allow coal removal in conjunction with a reclamation
project is designed to encourage/result in low cost or no-cost
reclamation as provided for in the Federal program (see 30 CFR
707.5).'' The WVDEP asserted that the State rule contains the same
language as the Federal regulations, except that the State refers to
the W. Va. Code and the Federal counterpart refers to title IV. Indeed,
the Federal definition of ``Government-financed construction'' at 30
CFR 707.5 provides, in part, that funding at less than 50 percent may
qualify if the construction is undertaken as an approved reclamation
project under title IV of the Act. That is, the Federal definition of
``government-financed construction'' limits government funding at less
than 50 percent to only those construction projects that are undertaken
as approved abandoned mine land reclamation projects under title IV of
SMCRA.
The WVDEP also stated that the W. Va. Code 22-3-28(e) is a
subsection of W. Va. Code 22-3-28. Subsection (e), the WVDEP stated, is
the only subsection of W. Va. Code 22-3-28 that mentions government-
financed reclamation. Therefore, the WVDEP asserts, it is obvious that
subsection (e) is the only applicable subsection to which the proposed
CSR 38-2-3.31(c) could apply.
The WVDEP is currently in the process of revising the State AML
Reclamation Plan to add counterparts to the Federal requirements at 30
CFR 874.17 which require specific consultations and concurrences with
the Title V regulatory authority for AML construction projects
receiving less than 50 percent government financing. In addition, the
WVDEP intends to submit a revision to the State's AML rules during the
2004 regular legislative session that will add a counterpart to the
Federal definition of ``government-financed construction'' at 30 CFR
707.5.
As discussed in the February 9, 1999, May 5, 2000, and May 1, 2002,
Federal Register notices, we deferred taking similar action on proposed
revisions to the State's statutory and regulatory provisions regarding
government-financed construction (64 FR 6201, 64 FR 6204, 65 FR 26130
and 67 FR 21920). We took this action because the Federal AML
Enhancement Rule had not been finalized and the State had not amended
its rules. Even with the proposed changes mentioned above, the State
has not completely revised its rules to include all of the AML
Enhancement requirements at 30 CFR 707.5 and 874.17. In addition, in a
recent ruling, the U.S. Court of Appeals concluded that the Federal AML
Enhancement Rule is a reasonable interpretation of SMCRA. However, the
Court found that, in promulgating the rule, OSM issued an
interpretation that does not appear reasonable and remanded the case
for further explanation. See Kentucky Resources Council, Inc. v. Gale
A. Norton, Secretary of the Interior, U.S. District Court of Appeals
for the District of Columbia Circuit, Civil Action No. 01-5263, June
12, 2003. Therefore, we are deferring our decision on the amendments at
CSR 38-2-3.31.a and c until the State adds counterparts to the Federal
regulations at 30 CFR 707.5 and 874.17 as discussed above.

4. CSR 38-2-3.32.g. Permit Issuance--Unanticipated Event or Condition

This provision is amended by adding new language at the end of the
existing one-sentence paragraph, and by adding three new subdivisions.
As amended, the provision is as follows:

3.32.g. The prohibition of subdivision 3.32.c shall not apply to
a permit application due to any violation resulting from an
unanticipated event or condition at a surface mine eligible for
remining under permit held by the applicant that meets the
requirements of 30 CFR 773.15(4)(i). An event will be presumed to be
unanticipated for purposes of this paragraph if it:

3.32.g.1. Arose after remining permit was issued.
3.32.g.2. Was related to prior mining; and

3.32.g.3. Was not identified in the remining permit.

We find that as amended, CSR 38-2-3.32.g is substantively identical
to and no less effective than the Federal requirements at 30 CFR 773.13
and can be approved. We note that the proposed language contains a
citation error, in that ``30 CFR 773.15(4)(i)'' should be ``30 CFR
785.25.'' It is our understanding that the citation error will be
corrected at a future date. Our finding that this provision is no less
effective than the Federal regulations is based upon that
understanding.

5. CSR 38-2-5.2.a. Intermittent or Perennial Stream Buffer Zone

This provision is amended by deleting the words, ``normal flow or
gradient of the stream, adversely affect fish migration or related
environmental values, materially damage the.'' In addition the words
``and'' and ``or other environmental resources'' are added. As amended,
the provision is as follows:

5.2.a. Intermittent or Perennial Stream. No land within one
hundred feet (100') of an intermittent or perennial stream shall be
disturbed by surface mining operations including roads unless
specifically authorized by the Director. The Director will authorize
such operations only upon finding that surface mining activities
will not adversely affect the water quantity and quality or other
environmental resources of the stream and will not cause or
contribute to violations of applicable State or Federal water
quality standards. The area not to be disturbed shall be designated
a buffer zone and marked accordingly.

We find that as amended, section CSR 38-2-5.2.a. is substantively
identical to and no less effective than the counterpart Federal
regulations at 30 CFR 816.57(a)(1) and (b) and can be approved. We note
that the State counterpart to the Federal regulations at 30 CFR
816.57(a)(2) concerning stream channel diversions was previously

[[Page 67038]]

approved and is located at CSR 38-2-5.3.

6. CSR 38-2-11.3.a.3. Surety Bonds

This provision is new, and provides as follows:

11.3.a.3. Surety received after July 1, 2001, must be recognized
by the treasurer of state as holding a current certificate of
authority from the United States Department of the Treasury as an
acceptable surety on federal bonds.

There is no counterpart to this new State provision in the Federal
surface mining regulations. However, before a surety company can issue
a bond for a Federal project, it must be certified by the U.S.
Department of the Treasury. For further information, see Department of
the Treasury's Listing of Approved Sureties, Department Circular 570.
Therefore, we find that the new provision does not render the West
Virginia program inconsistent with the Federal bonding and insurance
regulations at 30 CFR part 800 and can be approved.

IV. Summary and Disposition of Comments

Public Comments

We asked for public comments on the State's amendment in the
Federal Register on May 24, 2001 (66 FR 28682) (Administrative Record
Number WV-1213). We received comments from the West Virginia Rivers
Coalition (Administrative Record Number WV-1228), and combined comments
from Hominy Creek Preservation Association, Inc., Ohio River Valley
Environmental Coalition, Inc., and Citizen Coal Council (Administrative
Record Number WV-1227). We also asked for comments on the State's
clarification letter in the Federal Register on July 31, 2003
(Administrative Record Number WV-1368). By letter dated August 15,
2003, the Hominy Creek Preservation Association, Inc., Ohio River
Valley Environmental Coalition, Inc., and Citizen Coal Council
submitted combined comments in response to the WVDEP's July 1, 2003,
letter of explanation concerning the CHIA amendments (Administrative
Record Number WV-1370).
1. A commenter stated that, despite the State's assertion that the
amendments become effective on August 1, 2001, the Federal regulations
provide that no amendments may take effect until OSM approves the
change as a program amendment. We concur with this comment. According
to the Federal regulations at 30 CFR 732.17(g) concerning State program
amendments, no changes to laws or regulations that make up the approved
State program shall take effect for purposes of a State program until
approved as an amendment. However, as noted above in Finding 2, because
the Federal rules do not define material damage, a State has discretion
to develop and implement material damage criteria without seeking or
awaiting OSM approval of that criteria.
2. A commenter asserted that the State did not include a ``reasoned
analysis'' as to why it was making the changes to delete the definition
of ``cumulative impact'' at CSR 38-2-2.39 and to add the definition of
``material damage to the hydrologic balance outside the permit area''
at CSR 38-2-3.22.e. Despite its July 1, 2003, clarification letter, the
commenter asserted, the State has still not offered a rational
explanation for the proposed amendment. This comment is beyond the
scope of our criteria in approving proposed State program amendments.
Whether or not the State has provided a ``reasoned analysis'' of
proposed changes is an issue for the State rulemaking process. Our
criterion is only to the issue of whether or not the proposed changes
are consistent with the Federal requirements.
3. A commenter stated that the definition of ``cumulative impact''
at CSR 38-2-2.39 is needed because the term ``cumulative impact'' is
used at CSR 38-2-3.32.d.5. Subsection 3.32.d.5 provides that no permit
application or significant revision may be approved until, among other
things, the WVDEP has made an assessment of the probable ``cumulative
impacts'' of all anticipated coal mining on the hydrologic balance in
the cumulative impact area, and has determined that the proposed
operation has been designed to prevent material damage to the
hydrologic balance outside the permit area. The commenter stated that
for CSR 38-2-3.32.d.5 to retain meaning, the term ``cumulative impact''
must continue to be defined. We disagree with this comment, because the
State retains the definition of ``cumulative impact area'' at CSR 38-2-
2.39, which explains the concept of cumulative impact to mean the area,
including the permit area, within which impacts resulting from the
proposed operation may interact with the impacts of all anticipated
mining on surface and groundwater systems. As addressed in a prior
approval, the State's definition of cumulative impact area is
substantively identical to the Federal definition of cumulative impact
area at 30 CFR 701.5.
The commenter stated that the definition of ``cumulative impact''
is also important because it clarifies that ``individual mines within a
given cumulative impact area may be in full compliance with effluent
standards and all other regulatory requirements, but as a result of the
co-mingling of their off-site flows, there is cumulative impact.'' By
deleting the definition, the commenter asserted, this clarification is
omitted from the rules, making it more difficult in the future to hold
individual mines accountable if they impact nearby water resources. In
response, despite the deletion of the definition of ``cumulative
impact,'' the WVDEP continues to require, at CSR 38-2-14.5, that all
surface mining and reclamation activities shall be conducted to prevent
material damage to the hydrologic balance outside the permit area. In
its July 1, 2003, letter, the WVDEP stated that it will consider the
numerical limits and water resource use designated by the water quality
programs to make its CHIAs. As discussed above in Finding 1, the
deletion of the definition of ``cumulative impact'' does not render the
West Virginia program less effective than the Federal regulations which
do not contain a definition of ``cumulative impact.''
In addition, the commenter stated, the original definition of
``cumulative impact'' requires that cumulative impacts be minimized.
The proposed deletion, the commenter stated, does away with this goal,
further weakening the proposed new regulations. We disagree. The State
performance standards at CSR 38-2-14.5 concerning hydrologic balance
provide that all surface mining and reclamation activities shall be
conducted to minimize the disturbance of the hydrologic balance within
the permit and adjacent area, and to prevent material damage to the
hydrologic balance outside the permit area.
The commenter also stated that the deletion of the definition of
``cumulative impact'' at CSR 38-2-2.39 and the addition of the
definition of ``material damage to the hydrologic balance'' at CSR 38-
2-3.22.e. combine to redefine ``material damage.'' The commenter stated
that the proposed definition of ``material damage to the hydrologic
balance'' refers to ``existing conditions and uses'' without stating
whether this phrase refers to ``existing uses'' as defined in the Clean
Water Act (CWA) or a plain English definition such as ``those
conditions currently found.'' If a new definition of ``material
damage'' is to be adopted, it should be clearly tied to ``existing
uses'' and ``designated uses'' as defined in the CWA, the commenter
stated. In response, the State's July 1, 2003, letter clearly links
``existing uses'' to the State's legislative rule at CSR 46-1
concerning

[[Page 67039]]

requirements governing stream uses and numerical water quality
standards that apply to those streams. While the proposed definition of
material damage only mentions existing uses, the State's water quality
standards at CSR 46-1 take into consideration both existing and
designated uses of streams. Therefore, as required by CSR 46-1, both
existing and designated uses will be considered when determining what
constitutes material damage to the hydrologic balance. In any case,
such changes are within the discretion of the State under the Federal
regulations.
The commenter stated that if OSM approves a new definition of
``material damage,'' it should be modified as follows: ``Material
damage to the hydrologic balance outside the permit areas means any
long term or permanent change in the hydrologic balance caused by
surface mining operation(s) which has a significant adverse impact on
the capability of the affected water resource(s) to support existing
uses and designated uses as defined by the Clean Water Act and as
implemented by the state's water quality standards.'' Otherwise, the
commenter stated, the definition as currently written would have as a
goal the maintenance of existing conditions--even if impacted water
bodies are already impaired--rather than the goal of protecting
existing and designated uses as required by the Clean Water Act. The
proposed changes would facilitate the further degradation of polluted
streams, the commenter asserted. In response, we believe that the State
has, as explained in its July 1, 2003, letter, linked its CHIA
requirements to the States identified uses of West Virginia streams and
the numerical water quality standards that apply to those streams.
Therefore, the State will consider both existing and designated uses
when making its determination of material damage.
4. A commenter stated that the deletion of the definition of
``cumulative impact'' would authorize WVDEP to perform CHIAs that do
not predetermine threshold limits or ranges in defining material damage
and that do not include each applicable numeric water quality standard
and effluent limitation among those limits and ranges. These
amendments, the commenter stated, are not in accordance with the
provisions of SMCRA, nor are they consistent with the Federal
regulations governing hydrologic protection. The changes thus fail to
meet the criteria for approval set forth at 30 CFR 732.15(a) and
732.17(h)(10), the commenter stated. The commenter also stated, in
response to the WVDEP's July 1, 2003, letter, that it is essential that
WVDEP set forth some objective criteria to use in performing CHIA's.
Unless WVDEP sets specific limits or ranges of cumulative impact
(whether based on biological, chemical, or other parameters), there can
be no ``objective criteria'' to determine whether a surface coal mining
operation has or has not materially damaged the ``use'' of a water
body. Indeed, the commenter stated, to implement effectively the
``use''-based material damage standard that WVDEP proposes, the agency
will necessarily have to establish threshold limits or ranges of
parameters that measure actual stream ``use'' in order to determine
objectively whether the hydrologic effect of a particular operation
meets or violates any narrative ``use'' standard in 46 CSR 1. At a
minimum, the commenter stated, monitoring plans for permits approved on
the basis of a biologically-based ``use'' standard would necessarily
have to establish specific thresholds and ranges of biological activity
in making such determinations. Thus, repeal of the current requirement
to predetermine ``threshold limits or ranges'' of cumulative impact
that constitute material damage to the hydrologic balance cannot be
justified by either the goal of establishing ``objective criteria'' or
the goal of shifting to use-based standard for material damage.
We disagree with the assertion that the proposed changes are not
consistent with SMCRA or the Federal regulations. It is our
understanding that under the proposed amendments, the WVDEP will
conduct CHIAs by considering the West Virginia legislative rules at CSR
46-1 to identify both the existing and designated uses and the
established numerical water quality standards for the streams and
stream segments in the cumulative impact area. The numerical water
quality standards identified in CSR 46-1 are, as WVDEP stated in its
July 1, 2003, letter, intended to protect the respective stream uses
that are identified in CSR 46-1. Therefore, it is the numerical water
quality standards that are the objective criteria that the WVDEP will
use in its assessment of whether the proposed mining operation is
designed to prevent material damage outside the permit area in
accordance with CSR 38-2-3.22.e. As noted in its July 1, 2003, letter,
the State also plans to adopt a use-based narrative standard to assess
material damage to the hydrologic balance. The WVDEP stated that this
approach considers the numerical limits and water resource use
designated by the water programs when making CHIAs. In any case, West
Virginia has the discretion under the Federal regulations to establish
or modify its CHIA process, without seeking OSM's approval, so long as
it remains consistent with Federal regulations. Therefore, to the
extent that these changes may broaden the State's discretion in its
CHIA process, it is still consistent with Federal regulations.
The commenter also stated that, at a minimum, OSM must require
WVDEP to explain how the WVDEP will require permittees to monitor
affected water bodies in a manner that produces data that can be ``used
to determine the impact of the operation on the hydrologic balance'' as
CSR 38-2-3.22.g and 38-2-3.22.h require. The proposed shift to a
``use''-based definition of material damage appears to make irrelevant
any measurement of the chemical or physical parameters mentioned in the
hydrologic monitoring provisions of the approved program, because those
parameters do not (at least directly) measure changes in the capability
of a water body to support a specific ``use.'' Since WVDEP does not
propose a change in the specifically required monitoring parameters,
the commenter stated, how will the WVDEP ensure that permittees develop
meaningful data for determining whether material damage has occurred?
In response, the State's shift to a ``use''-based definition of
material damage does not mean that the State has abandoned the use of
numerical water quality standards. Rather, the WVDEP has indicated that
the State is using the ``use'' designations of West Virginia streams as
identified in CSR 46-1 to identify the designated use of a stream or
stream segment, and to determine the numerical water quality standards
for those streams and stream segments. The use of CSR 46-1 allows the
WVDEP CHIA reviewers to clearly identify the numerical water quality
standards for West Virginia streams. The WVDEP stated in its July 1,
2003, letter that the State rules provide a narrative standard, based
upon use, for the reviewers to apply when making CHIA findings.
The commenter stated that, as noted in detail in their initial
comments on the proposed amendments (see Administrative Record Number
WV-1227), the proposed deletion of the ``cumulative impact'' definition
appears aimed at eliminating rather than establishing ``objective
criteria'' for determining whether a mining operation causes material
damage to the hydrologic balance. The commenter also stated that
without the existing requirement to predetermine threshold limits or
ranges, WVDEP's proposed definition of ``material damage''

[[Page 67040]]

establishes decidedly subjective criteria that will unquestionably
prove unenforceable. We disagree with this comment, because the State
regulations at CSR 46-1 clearly identify the specific numerical water
quality standards that apply to West Virginia's streams and stream
segments.
The commenter also stated that none of the terms used in the
definition of ``material damage'' (such as ``long term,''
``permanent,'' and ``capability'') is an objective criterion. Even if
WVDEP had defined these terms, the commenter stated, the WVDEP's
definitions of the terms would not have necessarily precluded the West
Virginia Surface Mine Board or the West Virginia courts from settling
on different definitions. The vague nature of the terms in the proposed
``material damage'' definition requires OSM to conclude that approval
of the proposed program amendments would render the West Virginia
program less effective than its Federal counterpart. First, there is no
Federal counterpart to the proposed definition, nor is there a Federal
requirement that the State establish objective criteria, or submit them
to OSM for approval. We agree with the comment that some of the words
in the definition of ``material damage to the hydrologic balance
outside the permit areas'' may appear to be vague and subject to
interpretation. However, the numerical water quality standards
presented in the regulations at CSR 46-1, which take into consideration
stream uses, are clear. Therefore, despite the vagueness of some words
in the definition, the State has clear numeric and use based standards
that the WVDEP has stated it will consider when performing a CHIA
determination.
In referring to the statements in the WVDEP's July 1, 2003, letter,
the commenter stated that nothing in the rulemaking record supports the
WVDEP's suggestion that the existing ``cumulative impact'' definition
leaves ``the threshold(s) to be assigned to the unguided discretion of
an individual reviewer.'' In actual practice, when WVDEP reviewers have
assigned ``threshold limits or ranges'' under the existing regulation,
they have drawn them from the established numeric West Virginia water
quality standards in Appendix E to CSR 46-1. WVDEP cites not even one
instance, the commenter stated, in which an ``individual reviewer'' has
assigned any ``threshold'' that does not appear in Appendix E. Even if
there have been such instances, the rational remedy would be to confine
the assignable threshold limits or ranges to those set forth in
Appendix E, rather than doing away with limits or ranges altogether. An
unrealized potential for abuse does not constitute a rational
justification for repealing West Virginia's ``cumulative impact''
definition, particularly in view of the State's ability to prevent
abuse without doing away with ``threshold limits or ranges'' entirely,
the commenter stated. The commenter is seeking OSM intervention into
the innerworkings of the State's CHIA process that Federal regulations
have left to the discretion of the States. In response, this comment
acknowledges WVDEP's current reliance on the water quality standards in
Appendix E of CSR 46-1. We believe that this is what the WVDEP stated
that it will do as part of its CHIA process in its July 1, 2003,
letter. That is, it stated that ``[t]he WVDEP approach considers the
numerical limits and water resource use designated by the water quality
programs to make the assessment required by the mining program.''
Requiring all CHIA reviewers to use the specific standards at CSR 46-1
should also eliminate WVDEP's concern that such standards would be
developed individually by the unguided discretion of individual
reviewers.
The commenter stated that WVDEP's claim that the proposed program
amendments will prevent development or utilization of thresholds or
parameters for effluent discharges other than those established by the
CWA program is a complete non sequitur. The threshold limits or ranges
required by the current definition of ``cumulative impact'' concern
determinations of ``material damage to the hydrologic balance.'' When
predetermined, such threshold limits or ranges apply to the water
quality of water bodies that receive effluent discharges from surface
coal mining and reclamation operations, not to effluent discharges
themselves. Thus, it is irrational to suggest that abandonment of the
requirement to predetermine threshold limits and ranges preclude
development or utilization of thresholds or parameters for effluent
discharges that might prove inconsistent with the CWA. Moreover, the
commenter stated, even if predetermination of ``threshold limits or
ranges'' might conceivably dictate effluent limitations that conflict
with West Virginia's program under the CWA, the only rational solution
to that problem would be to confine the selection of limits or ranges
to those that are consistent with proper implementation of the CWA, not
to abandon threshold limits or ranges altogether. In response, we
believe that by considering the numerical water quality standards in
CSR 46-1, as the WVDEP so indicated in its July 1, 2003, letter, the
WVDEP is in effect confining its consideration to those water quality
standards that are consistent with proper implementation of the CWA.
Furthermore, the State's water quality standards protect both aquatic
life and human health by designating uses and establishing specific
parameters and limits or ranges to protect such uses during mining.
The commenter stated that, absent a showing that the State's
enforcement of SMCRA's hydrologic protection requirements has suffered
from the absence of a ``use''-based material damage definition (rather
than non-enforcement of the existing ``cumulative impact'' definition),
the WVDEP's desire to shift to the sort of definition it previously
rejected (and which OSM has found inappropriate for inclusion in its
national regulations, the commenter stated) is arbitrary and
capricious, the commenter stated. We disagree with this comment. As we
stated above in Finding 2, OSM concluded that, because the gauges for
measuring material damage may vary from area to area, and from
operation to operation, the criteria for determining material damage
should be left to the States (48 FR 43956, 43972-43973; September 26,
1983). It is not inappropriate for the State to amend its procedures or
criteria for performing CHIAs and to amend those procedures as it deems
necessary. Seeking Federal approval of CHIA criteria is discretionary.
5. A commenter stated that WVDEP's perceived need to establish a
definition of ``material damage'' that is consistent with the
administration and implementation of West Virginia's counterpart to the
Clean Water Act, while rational in and of itself, does not provide a
rational justification for repealing the definition of ``cumulative
impact'' or shifting to an exclusively ``use''-based definition of
material damage. The commenter stated that West Virginia has adopted
numeric water quality standards that function hand-in-glove with the
State's narrative, ``use''-based water quality criteria. The only
rational method of ensuring that the CHIA process and enforcement of
SMCRA's hydrologic protection requirements are consistent with the
administration and implementation of West Virginia's counterpart to the
Clean Water Act, the commenter stated, would be to confine the
``threshold limits or ranges'' that WVDEP may predetermine under the
``cumulative impact'' definition to (1) The numeric water quality
standards applicable to each affected water body and (2) such
additional limits or ranges as WVDEP

[[Page 67041]]

may determine necessary to enforce applicable narrative water quality
criteria. Here again, the commenter stated, the perceived need to
ensure compatibility with the Clean Water Act simply does not justify
doing away with ``threshold limits or ranges'' that are an integral
part of the State's program under the Clean Water Act. In response, as
we stated above in Finding 2, the WVDEP's July 1, 2003, letter
acknowledges that the State intends to use a narrative-based use
standard in making its CHIAs. The WVDEP also stated in its July 1,
2003, letter, that the State approach will consider both water quality
numerical limits and water resources uses designated by the water
quality programs in making the CHIA required by the mining program.
6. A commenter stated that Congress imposed the CHIA requirement to
ensure that regulatory authorities do not approve permit applications
for mines that would make worse pollution overloads that already exist.
Congress certainly intended, the commenter stated, that SMCRA
regulatory authorities would perform CHIAs and make material damage
findings that are consistent with the letter and underlying purpose of
section 303(d) of the Clean Water Act, 33 U.S.C. 1313(d), which
requires the imposition of sharply reduced effluent limits or the
denial of National Pollutant Discharge Elimination System (NPDES)
permits in order to restore the quality of streams overloaded with
pollutants. The commenter referred to 30 U.S.C. 1292(a)(3) (requiring
construction of SMCRA to avoid superseding, amending, modifying, or
repealing the Clean Water Act).
In response, the WVDEP's July 1, 2003, letter did not address the
specific points made here by the commenter. However, CSR 46-1 clearly
sets forth the numerical water quality standards for streams and stream
segments in West Virginia. Additionally, CSR 46-1 does not provide for
or allow the discharge of pollutants that would make worse pollution
overloads that already exist. Furthermore, CSR 38-2-14.15.b, like 30
CFR 816/817.42, clearly provides that discharges from areas disturbed
by surface mining shall not violate effluent limitations or cause a
violation of applicable water quality standards. Therefore, we cannot
agree that it is the WVDEPs intention to allow discharges from mines
that would not comply with effluent limitations or make worse pollution
overloads that already exist.
7. A commenter stated that approval of the amendments at CSR 38-2-
2.39 and CSR 38-2-3.22.e. would impair or preclude effective citizen
participation in and OSM oversight of the administration and
enforcement of the West Virginia program. The commenter asserts that
the amendments at CSR 38-2-2.39 and CSR 38-2-3.22.e. replace
predetermined, quantitative material damage criteria with a vague,
subjective definition that would surely confound any citizen's effort
to independently detect or prove a violation of the standard. The cost
and restricted availability of experts whom a citizen would necessarily
have to retain in any attempt to prove a violation of such an amorphous
standard will almost certain chill public participation in its
enforcement well below the freezing level.
We disagree with this comment. None of the amendments that the
State is proposing affect in any way the public participation
provisions of the approved West Virginia program. In addition, as it
stated in its July 1, 2003, letter, the WVDEP will consider the
existing and designated uses and numerical water quality standards for
West Virginia streams and stream segments at CSR 46-1 when making
CHIAs. These numerical water quality standards are the predetermined,
quantitative standards with specific parameters and limits or ranges
that WVDEP's CHIA reviewers will consider in making CHIA
determinations, and that the public can use to monitor compliance.
8. One commenter addressed the amendments to CSR 38-2-5.2
concerning intermittent or perennial streams. The commenter stated
that, ``the changes delete three explicit requirements, and substitute
in their place the requirement that the activities will not adversely
affect ``the water quantity and quality or other environmental
resources of the stream'.'' The commenter stated that the amended rule
is sufficiently vague that the practice of burying intermittent or
perennial streams may arguably be approvable by the WVDEP, because
burying streams would not directly contradict the letter of the rule.
The commenter stated that, ``this clear attempt to weaken the existing
rule should be disapproved.''
As we discussed above in Finding 5, we have determined that as
amended, the revisions to section CSR 38-2-5.2.a. concerning
intermittent or perennial streams render that provision substantively
identical to the counterpart Federal regulations at 30 CFR 816.57(a)(1)
and (b). Therefore, we found that the amendments can be approved. We
also noted in Finding 5, that the State counterpart to the Federal
regulations at 30 CFR 816.57(a)(2) concerning stream channel diversions
was previously approved and is located at CSR 38-2-5.3.

Federal Agency Comments

Under 30 CFR 732.17(h)(11)(i) and section 503(b) of SMCRA, we
requested comments on the amendments from various Federal agencies with
an actual or potential interest in the West Virginia program by letters
dated May 30, 2001 and July 25, 2003 (Administrative Record Numbers WV-
1215 and WV-1367, respectively).
By letter dated June 25, 2001 (Administrative Record Number WV-
1224), the U.S. Fish and Wildlife Service (USFWS) provided the
following comments.
1. CSR 38-2-2.39 Definition of Cumulative Impact
The USFWS stated that the deletion of the definition of
``cumulative impact'' as meaning the hydrologic impact that results
from the cumulation of flows from all coal mining sites to common
channels or aquifers is a serious concern to the USFWS. The USFWS also
stated that it is also concerned with the deletion of the language of
that definition that states cumulative impact should be minimized.
The USFWS stated that cumulative impact assessments are required by
the National Environmental Policy Act (NEPA) and by the Council on
Environmental Quality's (CEQ) regulations requiring agencies to address
cumulative effects. As stated in the CEQ regulations for implementing
NEPA, the USFWS stated, cumulative effects are defined as the impact on
the environment which results from the incremental impact of the action
when added to other past, present, and reasonably foreseeable future
actions regardless of what agency or person undertakes such other
actions. ``We have ongoing concern,'' USFWS stated, ``for the
cumulative impacts occurring from individual mountaintop mining
operations on the ecological functioning of entire watersheds and
believe that the law should address this very important issue more
thoroughly rather than with less scrutiny.'' The USFWS recommended that
these changes not be approved.
In response, the deletion of the definition of ``cumulative
impact'' does not mean that the WVDEP will not be conducting cumulative
hydrologic impact assessments. CSR 38-2-3.22.e continues to require the
WVDEP to conduct a CHIA that is sufficient to determine whether the
proposed mining operation has been designed to prevent material damage
to the hydrologic balance outside the permit area. In

[[Page 67042]]

addition, the State regulations continue to require the permit
applicant to provide probable hydrologic consequences (PHC) information
(at 38-2-3.22.a) and to provide surface and groundwater monitoring
plans (CSR 38-2-3.22.g and 3.22.h, respectively). The State's
regulations continue to contain, at CSR 38-2-2.39, the definition of
cumulative impact area. In addition, the State explained in its July 1,
2003, letter, that the WVDEP's CHIA process considers the numerical
limits and water resource uses designated at CSR 46-1 to make the
required CHIA. Therefore, under the approved State program, the State
will continue to evaluate cumulative hydrologic impacts. Furthermore,
actions of State regulatory authorities under their approved State coal
regulatory programs are not subject to NEPA review.
2. CSR 38-2-3.22.e Definition of Material Damage to the Hydrologic
Balance
The USFWS stated that in the new language added to CSR 38-2-
3.22.e., the terms ``long term'' and ``significant adverse impact'' are
not defined and therefore are open to individual interpretation. The
USFWS recommended that this subsection contain a definition of these
terms. Also, the USFWS stated, this definition effectively eliminates
any consideration of short-term impacts to the hydrologic balance with
no regard to the degree of those impacts. The USFWS further stated that
it considers the elimination of any consideration of short-term impacts
to be ``a serious shortcoming in protection of fish and wildlife
resources.'' The USFWS recommended that these changes not be approved.
In response, there are, indeed, undefined words in the definition
of ``material damage to the hydrologic balance outside the permit
areas.'' However, the State's use of such words as ``long term'' and
``significant adverse impact'' in defining material damage does not
render the State's definition less effective than SMCRA or the Federal
regulations, because there is no Federal counterpart to this term. In
accordance with SMCRA and the Federal regulations, the State provision
requires a CHIA to determine whether the proposed operation has been
designed to prevent material damage outside the permit area. Finally,
the State's proposed definition does not supersede or prohibit
compliance with any State or Federal water quality standards.
Furthermore, short-term impacts will be considered. The NPDES effluent
limitations established for a proposed permit will apply, as will all
applicable State and Federal water quality standards. As we noted above
in Finding 2, we determined that the definition of ``material damage to
the hydrologic balance outside the permit areas'' does not render the
West Virginia program less effective than the Federal CHIA regulations
and can be approved.
3. CSR 38-2-5.2.a Intermittent or Perennial Stream
The USFWS stated that it opposes the changes to this provision. The
USFWS specifically objected to the deletion of the language that
required that mining activity within one hundred feet of an
intermittent or perennial stream not adversely affect the normal flow
or gradient of the stream, adversely affect fish migration or related
environmental values or materially damage water quantity or quality.
The USFWS stated that given that hundreds of miles of West Virginia's
headwater streams have been permanently filled as a result of surface
coal mining, it believes that protection of aquatic resources should be
strengthened in the West Virginia program. The USFWS recommended that
these changes not be approved. In response, and as we stated above in
Finding 5, as amended, section CSR 38-2-5.2.a. is substantively
identical to the counterpart Federal regulations at 30 CFR 816.57(a)(1)
and (b) and can be approved. We also noted that the State counterpart
to the Federal regulations at 30 CFR 816.57(a)(2) concerning stream
diversions was previously approved and is located at CSR 38-2-5.3.
By letter dated August 27, 2003, and an e-mail message dated August
19, 2003 (Administrative Record Numbers WV-1375 and WV-1374,
respectively), the U.S. Department of Labor, Mine Safety and Health
Administration (MSHA) responded and stated that it has reviewed the
additions and changes, and has determined that there is no
inconsistency with MSHA's regulations. Most of the changes pertain to
hydrologic impacts of mining and do not affect MSHA programs.

Environmental Protection Agency (EPA) Comments/Concurrence

Under 30 CFR 732.17(h)(11)(ii), we are required to 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 May 29, 2003, we asked for concurrence on the amendments from
EPA (Administrative Record Number WV-1214). On November 23, 2001
(Administrative Record Number WV-1252) EPA sent us its written
concurrence with comments. EPA stated that there are no apparent
inconsistencies with the CWA, NPDES regulations, or other statutes and
regulations under the authority of EPA. EPA said that it is providing
its concurrence with the understanding that implementation of the
amendments must comply with the CWA, NPDES regulations, and other
statutes and regulations under its authority. On July 25, 2003, we
asked the EPA for its concurrence on the July 1, 2003, letter from the
WVDEP that provided further clarification concerning proposed
amendments regarding cumulative impact, material damage, and
government-financed construction at CSR 38-2-2.39, 3.22.e, and 3.31.c,
respectively (Administrative Record Number WV-1368). On August 19,
2003, EPA sent us its written concurrence with comments (Administrative
Record Number WV-1372).
In its August 19, 2003, letter, EPA stated that WVDEP's
clarification letter addresses ``cumulative impact'' and ``material
damage,'' two of the issues that the EPA had concerns and
recommendations. EPA stated that it feels that its recommendations on
these issues as well as others addressed in its November 23, 2001,
letter still have merit and should be considered for inclusion.
Nevertheless, EPA stated, WVDEP's July 1, 2003, clarification letter
stresses its commitment to require compliance with water quality
standards, EPA's main concern.
EPA provided the following comments on the proposed amendments in
its November 23, 2001, letter.
1. CSR 38-2-2.39 Definition of Cumulative Impact
EPA recommended that the definition of cumulative impact not be
deleted, and that wording be added to the definition to clarify that it
includes impacts from past, present, and reasonably foreseeable future
activities. EPA stated that it is concerned that the deletion of the
definition would leave that term cumulative impact vague and would
subject it to individual interpretation. EPA stated that this could
result in less environmental focus during preparation of a CHIA which
is required for new mining operations. EPA stated that where cumulative
impacts are large enough to cause non-compliance with water quality
standards, including the anti-degradation policy, they constitute a
violation of the CWA, even if the NPDES permits require compliance with

[[Page 67043]]

applicable technology-based effluent guideline limits.
As we noted above in Finding 1, the deletion of the definition of
``cumulative impact'' does not render the West Virginia program less
effective because there is no Federal definition of cumulative impact
as the term relates to CHIA. We also noted that the State's existing
definition of ``cumulative impact area'' at CSR 38-2-2.39 clearly
states that cumulative impact area means the area, including the permit
area, within which impacts resulting from the proposed mining operation
may interact with the impacts of all anticipated mining on surface and
groundwater systems. The State's definition of ``cumulative impact
area'' was determined earlier to be substantively identical to the
counterpart Federal definition of ``cumulative impact area'' at 30 CFR
701.5. We believe that the impacts due to past mining are captured via
the surface and ground water baseline data required by CSR 38-2-3.22.
Therefore, in its CHIA assessment, the State will be considering the
impacts from past, present, and anticipated future mining operations in
the cumulative impact area. The WVDEP's July 1, 2003, letter further
clarified that other sections of the State rules require the applicant
to show no material outside the permit area and to assess cumulative
impacts within the cumulative impact area. We concur with EPA's comment
that where cumulative impacts are large enough to cause non-compliance
with water quality standards, including the anti-degradation policy,
they could constitute a violation of the CWA, even if the NPDES permits
require compliance with applicable technology-based effluent guideline
limits.
2. CSR 38-2-3.22.e Definition of ``Material Damage'' Added to This
Provision
EPA recommended that the definition of material damage be expanded
to include ``violation of water quality standards.'' EPA stated that
water quality standards require protection of designated uses as well
as existing uses, compliance with anti-degradation policy, and do not
exempt short term adverse impacts. We agree that water quality
standards require protection of designated uses as well as existing
uses, compliance with anti-degradation policy, and do not exempt short
term adverse impacts. In its July 1, 2003, letter, the WVDEP stated
that the WVDEP approach considers the numerical water quality limits
and the water resource use designated by the water quality programs.
The WVDEP further stated that the uses are outlined in the State's
rules at CSR 46-1. Under SMCRA and the Federal regulations, the purpose
of the CHIA is to determine, for permit approval purposes, whether the
proposed operation has been designed to prevent material damage to the
hydrologic balance outside the permit area. We believe, as discussed
above in Finding 2, that the State's program amendment does not render
the West Virginia program less effective than the Federal CHIA
provisions and can be approved.
3. CSR 38-2-3.32.g Unanticipated Event or Condition
EPA stated that, although unanticipated remining discharges may not
be a cause for blocking future SMCRA permits, it wants to make sure
that it is understood that remining companies are not exempt from NPDES
permit violations which may arise from unanticipated discharges. EPA
stated that where there may be a question about a potential
unanticipated discharge during remining, such as release of water
caused by breaking into an adjacent abandoned mine pool, EPA
recommended that pre-remining exploration, boreholing, and reviewing of
old mine maps be conducted to minimize this possibility. We concur that
remining operations are not exempt from NPDES permit violations that
arise from unanticipated discharges, and that appropriate pre-mining
exploration should be conducted to minimize the possibility of breaking
into adjacent abandoned mine pools. The State's approved program would
allow such exploration if it is deemed necessary during remining
operations.
4. CSR 38-2-5.2.a Intermittent or Perennial Stream Buffer Zones
EPA recommended that the entire current definition be retained,
since it is more comprehensive about measures for environmental
protection. EPA also stated that the most important part of the
definition has been kept--the requirement for compliance with water
quality standards. EPA stated that the proposed wording which prohibits
adverse effects on water quantity and quality and other environmental
resources should provide an added measure of environmental protection,
with one exception--the proposed change from ``or'' to ``and'' in
reference to ``water quantity or quality.'' EPA stated that the
proposed word ``and'' implies that there must be adverse effects to
both water quantity and quality before the activities are prohibited.
EPA recommended keeping the word ``or'' which clarifies that adverse
effects to either water quantity or quality are prohibited. EPA also
stated that the proposed deletion of adverse effects on stream gradient
and fish migration, as a reason for prohibiting surface mining
activities, appears to be designed to accommodate construction of
valley fills. EPA stated that filling of the waters of the U.S.
requires authorization under Section 404 of the CWA. As we stated above
in Finding 5, the State's proposed stream buffer zone requirements at
CSR 38-2-5.2.a (along with CSR 38-2-5.3) are substantively identical to
the counterpart Federal regulations at 30 CFR 816/817.57(a) and,
therefore, can be approved. In addition, there is nothing in the
proposed amendment that prevents or prohibits compliance with section
404 of the Clean Water Act.

V. OSM's Decision

Based on the findings above, we are approving the amendments to the
West Virginia program sent to us on May 2, 2001, and clarified by
letter dated July 1, 2003. However, we are deferring our decision on
the amendments at CSR 38-2-3.31.a and c regarding funding for
government-financed construction until the State adds counterparts to
the Federal regulations at 30 CFR 707.5 and 874.17.
To implement this decision, we are amending the Federal regulations
at 30 CFR part 948, which codify decisions concerning the West Virginia
program. We find that good cause exists under 5 U.S.C. 553(d)(3) to
make this final rule effective immediately. Section 503(a) of SMCRA
requires that a State program demonstrate that such State has the
capability of carrying out the provisions of the Act and meeting its
purposes. Making this rule effective immediately will expedite that
process. SMCRA requires consistency of State and Federal standards.

VI. Procedural Determinations

Executive Order 12630--Takings

This rule does not have takings implications. This determination is
based on the analysis performed for the counterpart Federal regulation.

Executive Order 12866--Regulatory Planning and Review

This rule is exempt from review by the Office of Management and
Budget under Executive Order 12866.

Executive Order 12988--Civil Justice Reform

The Department of the Interior has conducted the reviews required
by section 3 of Executive Order 12988 and has determined that this rule
meets the

[[Page 67044]]

applicable standards of subsections (a) and (b) of that section.
However, these standards are not applicable to the actual language of
State regulatory programs and program amendments because each program
is drafted and promulgated by a specific State, not by OSM. Under
sections 503 and 505 of SMCRA (30 U.S.C. 1253 and 1255) and the Federal
regulations at 30 CFR 730.11, 732.15, and 732.17(h)(10), decisions on
proposed State regulatory programs and program amendments submitted by
the States must be based solely on a determination of whether the
submittal is consistent with SMCRA and its implementing Federal
regulations and whether the other requirements of 30 CFR parts 730,
731, and 732 have been met.

Executive Order 13132--Federalism

This rule does not have Federalism implications. SMCRA delineates
the roles of the Federal and State governments with regard to the
regulation of surface coal mining and reclamation operations. One of
the purposes of SMCRA is to ``establish a nationwide program to protect
society and the environment from the adverse effects of surface coal
mining operations.'' Section 503(a)(1) of SMCRA requires that State
laws regulating surface coal mining and reclamation operations be ``in
accordance with'' the requirements of SMCRA, and section 503(a)(7)
requires that State programs contain rules and regulations ``consistent
with'' regulations issued by the Secretary pursuant to SMCRA.

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

In accordance with Executive Order 13175, we have evaluated the
potential effects of this rule on Federally-recognized Indian tribes
and have determined that the rule does not have substantial direct
effects on one or more Indian tribes, on the relationship between the
Federal Government and Indian tribes, or on the distribution of power
and responsibilities between the Federal Government and Indian tribes.
The basis for this determination is our decision is on a State
regulatory program and does not involve Federal regulations involving
Indian lands.

Executive Order 13211--Regulations That Significantly Affect the
Supply, Distribution, or Use of Energy

On May 18, 2001, the President issued Executive Order 13211 which
requires agencies to prepare a Statement of Energy Effects for a rule
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 expected to have a significant
adverse effect on the supply, distribution, or use of energy, a
Statement of Energy Effects is not required.

National Environmental Policy Act

This rule does not require an environmental impact statement
because section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that
agency decisions on proposed State regulatory program provisions do not
constitute major Federal actions within the meaning of section
102(2)(C) of the National Environmental Policy Act (42 U.S.C.
4332(2)(C)).

Paperwork Reduction Act

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

Regulatory Flexibility Act

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

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 upon the analysis performed
under various laws and executive orders for the counterpart Federal
regulations.

Unfunded Mandates

This rule will not impose an unfunded mandate on State, local, or
tribal governments or the private sector of $100 million or more in any
given year. This determination is based upon the analysis performed
under various laws and executive orders for the counterpart Federal
regulations.

List of Subjects in 30 CFR Part 948

Intergovernmental relations, Surface mining, Underground mining.

Dated: November 17, 2003.
Brent Wahlquist,
Regional Director, Appalachian Regional Coordinating Center.

? For the reasons set out in the preamble, title 30, chapter VII,
subchapter T of the Code of Federal Regulations is amended as set forth
below:

PART 948--WEST VIRGINIA

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

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

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

Sec. 948.15 Approval of West Virginia regulatory program amendments.

* * * * *

----------------------------------------------------------------------------------------------------------------
Date of publication of
Original amendment submission date final rule Citation/description of approved provisions
----------------------------------------------------------------------------------------------------------------

* * * * * * *
May 2, 2001, July 1, 2003.......... December 1, 2003........... CSR 38-2-2.39 (a deletion), 3.22.e, 3.31.a
(deferral), 3.32.g, 5.2.a, and 11.3.a.3.
----------------------------------------------------------------------------------------------------------------

[[Page 67045]]

[FR Doc. 03-29757 Filed 11-28-03; 8:45 am]
BILLING CODE 4310-05-P

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