50244 Federal Register / Vol. 70, No. 165 / Friday, August 26, 2005 / Proposed Rules 

Example. Employer A provides HDHP 

coverage through its cafeteria plan. Employer 

A automatically contributes to the HSA of 

each employee who is an eligible individual 

with HDHP coverage through the cafeteria 

plan. Employees make no election with 

respect to Employer A’s HSA contributions 

and have no right to receive cash or other 

taxable benefits in lieu of the HSA 

contributions. Employer A contributes only 

to the HSAs of employees who have elected 

HDHP coverage through the cafeteria plan. 

The comparability rules apply to Employer 

A’s HSA contributions because the HSA 

contributions are not made through the 

cafeteria plan.

Q–4. If under the employer’s cafeteria 

plan, employees who are eligible 

individuals and who participate in 

health assessments, disease 

management programs or wellness 

programs receive an employer 

contribution to an HSA, unless the 

employees elect cash, are the 

contributions subject to the 

comparability rules? 

A–4. No. The comparability rules do 

not apply to employer contributions to 

an HSA made through a cafeteria plan. 

See Q & A–1 in this section. 

Q–5. May all or part of the excise tax 

imposed under section 4980G be 

waived? 

A–5. In the case of a failure which is 

due to reasonable cause and not to 

willful neglect, all or a portion of the 

excise tax imposed under section 4980G 

may be waived to the extent that the 

payment of the tax would be excessive 

relative to the failure involved. See 

sections 4980G(b) and 4980E(c).

Mark E. Matthews, 

Deputy Commissioner for Services and 

Enforcement.

[FR Doc. 05–16941 Filed 8–25–05; 8:45 am] 

BILLING CODE 4830–01–P

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation 

and Enforcement 

30 CFR Part 948 

[WV–106–FOR] 

West Virginia Regulatory Program

AGENCY: Office of Surface Mining 

Reclamation and Enforcement (OSM), 

Interior.

ACTION: Proposed rule; public comment 

period and opportunity for public 

hearing on proposed amendment. 

SUMMARY: We are announcing receipt of 

a proposed amendment to the West 

Virginia regulatory program (the West 

Virginia program) under the Surface 

Mining Control and Reclamation Act of 

1977 (SMCRA or the Act). West Virginia 

proposes revisions to the Code of West 

Virginia (W. Va. Code) and the Code of 

State Regulations (CSR) as authorized by 

several bills passed during the State’s 

2005 Legislative Session. West Virginia 

is also proposing an amendment that 

affects the State’s regulations 

concerning erosion protection zones 

(EPZ) associated with durable rock fills. 

The State is revising its program to be 

consistent with certain corresponding 

Federal requirements, and to include 

other amendments at its own initiative. 

The amendments include, among other 

things, changes to the State’s surface 

mining and blasting regulations as 

authorized by Committee Substitute for 

House Bill 2723; various statutory 

changes to the State’s approved program 

as a result of the passage of Committee 

Substitute for House Bill 3033 and 

House Bills 2333 and 3236; the 

submission of a draft policy regarding 

the State’s EPZ requirement and 

requesting that the Office of Surface 

Mining (OSM) reconsider its previous 

decision concerning EPZ; State water 

rights and replacement policy 

identifying the timing of water supply 

replacement; the revised Permittee’s 

Request For Release form; and the 

submission of a Memorandum of 

Agreement (MOA) between the West 

Virginia Department of Environmental 

Protection (WVDEP), Division of Mining 

and Reclamation, and the West Virginia 

Division of Natural Resources, Wildlife 

Resources Section that is intended to 

partially resolve a required program 

amendment relating to planting 

arrangements for Homestead postmining land use.

DATES: We will accept written 

comments on this amendment until 4 

p.m. (local time), on September 26, 

2005. If requested, we will hold a public 

hearing on the amendment on 

September 20, 2005. We will accept 

requests to speak at a hearing until 4 

p.m. (local time), on September 12, 

2005.

ADDRESSES: You may submit comments, 

identified by WV–106–FOR, by any of 

the following methods: 

• E-mail: chfo@osmre.gov. Include 

WV–106–FOR in the subject line of the 

message; 

• Mail/Hand Delivery: Mr. Roger W. 

Calhoun, Director, Charleston Field 

Office, Office of Surface Mining 

Reclamation and Enforcement, 1027 

Virginia Street, East, Charleston, West 

Virginia 25301; or 

• Federal eRulemaking Portal: http://

www.regulations.gov. Follow the 

instructions for submitting comments. 

Instructions: All submissions received 

must include the agency docket number 

for this rulemaking. For detailed 

instructions on submitting comments 

and additional information on the 

rulemaking process, see the ‘‘Public 

Comment Procedures’’ heading in the 

SUPPLEMENTARY INFORMATION section of 

this document. You may also request to 

speak at a public hearing by any of the 

methods listed above or by contacting 

the individual listed under FOR FURTHER

INFORMATION CONTACT.

Docket: You may review copies of the 

West Virginia program, this amendment, 

a listing of any scheduled public 

hearings, and all written comments 

received in response to this document at 

the addresses listed below during 

normal business hours, Monday through 

Friday, excluding holidays. You may 

also receive one free copy of this 

amendment by contacting OSM’s 

Charleston Field Office listed below. 

Mr. Roger W. Calhoun, Director, 

Charleston Field Office, Office of 

Surface Mining Reclamation and 

Enforcement, 1027 Virginia Street, East, 

Charleston, West Virginia 25301, 

Telephone: (304) 347–7158. E-mail: 

chfo@osmre.gov.

West Virginia Department of 

Environmental Protection, 601 57th 

Street, SE, Charleston, West Virginia 

25304, Telephone: (304) 926–0490. 

In addition, you may review a copy of 

the amendment during regular business 

hours at the following locations: 

Office of Surface Mining Reclamation 

and Enforcement, Morgantown Area 

Office, 75 High Street, Room 229, P.O. 

Box 886, Morgantown, West Virginia 

26507, Telephone: (304) 291–4004. (By 

Appointment Only) 

Office of Surface Mining Reclamation 

and Enforcement, Beckley Area Office, 

323 Harper Park Drive, Suite 3, Beckley, 

West Virginia 25801, Telephone: (304) 

255–5265.

FOR FURTHER INFORMATION CONTACT: Mr. 

Roger W. Calhoun, Director, Charleston 

Field Office, Telephone: (304) 347–

7158. Internet: chfo@osmre.gov.

SUPPLEMENTARY INFORMATION:

I. Background on the West Virginia Program 

II. Description of the Proposed Amendment 

III. Public Comment Procedures 

IV. Procedural Determinations

I. Background on the West Virginia 

Program 

Section 503(a) of the Act permits a 

State to assume primacy for the 

regulation of surface coal mining and 

reclamation operations on non-Federal 

and non-Indian lands within its borders 

by demonstrating that its program 

includes, among other things, ‘‘* * * a 

Federal Register / Vol. 70, No. 165 / Friday, August 26, 2005 / Proposed Rules 50245

State law which provides for the 

regulation of surface coal mining and 

reclamation operations in accordance 

with the requirements of the Act * * *; 

and rules and regulations consistent 

with regulations issued by the Secretary 

pursuant to the Act.’’ See 30 U.S.C. 

1253(a)(1) and (7). On the basis of these 

criteria, the Secretary of the Interior 

conditionally approved the West 

Virginia program on January 21, 1981. 

You can find background information 

on the West Virginia program, including 

the Secretary’s findings, the disposition 

of comments, and conditions of 

approval of the West Virginia program 

in the January 21, 1981, Federal 

Register (46 FR 5915). You can also find 

later actions concerning West Virginia’s 

program and program amendments at 30 

CFR 948.10, 948.12, 948.13, 948.15, and 

948.16. 

II. Description of the Proposed 

Amendment 

By letters dated June 13, 2005 

(Administrative Record Numbers WV–

1419, WV–1420, and WV–1421), the 

WVDEP submitted amendments to its 

program under SMCRA (30 U.S.C. 1201 

et seq.). The amendments consist of 

several bills passed during West 

Virginia’s 2005 Legislative Session and 

a draft policy concerning EPZ associated 

with durable rock fills. 

House Bill (HB) 2333 amends the W. 

Va. Code by adding new Article 27 

entitled the Environmental Good 

Samaritan Act (Sections 22–27–1 

through 22–27–12). HB 2333 was 

adopted by the Legislature on March 24, 

2005, and signed into law by the 

Governor on April 6, 2005, with an 

effective date of June 22, 2005. In its 

letter, the WVDEP stated that HB 2333 

establishes a program to encourage 

voluntary reclamation of lands 

adversely affected by mining activities 

by limiting the liability that could arise 

as a result of the voluntary reclamation 

of abandoned lands or reduction 

abatement of water pollution. 

Committee Substitute for HB 2723 

authorizes (at paragraph g) amendments 

to the West Virginia Surface Mining 

Reclamation Rules at CSR 38–2 and (at 

paragraph i) amendments to the Surface 

Mining Blasting Rule at CSR 199–1. 

This bill was passed by the Legislature 

on April 8, 2005, and approved by the 

Governor on May 3, 2005, with an 

effective date from the date of passage. 

We note that some of the amendments 

to CSR 38–2 and CSR 199–1 are 

intended to address required program 

amendments that are codified in the 

Federal regulations at 30 CFR 948.16(a), 

(sss), (wwww), (fffff), (iiiii), (jjjjj), 

(kkkkk), (lllll), (ooooo), (ppppp), and 

(rrrrr). 

Committee Substitute for HB 3033 

amends the West Virginia Surface Coal 

Mining and Reclamation Act 

(WVSCMRA) at W. Va. Code Section 

22–3–11 concerning the State’s special 

reclamation tax. This bill was passed by 

the Legislature on April 1, 2005, and 

signed by the Governor on April 18, 

2005, with an effective date of April 1, 

2005. In its letter, the WVDEP stated 

that HB 3033 extends the temporary 

special reclamation tax that funds the 

State’s alternative bonding system for an 

additional 18 months (at W. Va. Code 

22–3–11(h)(1)) and provides additional 

duties for the WVDEP Secretary in 

managing the State’s alternative bonding 

system (at W. Va. Code 22–3–11(h)(2), 

(3), and (4)). We note that OSM 

previously approved West Virginia’s 

temporary special reclamation tax on 

December 28, 2001 (66 FR 67446), with 

additional modification on May 29, 

2002 (67 FR 37610, 37613–37614). The 

State’s current extension of that 

temporary tax by an additional 18 

months does not need OSM’s specific 

approval because the State has only 

lengthened the time period of the 

temporary tax. Except as discussed 

below, the State has not modified any 

duties or functions under the approved 

West Virginia program, and the change 

is in keeping with the intent of our 

original approvals. Therefore, we are not 

seeking public comment on the State’s 

extension of the temporary tax from 

thirty nine to fifty seven months at W. 

Va. Code 22–3–11(h)(1). The extension 

took effect from the date of passage of 

Committee Substitute for HB 3033, on 

April 1, 2005. In addition, we are not 

seeking public comment on the State’s 

new language at W. Va. Code 22–3–

(h)(3) and (h)(4). These new provisions 

only direct the Secretary of the WVDEP 

to conduct various studies and 

authorize the Secretary of the WVDEP to 

propose legislative rules concerning its 

bonding program as appropriate. These 

provisions do not modify any duties or 

functions under the approved West 

Virginia program and do not, therefore, 

require OSM’s approval. However, we 

are seeking public comment on the 

State’s provisions at W. Va. Code 22–3–

11(h)(2)(A) and (B). Under these new 

provisions, the WVDEP Secretary will 

be required to pursue cost effective 

alternative water treatment strategies; 

and conduct formal actuarial studies 

every two years and conduct informal 

reviews annually on the Special 

Reclamation Fund.

HB 3236 amends the WVSCMRA by 

adding new W. Va. Code Section 22–3–

11a concerning the special reclamation 

tax, and adding new Section 22–3–32a 

concerning the special tax on coal. HB 

3236 was passed by the Legislature on 

April 9, 2005, and approved by the 

Governor on May 2, 2005, with an 

effective date of April 9, 2005. HB 3236 

provides that the special reclamation tax 

and the special tax, which is used to 

administer the State’s approved 

regulatory program, are applicable to 

thin seam coal, and the special 

reclamation tax is subject to the WV Tax 

Crimes and Penalties Act and the WV 

Tax Procedure and Administration Act. 

In addition, WVDEP, submitted 

Committee Substitute for HB 3033 

which contains strikethroughs and 

underscoring showing the actual 

language that has been added and 

deleted from the WVSCMRA, as a result 

of the passage of Enrolled Committee 

Substitute for HB 3033 discussed above 

(Administrative Record Number WV–

1422). 

WVDEP submitted a MOA dated 

September 2003, between the WVDEP, 

Division of Mining and Reclamation, 

and the West Virginia Division of 

Natural Resources, Wildlife Resources 

Section (Administrative Record Number 

WV–1405). This MOA outlines 

responsibilities of both agencies in 

reviewing surface and underground coal 

mining permit applications; evaluating 

lands unsuitable for mining petitions; 

developing wildlife planting plans as 

part of reclamation plans of permit 

applications; and restoring, protecting 

and enhancing fish and wildlife on 

mined lands within the State. The MOA 

was developed in response to a 30 CFR 

Part 732 (Part 732) notification issued 

by OSM on March 6, 1990, 

(Administrative Record Number WV–

834) in which OSM stated that the State 

program did not require that minimum 

stocking and planting arrangements be 

specified by the regulatory authority on 

the basis of local and regional 

conditions and after consultation with 

and approval by State agencies 

responsible for the administration of 

forestry and wildlife programs as 

required by 30 CFR 816/817.116(b)(3)(i). 

The West Virginia Division of Forestry 

has concurred with the State’s tree 

stocking and groundcover standards at 

CSR 38–2–9.8.g. However, OSM 

maintains that the Wildlife Resources 

Section still has to concur with the 

wildlife planting arrangement 

standards. The WVDEP submitted the 

MOA in response to that part of the 

outstanding Part 732 notification and, as 

discussed below, to satisfy part of an 

outstanding required amendment at 30 

CFR 948.16(ooooo). 

The Federal regulations at 30 CFR 

948.16(ooooo) provide that the WVDEP 

50246 Federal Register / Vol. 70, No. 165 / Friday, August 26, 2005 / Proposed Rules 

must consult with and obtain the 

approval of the West Virginia Division 

of Forestry and the Wildlife Resources 

Section of the West Virginia Division of 

Natural Resources on the new stocking 

standards and planting arrangements for 

Homesteading at CSR 38–2–7.5.o.2. The 

submission of the MOA is to resolve the 

part of the required amendment relating 

to planting arrangements. The State also 

revised its rules earlier at CSR 38–2–

9.3.g to provide that a professional 

wildlife biologist employed by the 

Division of Natural Resources must 

develop the planting plan. OSM 

approved that revision in the Federal 

Register on February 8, 2005 (70 FR 

6582). WVDEP advised OSM that it has 

consulted with the Division of Forestry 

concerning the stocking standards for 

Homesteading. According to WVDEP, 

the Division of Forestry will be 

submitting a letter explaining its 

position with regard to those stocking 

standards (Administrative Record 

Number WV–1423). Upon receipt of the 

letter, it will be included in the 

Administrative Record and made 

available for public review. 

WVDEP also submitted the 

Permittee’s Request for Release form 

dated March 2005 (Administrative 

Record Number WV–1424). This form is 

being submitted in response to an OSM 

Part 732 notification dated July 22, 1997 

(Administrative Record Number WV–

1071). In that notification, OSM advised 

the State that the Federal regulations at 

30 CFR 800.40(a)(3) were amended to 

require that each application for bond 

release include a written, notarized 

statement by the permittee affirming 

that all applicable reclamation 

requirements specified in the permit 

have been completed. OSM notified 

WVDEP that the State regulations at 

CSR 38–2–12.2 do not contain such a 

requirement. In response, the State 

revised its bond release form by adding 

new item Number 11, which requires 

that all copies of the Permittee’s Request 

For Release form include the following: 

‘‘11. A notarized statement by the 

permittee that all applicable reclamation 

requirements specified in the permit 

have been completed.’’

The full text of the program 

amendment is available for you to read 

at the locations listed above under 

ADDRESSES. 

Specifically, West Virginia proposes 

the following amendments. 

1. House Bill 2333 

HB 2333 amends the W. Va. Code by 

adding a new article Sections 22–27–1 

through 12 to provide as follows:

Article 27. Environmental Good Samaritan 

Act 

22–27–1. Declaration of policy and 

purpose. 

This article is intended to encourage the 

improvement of land and water adversely 

affected by mining, to aid in the protection 

of wildlife, to decrease soil erosion, to aid in 

the prevention and abatement of the 

pollution of rivers and streams, to protect 

and improve the environmental values of the 

citizens of this state and to eliminate or abate 

hazards to health and safety. It is the intent 

of the Legislature to encourage voluntary 

reclamation of lands adversely affected by 

mining. The purpose of this article is to 

improve water quality and to control and 

eliminate water pollution resulting from 

mining extraction or exploration by limiting 

the liability which could arise as a result of 

the voluntary reclamation of abandoned 

lands or the reduction and abatement of 

water pollution. This article is not intended 

to limit the liability of a person who by law 

is or may become responsible to reclaim the 

land or address the water pollution or anyone 

who by contract, order or otherwise is 

required to or agrees to perform the 

reclamation or abate the water pollution. 

22–27–2. Legislative findings. 

The Legislature finds and declares as 

follows: 

(1) The state’s long history of mining has 

left some lands and waters unreclaimed and 

polluted. 

(2) These abandoned lands and polluted 

waters are unproductive, diminish the tax 

base and are serious impediments to the 

economic welfare and growth of this state. 

(3) The unreclaimed lands and polluted 

waters present a danger to the health, safety 

and welfare of the people and the 

environment. 

(4) The state of West Virginia does not 

possess sufficient resources to reclaim all the 

abandoned lands and to abate the water 

pollution. 

(5) Numerous landowners, citizens, 

watershed associations, environmental 

organizations and governmental entities who 

do not have a legal responsibility to reclaim 

the abandoned lands or to abate the water 

pollution are interested in addressing these 

problems but are reluctant to engage in such 

reclamation and abatement activities because 

of potential liabilities associated with the 

reclamation and abatement activities. 

(6) It is in the best interest of the health, 

safety and welfare of the people of this state 

and the environment to encourage 

reclamation of the abandoned lands and 

abatement of water pollution. 

(7) That this act will encourage and 

promote the reclamation of these properties. 

22–27–3. Definitions. 

As used in this article unless used in a 

context that clearly requires a different 

meaning, the term: 

(a) ‘‘Abandoned lands’’ means land 

adversely affected by mineral extraction and 

left or abandoned in an unreclaimed or 

inadequately reclaimed condition. 

(b) ‘‘Consideration’’ means something of 

value promised, given or performed in 

exchange for something which has the effect 

of making a legally enforceable contract. For 

the purpose of this article, the term does not 

include a promise to a landowner to repair 

damage caused by a reclamation project or 

water pollution abatement project when the 

promise is made in exchange for access to the 

land. 

(c) ‘‘Department’’ means the West Virginia 

department of environmental protection. 

(d) ‘‘Eligible land’’ means land adversely 

affected by mineral extraction and left or 

abandoned in an unreclaimed or 

inadequately reclaimed condition or causing 

water pollution and for which no person has 

a continuing reclamation or water pollution 

abatement obligation. 

(e) ‘‘Eligible landowner’’ means a 

landowner that provides access to or use of 

the project work area at no cost for a 

reclamation or water pollution abatement 

project who is not or will not become 

responsible under state or federal law to 

reclaim the land or address the water 

pollution existing or emanating from the 

land. 

(f) ‘‘Eligible project sponsor’’ means a 

person that provides equipment, materials or 

services at no cost or at cost for a reclamation 

or water pollution abatement project who is 

not or will not become responsible under 

state or federal law to reclaim the land or 

address the water pollution existing or 

emanating from the land.

(g) ‘‘Landowner’’ means a person who 

holds either legal or equitable interest in real 

property. 

(h) ‘‘Mineral’’ means any aggregate or mass 

of mineral matter, whether or not coherent, 

which is extracted by mining. This includes, 

but is not limited to, limestone, dolomite, 

sand, gravel, slate, argillite, diabase, gneiss, 

micaceous sandstone known as bluestone, 

rock, stone, earth, fill, slag, iron ore, zinc ore, 

vermiculite, clay and anthracite and 

bituminous coal. 

(i) ‘‘Permitted activity site’’ means a site 

permitted by the department of 

environmental protection under the 

provisions of article two, three or four of this 

chapter. 

(j) ‘‘Person’’ means a natural person, 

partnership, association, association 

members, corporation, an agency, 

instrumentality or entity of federal or state 

government or other legal entity recognized 

by law as the subject of rights and liabilities. 

(k) ‘‘Project work area’’ means that land 

necessary for a person to complete a 

reclamation project or a water pollution 

abatement project. 

(l) ‘‘Reclamation project’’ means the 

restoration of eligible land to productive use 

by regrading and revegetating the land to 

stable contours that blend in and 

complement the drainage pattern of the 

surrounding terrain with no highwalls, spoil 

piles or depressions to accumulate water, or 

to decrease or eliminate discharge of water 

pollution. 

(m) ‘‘Water pollution’’ means the manmade or man-induced alteration of the 

chemical, physical, biological and 

radiological integrity of water located in the 

state. 

(n) ‘‘Water pollution abatement facilities’’

means the methods for treatment or 

abatement of water pollution located on 

Federal Register / Vol. 70, No. 165 / Friday, August 26, 2005 / Proposed Rules 50247

eligible lands. These methods include, but 

are not limited to, a structure, system, 

practice, technique or method constructed, 

installed or followed to reduce, treat or abate 

water pollution. 

(o) ‘‘Water pollution abatement project’’

means a plan for treatment or abatement of 

water pollution located on eligible lands. 

22–27–4. Eligibility and project inventory. 

(a) General rule.—An eligible landowner or 

eligible project sponsor who voluntarily 

provides equipment, materials or services at 

no charge or at cost for a reclamation project 

or a water pollution abatement project in 

accordance with the provisions of this article 

is immune from civil liability and may raise 

the protections afforded by the provisions of 

this article in any subsequent legal 

proceeding which is brought to enforce 

environmental laws or otherwise impose 

liability. An eligible landowner or eligible 

project sponsor is only entitled to the 

protections and immunities provided by this 

article after meeting all eligibility 

requirements and compliance with a detailed 

written plan of the proposed reclamation 

project or water pollution abatement project 

which is submitted to and approved by the 

department. The project plan shall include 

the objective of the project and a description 

of the work to be performed to accomplish 

the objective and shall, additionally, identify 

the project location, project boundaries, 

project participants and all landowners. 

(b) Notice.—The department shall give 

written notice by certified mail to adjacent 

property owners and riparian land owners 

located downstream of the proposed project, 

provide Class IV public notice of the 

proposed project in a newspaper of general 

circulation, published in the locality of the 

proposed project, and shall give public notice 

in the state register. The project sponsor may 

also provide public notice. Any person 

having an interest which may be adversely 

affected by the proposed project has the right 

to file written objections to the department 

within thirty days after receipt of the written 

notice or within thirty days after the last 

publication of the Class IV notice. The 

department shall provide to the project 

sponsor a copy of each written objection 

received during the public comment period, 

which shall conclude at the expiration of the 

applicable thirty-day period provided for in 

this section. 

(c) Advice.—The department may provide 

advice to the landowner or to other interested 

persons based upon the department’s 

knowledge and experience in performing 

reclamation projects and water pollution 

abatement projects. 

(d) Departmental review.—The department 

shall review each proposed reclamation 

project and approve the project if the 

department determines the proposed project: 

(1) Will result in the appropriate 

reclamation and regrading of the land 

according to all applicable laws and 

regulations; 

(2) Will result in the appropriate 

revegetation of the site; 

(3) Is not likely to result in pollution as 

defined in article eleven of this chapter; and 

(4) Is likely to improve the water quality 

and is not likely to make the water pollution 

worse. 

(e) Project inventory.—The department 

shall develop and maintain a system to 

inventory and record each project, the project 

location and boundaries, each landowner and 

each person identified in a project plan 

provided to the department. The inventory 

shall include the results of the department’s 

review of the proposed project and, where 

applicable, include the department’s findings 

under subsection (b), section ten of this 

article.

(f) Appeal.—A person aggrieved by a 

department decision to approve or 

disapprove a reclamation project or a water 

pollution abatement project has the right to 

file an appeal with the environmental quality 

board under the provisions of article one, 

chapter twenty-two-b of this code. 

22–27–5. Landowner liability limitation 

and exceptions. 

(a) General rule.—Except as specifically 

provided in subsections (b) and (c) of this 

section, an eligible landowner who provides 

access to the land, without charge or other 

consideration, which results in the 

implementation of a reclamation project or a 

water pollution abatement project: 

(1) Is immune from liability for any injury 

or damage suffered by persons working under 

the direct supervision of the project sponsor 

while such persons are within the project 

work area; 

(2) Is immune from liability for any injury 

to or damage suffered by a third party which 

arises out of or occurs as a result of an act 

or omission of the project sponsor which 

occurs during the implementation of the 

reclamation project or the water pollution 

abatement project; 

(3) Is immune from liability for any injury 

to or damage suffered by a third party which 

arises out of or occurs as a result of a 

reclamation project or a water pollution 

abatement project; 

(4) Is immune from liability for any 

pollution resulting from a reclamation project 

or water pollution abatement project; 

(5) Is immune from liability for the 

operation, maintenance or repair of the water 

pollution abatement facilities constructed or 

installed during the project unless the 

eligible landowner negligently damages or 

destroys the water pollution abatement 

facilities or denies access to the project 

sponsor who is responsible for the operation, 

maintenance or repair the water pollution 

abatement facilities. 

(b) Duty to warn.—The eligible landowner 

shall warn the project sponsor of known, 

latent, dangerous conditions located on the 

project work area which are not the subject 

of the reclamation project or the water 

pollution abatement project. Nothing in this 

article shall limit an eligible landowner’s 

liability which results from the eligible 

landowner’s failure to warn of such known, 

latent, dangerous conditions. 

(c) Exceptions to immunity.—Nothing in 

this article may limit an eligible landowner’s 

liability which results from a reclamation 

project or water pollution abatement project 

and which would otherwise exist: 

(1) For injury or damage resulting from the 

landowner’s acts or omissions which are 

reckless or constitute gross negligence or 

willful misconduct. 

(2) Where the landowner accepts or 

requires consideration for allowing access to 

the land for the purpose of implementing a 

reclamation project or water pollution 

abatement project or to operate, maintain or 

repair water pollution abatement facilities 

constructed or installed during a water 

pollution abatement project. 

(3) For the landowner’s unlawful activities. 

(4) For damage to adjacent landowners or 

downstream riparian landowners which 

results from a reclamation project or water 

pollution abatement project where written 

notice or public notice of the proposed 

project was not provided. 

22–27–6. Project sponsor liability 

limitation and exceptions. 

(a) General rule.—Except as specifically 

provided in subsection (b) of this section, a 

project sponsor who provides equipment, 

materials or services at no cost or at cost for 

a reclamation project or a water pollution 

abatement project: 

(1) Is immune from liability for any injury 

to or damage suffered by a person which 

arises out of or occurs as a result of the water 

pollution abatement facilities constructed or 

installed during the water pollution 

abatement project; 

(2) Is immune from liability for any 

pollution emanating from the water pollution 

abatement facilities constructed or installed 

during the water pollution abatement project 

unless the person affects an area that is 

hydrologically connected to the water 

pollution abatement project work area and 

causes increased pollution by activities 

which are unrelated to the implementation of 

a water pollution abatement project, 

Provided that the project sponsor 

implements, operates, and maintains the 

project in accordance with the plans 

approved by the department; 

(3) Is immune from liability for the 

operation, maintenance and repair of the 

water pollution abatement facilities 

constructed or installed during the water 

pollution abatement project. 

(b) Exceptions.—

(1) Nothing in this article shall limit in any 

way the liability of a project sponsor which 

liability results from the reclamation project 

or the water pollution abatement project and 

which would otherwise exist: 

(A) For injury or damage resulting from the 

project sponsor’s acts or omissions which are 

reckless or constitute gross negligence or 

willful misconduct. 

(B) For the person’s unlawful activities.

(C) For damages to adjacent landowners or 

downstream riparian landowners which 

result from a reclamation project or a water 

pollution abatement project where written 

notice or public notice of the proposed 

project was not provided. 

(2) Nothing in this article shall limit in any 

way the liability of a person who the 

department has found to be in violation of 

any other provision or provisions of this 

chapter. 

22–27–7. Permits and zoning. 

Nothing in this article may be construed as 

waiving any existing permit requirements or 

waiving any local zoning requirements. 

22–27–8. Relationship to federal and state 

programs. 

50248 Federal Register / Vol. 70, No. 165 / Friday, August 26, 2005 / Proposed Rules 

The provisions of this article shall not 

prevent the department from enforcing 

requirements necessary or imposed by the 

Federal Government as a condition to 

receiving or maintaining program 

authorization, delegation, primacy or federal 

funds. 

22–27–9. General permits. 

If the department determines it will further 

the purposes of this article, the department 

may issue a general permit for each 

reclamation project or water pollution 

abatement project, which shall: 

(1) Encompass all of the activities included 

in the reclamation project or water pollution 

abatement project. 

(2) Be issued in place of any individual 

required stream encroachment, earth 

disturbance or national pollution discharge 

elimination system permits. 

22–27–10. Exceptions. 

(a) General rule.—Any person who under 

existing law shall be or may become 

responsible to reclaim the land or treat or 

abate the water pollution or any person who 

for consideration or who receives some other 

benefit through a contract or any person who 

through a consent order and agreement or is 

ordered to perform or complete reclamation 

or treat or abate water pollution as well as 

a surety which provided a bond for the site 

is not eligible nor may receive the benefit of 

the protections and immunities available 

under this article. 

(b) Projects near mining or coal refuse 

sites.—This article does not apply to a 

reclamation project or a water pollution 

abatement project that is located adjacent to, 

hydrologically connected to or in close 

proximity to a site permitted under articles 

two, three or four of this chapter unless: 

(1) The reclamation project or water 

pollution abatement project is submitted to 

the department in writing before the project 

is started; and 

(2) The department finds: 

(A) The reclamation project or the water 

pollution abatement project will not 

adversely affect the permittee’s obligations 

under the permit and the applicable law; 

(B) The activities on the project work area 

cannot be used by the permittee to avoid the 

permittee’s reclamation or water pollution 

treatment or abatement obligations; and 

(3) The department issues a written notice 

of its findings and the approval of the project. 

(c) Projects in lieu of civil or administrative 

penalties.—This article shall not apply to a 

reclamation project or a water pollution 

abatement project that is performed in lieu of 

paying civil or administrative penalties. 

22–27–11. Water supply replacement. 

A public or private water supply affected 

by contamination or the diminution caused 

by the implementation of a reclamation 

project or the implementation of a water 

pollution abatement project shall be restored 

or replaced by the department with an 

alternate source of water adequate in quantity 

and quality for the purposes served by the 

water supply. 

22–27–12. Rules. 

The department may propose legislative 

rules in accordance with article three, 

chapter twenty-nine-a of this code as needed 

to implement the provisions of this article.

2. Committee Substitute for House Bill 

2723 

This bill authorizes amendments to 

the West Virginia Surface Mining 

Reclamation Rules at CSR 38–2 and the 

Surface Mining Blasting Rule at CSR 

199–1. 

Amendments to CSR 38–2 

a. CSR 38–2–2.92. This definition is 

new, and provides as follows:

2.92 Previously mined areas means land 

affected by surface mining operations prior to 

August 3, 1977, that has not been reclaimed 

to the standards of this rule.

In its amendment, the WVDEP stated 

that the revision is intended to resolve 

an outstanding Part 732 issue relating to 

previously mined areas.

b. CSR 38–2–3.29.a. This provision 

concerns incidental boundary revisions 

(IBRs) and is amended by deleting the 

following language from the end of the 

first sentence: ‘‘is the only practical 

alternative to recovery of unanticipated 

reserves or necessary to enhance 

reclamation efforts or environmental 

protection.’’

In its submittal of this amendment, 

the WVDEP stated that the amendment 

in intended to delete language that was 

not approved by OSM (see the February 

9, 1999, Federal Register, 64 FR 6201, 

at Finding 10, page 6208). 

As amended, CSR 38–2–3.29.a 

provides as follows:

3.29.a. Incidental Boundary Revisions 

(IBRs) shall be limited to minor shifts or 

extensions of the permit boundary into noncoal areas or areas where any coal extraction 

is incidental to or of only secondary 

consideration to the intended purpose of the 

IBR or where it has been demonstrated to the 

satisfaction of the Secretary that limited coal 

removal on areas immediately adjacent to the 

existing permit. IBRs shall also include the 

deletion of bonded acreage which is 

overbonded by another valid permit and for 

which full liability is assumed in writing by 

the successive permittee. Incidental 

Boundary Revisions shall not be granted for 

any prospecting operations, or to abate a 

violation where encroachment beyond the 

permit boundary is involved, unless an equal 

amount of acreage covered under the IBR for 

encroachment is deleted from the permitted 

area and transferred to the encroachment 

area.

c. CSR 38–2–5.4.a. This provision 

concerns general sediment control 

provisions, and is amended by adding 

language to incorporate by reference the 

U.S. Department of Agriculture, Soil 

Conservation Service (now known as 

the Natural Resources Conservation 

Service), Technical Release No. 60, 

‘‘Earth Dams and Reservoirs.’’ As 

amended, Subsection 5.4.a provides as 

follows:

Sediment control or other water retention 

structures shall be constructed in appropriate 

locations for the purposes of controlling 

sedimentation. All runoff from the disturbed 

area shall pass through a sedimentation 

control system. All such systems or other 

water retaining structures used in association 

with the mining operation shall be designed, 

constructed, located, maintained, and used in 

accordance with this rule and in such a 

manner as to minimize adverse hydrologic 

impacts in the permit and adjacent areas, to 

prevent material damage outside the permit 

area and to assure safety to the public. The 

U.S. Department of Agriculture, Soil 

Conservation Service Technical Release No. 

60 (210–VI–TR60, October 1985), ‘‘Earth 

Dams and Reservoirs,’’ Technical Release No. 

60 (TR–60) is hereby incorporated by 

reference. Copies may be obtained from the 

National Technical Information Service 

(NTIS), 5285 Port Royal Road, Springfield, 

Virginia 22161, order No. PB 87–57509/AS. 

Copies can be inspected at the OSM 

Headquarters Office, Office of Surface Mining 

Reclamation and Enforcement, 

Administrative Record, 1951 Constitution 

Avenue, NW., Washington, DC, or at the 

Office of the Federal Register, 800 North 

Capitol Street, NW., suite 700, Washington, 

DC.

d. CSR 38–2–5.4.b.9. This provision 

concerns freeboard of sediment control 

structures, and is amended by adding a 

proviso that impoundments meeting the 

Class B or C criteria for dams in ‘‘Earth 

Dams and Reservoirs’’, TR–60 shall 

comply with the freeboard hydrograph 

criteria in ‘‘Minimum Emergency 

Spillway Hydrologic Criteria’’ table in 

TR–60. As amended, Subsection 5.4.b.9 

provides as follows:

5.4.b.9. Provide adequate freeboard to 

resist overtopping by waves or sudden 

increases in volume and adequate slope 

protection against surface erosion and 

sudden drawdown. Provided, however, 

impoundments meeting the Class B or C 

criteria for dams in ‘‘Earth Dams and 

Reservoirs’’, TR–60 shall comply with the 

freeboard hydrograph criteria in ‘‘Minimum 

Emergency Spillway Hydrologic Criteria’’

table in TR–60.

e. CSR 38–2–5.4.b.10. This provision 

concerns minimum static safety factor, 

and has been amended by deleting 

language in the first sentence related to 

loss of life or property damage, and 

adding in its place language concerning 

impoundments meeting the Class B or C 

criteria for dams contained in ‘‘Earth 

Dams and Reservoirs,’’ TR–60. As 

amended, Subsection 5.4.b.10 provides 

as follows:

5.4.b.10. Provide that an impoundment 

meeting the size or other criteria of 30 CFR 

77.216(a) or W. Va. Code [Section] 22–14 et 

seq., or Impoundments meeting the Class B 

or C criteria for dams contained in ‘‘Earth 

Dams and Reservoirs’’, TR–60, shall have a 

minimum static safety factor of 1.5 for a 

normal pool with steady state seepage 

Federal Register / Vol. 70, No. 165 / Friday, August 26, 2005 / Proposed Rules 50249

saturation conditions, and a seismic safety 

factor of at least 1.2. Impoundments not 

meeting the size or other criteria of 30 CFR 

77.216 (a) or W. Va. Code [Section] 22–14 et 

seq., except for a coal mine waste 

impounding structure, and located where 

failure would not be expected to cause loss 

of life or serious property damage shall have 

a minimum static safety factor of 1.3 for a 

normal pool with steady state seepage 

saturation conditions.

f. CSR 38–2–5.4.b.12. This provision 

concerns stable foundations of sediment 

control structures, and has been 

amended by adding language at the end 

of the final sentence to clarify that the 

laboratory testing of foundation material 

shall be performed to determine the 

design requirements for foundation 

stability. As amended, Subsection 

5.4.b.12 provides as follows:

5.4.b.12. Provide for stable foundations 

during all phases of construction and 

operation and be designed based on adequate 

and accurate information on the foundation 

conditions. For structures meeting the 

criteria of paragraph 5.4.b.10 of this 

subdivision, provide foundation 

investigations and any necessary laboratory 

testing of foundation material, shall be 

performed to determine the design 

requirements for foundation stability.

g. CSR 38–2–5.4.c.7. This provision is 

new and provides as follows:

5.4.c.7. Impoundments meeting the Class B 

or C criteria for dams in Earth Dams and 

Reservoirs, TR–60 shall comply with the 

following: (1) ‘‘Minimum Emergency 

Spillway Hydrologic Criteria’’ table in TR–

60; (2) the emergency spillway hydrograph 

criteria in the ‘‘Minimum Emergency 

Spillway Hydrologic Criteria’’ table in TR–

60, or larger event specified by the Secretary; 

and (3) and the requirements of this 

subdivision.

h. CSR 38–2–5.4.d.4. This provision, 

concerning design and construction 

certification of coal refuse 

impoundments and embankment type 

impoundments, has been amended by 

adding language concerning 

impoundments meeting the Class B or C 

criteria for dams. As amended, 

Subsection 5.4.d.4 provides as follows:

5.4.d.4. Design and construction 

certification of coal refuse impoundments 

and embankment type impoundments 

meeting or exceeding the size requirements 

or other criteria of Federal MSHA regulations 

at 30 CFR 77.216 (a) or impoundments 

meeting the Class B or C criteria for dams in 

Earth Dams and Reservoirs, TR–60 may be 

performed only by a registered professional 

engineer experienced in the design and 

construction of impoundments.

i. CSR 38–2–5.4.e.1. This provision 

concerns the inspection of 

impoundments and sediment control 

structures, and has been amended by 

adding language concerning 

impoundments meeting the Class B or C 

criteria for dams. As amended, 

Subsection 5.4.e.1 provides as follows:

5.4.e.1. A qualified registered professional 

engineer or other qualified professional 

specialist, under the direction of the 

professional engineer, shall inspect each 

impoundment or sediment control structure 

provided, that a licensed land surveyor may 

inspect those impoundments or sediment 

control or other water retention structures 

which do not meet the size or other criteria 

of 30 CFR 77.216(a), Impoundments meeting 

the Class B or C criteria for dams in Earth 

Dams and Reservoirs, TR–60 or W. Va. Code 

[Section] 22–14 et seq., and which are not 

constructed of coal processing waste or coal 

refuse. The professional engineer, licensed 

land surveyor, or specialist shall be 

experienced in the construction of 

impoundments and sediment control 

structures.

j. CSR 38–2–5.4.f. This provision 

concerns examinations of embankments, 

and has been amended by adding 

language concerning impoundments 

meeting the Class B or C criteria for 

dams. As amended, Subsection 5.4.f 

provides as follows:

5.4.f. Examinations. Embankments subject 

to Federal MSHA regulations at 30 CFR 

77.216 or impoundments meeting the Class B 

or C criteria for dams in Earth Dams and 

Reservoirs, TR–60 must be examined in 

accordance with 77.216–3 of said regulations. 

Other embankments shall be examined at 

least quarterly by a qualified person 

designated by the operator for appearance of 

structural weakness and other hazardous 

conditions. Examination reports shall be 

retained for review at or near the operation.

In its submittal of the amendments 

concerning sediment control or other 

water retention structures, the WVDEP 

stated that the amendments are 

intended to resolve the outstanding Part 

732 issue that impoundments meeting 

the Class B or C criteria for dams in 

Earth Dams and Reservoirs, TR–60, 

comply with (1) the freeboard criteria in 

TR–60, (2) have a minimum static safety 

factor of 1.5 for a normal pool with 

steady-state seepage saturation 

conditions, and a seismic safety factor of 

at least 1.2, (3) emergency spillway 

hydrologic criteria and the emergency 

spillway hydrograph criteria in TR–60, 

and (4) specify the certification, 

inspections, and examinations of 

requirements of these structures (see the 

Part 732 letter dated July 22, 1997, 

Administrative Record Number WV–

1071). The WVDEP stated that the 

Federal counterpart is found in 30 CFR 

816.49 concerning impoundments. 

k. CSR 38–2–7.4.b.1.A.1. This 

provision concerns the development of 

a planting plan and long-term 

management plan for commercial 

forestry. The first sentence of this 

provision is amended by clarifying that 

the professional forester must be a West 

Virginia registered professional forester. 

l. CSR 38–2–7.4.b.1.A.3. This 

provision concerns the commercial 

species plan for commercial forestry and 

is amended in the first sentence to 

clarify that the registered professional 

forester must be a West Virginia 

registered professional forester. 

m. CSR 38–2–7.4.b.1.A.3.(b). This 

provision concerns the creation of a 

certified geology map relating to 

commercial forestry areas. The 

provision is amended by revising the 

kinds of information pertaining to 

physical and chemical properties of 

strata that must be provided in the 

permit application. As amended, 

Subsection 7.4.b.1.A.3.(b) provides as 

follows:

7.4.b.1.A.3.(b). An approved geologist shall 

create a certified geology map showing the 

location, depth, and volume of all strata in 

the mined area, the physical and chemical 

properties of each stratum to include rock 

texture, pH, potential acidity and alkalinity. 

For each stratum proposed as soil medium, 

the following information shall also be 

provided: total soluble salts, degree of 

weathering, extractable levels of phosphorus, 

potassium, calcium, magnesium, manganese, 

and iron and other properties required by the 

Secretary to select best available materials for 

mine soils.

In its submittal of its amendment to 

this provision, the WVDEP stated that 

the amendment is to clarify that only 

the material proposed to be the resulting 

soil medium needs the additional 

analysis. 

n. CSR 38–2–7.4.b.1.A.4. This 

provision concerns the commercial 

forestry long-term management plan and 

is amended in the first sentence by 

adding the words ‘‘West Virginia’’

immediately before the words 

‘‘registered professional forester.’’

o. CSR 38–2–7.4.b.1.B.1. This 

provision concerns a commercial 

forestry and forestry reclamation plan, 

and is amended by deleting the word 

‘‘certified’’ immediately before the 

phrase ‘‘professional soil scientist’’ in 

the first sentence. 

In its submittal of its amendment to 

this provision, the WVDEP stated that 

the word ‘‘certified’’ is being deleted 

because West Virginia does not have a 

certification system for soil scientist. 

p. CSR 38–2–7.4.b.1.C.1. This 

provision concerns commercial forestry 

areas, and is amended by adding the 

word ‘‘areas’’ immediately following the 

words ‘‘commercial forestry’’ in the first 

sentence, and by revising the standards 

for slopes of the postmining landform. 

As amended, Subsection 7.4.b.1.C.1 

provides as follows:

50250 Federal Register / Vol. 70, No. 165 / Friday, August 26, 2005 / Proposed Rules 

7.4.b.1.C.1. For commercial forestry areas, 

the Secretary shall assure that the postmining 

landscape is rolling, and diverse. The backfill 

on the mine bench shall be configured to 

create a postmining topography that includes 

the principles of land forming (e.g., the 

creation of swales) to reflect the premining 

irregularities in the land. Postmining 

landform shall provide a rolling topography 

with slopes between 5% and 20% with an 

average slope of 10% to 15%. The elevation 

change between the ridgeline and the valleys 

shall be varied. The slope lengths shall not 

exceed 500 feet. The minimum thickness of 

backfill, including mine soil, placed on the 

pavement of the basal seam mined in any 

particular area shall be ten (10) feet.

q. CSR 38–2–7.4.b.1.C.2. This 

provision concerns commercial forestry 

areas and is amended by adding the 

word ‘‘areas’’ immediately after the 

phrase ‘‘commercial forestry’’ in the first 

sentence. 

r. CSR 38–2–7.4.b.1.C.3. This 

provision concerns commercial forestry 

areas and is amended by deleting the 

words ‘‘in areas’’ in the first sentence 

adding the word ‘‘areas’’ in their place. 

s. CSR 38–2–7.4.b.1.C.4. This 

provision concerns commercial forestry 

areas and is amended by adding the 

word ‘‘areas’’ immediately following the 

words ‘‘commercial forestry’’ in the first 

sentence. In addition, the first sentence 

is also amended by deleting the word 

‘‘permitted’’ and replacing that word 

with the words ‘‘commercial forestry.’’

t. CSR 38–2–7.4.b.1.C.5. This 

provision concerns forestry areas and is 

amended by adding the word ‘‘areas’’

immediately after the word ‘‘forestry’’ in 

the first sentence. 

The WVDEP stated in its submittal 

that this change has been made to 

‘‘address a concern of the QA/QC Panel 

that the Configuration of regrade area is 

still too flat (Reference: Directors 

Meeting October 15, 2003).’’

u. CSR 38–2–7.4.b.1.D.6. This 

provision concerns soil substitutes, and 

is amended by adding the words ‘‘and 

is in accordance with 14.3.c of this rule’’

at the end of the first sentence. As 

amended, the first sentence at CSR 38–

2–7.4.b.1.D.6 provides as follows:

7.4.b.1.D.6. Before approving the use of soil 

substitutes, the Secretary shall require the 

permittee to demonstrate that the selected 

overburden material is suitable for restoring 

land capability and productivity and is in 

accordance with 14.3.c of this rule.

The WVDEP stated in its submittal 

that this change has been made to 

comply with the required program 

amendment codified in the Federal 

regulations at 30 CFR 948.16(wwww). 

The Federal regulations at 30 CFR 

948.16(wwww) provide that CSR 38–2–

7.4.b.1.D.6 be amended to provide that 

the substitute material is equally 

suitable for sustaining vegetation as the 

existing topsoil and the resulting 

medium is the best available in the 

permit area to support vegetation. 

v. CSR 38–2–7.4.b.1.D.8. This 

provision concerns the final surface 

material used as the commercial forestry 

mine soil and has been amended in the 

first sentence by adding the word 

‘‘areas’’ immediately after the phrase 

‘‘[f]or commercial forestry.’’

w. CSR 38–2–7.4.b.1.D.9. This 

provision concerns the final surface 

material used as the forestry mine soil 

and has been amended in the first 

sentence by adding the word ‘‘areas’’

immediately after the phrase ‘‘[f]or 

forestry.’’

x. CSR 38–2–7.4.b.1.D.11. This 

provision concerns forestry mine soil, 

and has been amended by adding the 

phrase ‘‘except for valley fill faces’’ at 

the end of the sentence. As amended, 

Subsection 7.4.b.1.D.11 provides that 

‘‘[f]orestry mine soil shall, at a 

minimum, be placed on all areas 

achieving AOC, except for valley fill 

faces.’’

In its submittal, the WVDEP stated 

that the amendment is intended to 

provide clarification. 

y. CSR 38–2–7.4.b.1.H.1. This 

provision concerns tree species and 

compositions for commercial forestry 

areas and forestry areas. The list of 

hardwoods in this provision is amended 

by deleting ‘‘white and red oaks, other 

native oaks’’ and adding in their place 

‘‘white oak, chestnut oak, northern red 

oak, and black oak’’ and by adding the 

words ‘‘basswood, cucumber magnolia’’

to the list. In addition, the word ‘‘areas’’

is added immediately following the 

words ‘‘[f]or forestry’’ in the third 

sentence. In addition, the list of 

hardwoods for forestry areas is amended 

by deleting the words ‘‘white and red 

oaks, other native oaks’’ and adding in 

their place the words ‘‘white oak, 

chestnut oak, northern red oak, black 

oak,’’ and by adding ‘‘basswood’’ and 

‘‘cucumber magnolia’’ to the list. As 

amended, Subsection 7.4.b.1.H.1 

provides as follows:

7.4.b.1.H.1. Commercial tree and nurse tree 

species selection shall be based on sitespecific characteristics and long-term goals 

outlined in the forest management plan and 

approved by a registered professional 

forester. For commercial forestry areas, the 

Secretary shall assure that all areas suitable 

for hardwoods are planted with native 

hardwoods at a rate of 500 seedlings per acre 

in continuous mixtures across the permitted 

area with at least six (6) species from the 

following list: white oak, chestnut oak, 

northern red oak, black oak, white ash, 

yellow-poplar, basswood, cucumber 

magnolia, black walnut, sugar maple, black 

cherry, or native hickories. For forestry areas, 

the Secretary shall assure that all areas 

suitable for hardwoods are planted with 

native hardwoods at a rate of 450 seedlings 

per acre in continuous mixtures across the 

permitted area with at least three (3) or four 

(4) species from the following list: white oak, 

chestnut oak, northern red oak, black oak, 

white ash, yellow-poplar, basswood, 

cucumber magnolia, black walnut, sugar 

maple, black cherry, or native hickories.

In its submittal of the amendment to 

this provision, the WVDEP stated that 

the amendment is intended to provide 

clarification for oaks and mixtures. 

z. CSR 38–2–7.4.b.1.H.2. This 

provision has been amended in the first 

sentence by adding the word ‘‘areas’’

immediately after the phrase ‘‘[f]or 

commercial forestry.’’

aa. CSR 38–2–7.4.b.1.H.6. This 

provision has been amended in the first 

sentence by adding the word ‘‘areas’’

immediately after the phrase ‘‘[f]or 

commercial forestry.’’

bb. CSR 38–2–7.4.b.1.I.1. Subsection 

7.4.b.1.I.1 has been amended in the last 

sentence by deleting the word 

‘‘certified’’ immediately before the 

words ‘‘soil scientist’’ and adding in its 

place the word ‘‘professional.’’ As 

amended, the sentence provides as 

follows: ‘‘[b]efore approving Phase I 

bond release, a professional soil 

scientist shall certify, and the Secretary 

shall make a written finding that the 

mine soil meets these criteria.’’

cc. CSR 38–2–7.4.b.1.I.2. Subsection 

7.4.b.1.I.2 has been amended in two 

places by adding the word ‘‘areas.’’ The 

first sentence has been amended by 

adding the word ‘‘areas’’ immediately 

after the phrase ‘‘for commercial 

forestry.’’ The second from last sentence 

has been amended by adding the word 

‘‘areas’’ immediately after the phrase 

‘‘both commercial forestry and forestry.’’

dd. CSR 38–2–7.4.b.1.I.3. Subsection 

7.4.b.1.I.3 has been amended in three 

places by adding the word ‘‘areas.’’ The 

first sentence has been amended by 

adding the word ‘‘areas’’ immediately 

after the phrase ‘‘for commercial forestry 

and forestry.’’ The second sentence has 

been amended by adding the word 

‘‘areas’’ immediately after the words 

‘‘[f]or forestry.’’ The third sentence has 

been amended by adding the word 

‘‘areas’’ immediately after the phrase 

‘‘for commercial forestry.’’

ee. CSR 38–2–7.4.b.1.I.4. This 

provision concerns a commercial 

forestry mitigation plan, and has been 

amended in the last sentence by adding 

the phrase ‘‘and the site meets the 

standards of 9.3.h of this rule’’ at the 

end of the sentence. In addition, the 

word ‘‘and’’ has been deleted in the last 

sentence immediately after the phrase 

‘‘follow the provisions of this rule’’ and 

Federal Register / Vol. 70, No. 165 / Friday, August 26, 2005 / Proposed Rules 50251

that word has been replaced by a 

semicolon. 

In its submittal of the amendment to 

this provision, the WVDEP stated that in 

an August 18, 2000, Federal Register

notice (65 FR 50409, see pages 50423 

and 50424), OSM stated that the 

requirement to pay twice the remaining 

bond is approved to the extent that 

payment of the civil penalty will not 

allow an other to receive final release. 

The WVDEP stated that the remainder of 

7.4.1.I.4 was not approved. 

ff. CSR 38–2–7.4.b.1.J. This provision 

concerns the front faces of valley fills 

and has been amended by deleting 

existing Subsections 7.4.b.1.J.1.(b) and 

(c) and re-designating existing 

Subsections 7.4.b.1.J.1.(d) and (e) as 

new Subsections 7.4.b.1.J.1.(b) and (c). 

As amended, Subsection 7.4.b.1.J. 

provides as follows:

7.4.b.1.J. Front Faces of Valley Fills. 

7.4.b.1.J.1. Front faces of valley fills shall 

be exempt from the requirements of this rule 

except that:

7.4.b.1.J.1.(a). They shall be graded and 

compacted no more than is necessary to 

achieve stability and non-erodability; 

7.4.b.1.J.1.(b). The groundcover mixes 

described in subparagraph 7.4.d.b.1.G. shall 

be used unless the Secretary requires a 

different mixture; 

7.4.b.1.J.1.(c) Kentucky 31 fescue, serecia 

lespedeza, vetches, clovers (except ladino 

and white clover) or other invasive species 

may not be used; and 

7.4.b.1.J.2. Although not required by this 

rule, native, non-invasive trees may be 

planted on the faces of fills.

In its submittal of this provision, the 

WVDEP stated that this provision was 

amended to remove language that 

contradicts other parts of CSR 38–2–7.4. 

gg. CSR 38–2–7.5.a. Section CSR 38–

2–7.5 concerns Homestead postmining 

land use. Subsection CSR 38–2–7.5.a 

has been amended by adding a new 

sentence to the end of the existing 

language. As amended, CSR 38–2–7.5.a 

provides as follows:

7.5.a. Operations receiving a variance from 

AOC for this use shall establish 

homesteading on at least one half (1⁄2) of the 

permit area. The remainder of the permit area 

shall support an alternate AOC variance use. 

The acreage considered homesteading shall 

be the sum of the acreage associated with the 

following: the civic parcel; the commercial 

parcel; the conservation easement; the 

homestead parcel; the rural parcel and any 

required infrastructure.

We note that this revision is intended 

to comply with the required program 

amendment codified in the Federal 

regulations at 30 CFR 948.16 (rrrrr). The 

requirement at 30 CFR 948.16 (rrrrr) 

provides for the amendment of: (1) CSR 

38–2–7.5.a to clarify whether or not the 

calculated acreage of the Commercial 

Parcel(s) is to be summed with the total 

Homestead acreage for the purpose of 

calculating the acreage of other various 

components of the Homestead Area 

(such as Common Lands, Village 

Parcels, Conservation Easement, etc.); 

and (2) CSR 38–2–7.5.l.4 to clarify 

whether or not the acreage for Public 

Nursery is to be calculated based on the 

amount of acreage available for the 

Village Homestead, the Civil Parcel, or 

the entire Homestead Area (see Item 

2(mm) below). 

hh. CSR 38–2–7.5.b.3. This provision 

concerns the definition of ‘‘Commercial 

parcel,’’ and has been amended by 

deleting the word ‘‘regulation’’ in the 

last sentence and replacing that word 

with the word ‘‘rule.’’ In addition, a new 

sentence has been added to the end of 

the provision. As amended, Subsection 

7.5.b.3 provides as follows:

7.5.b.3. Commercial parcel means a parcel 

retained by the landowner of record and 

incorporated within the homestead area on 

which the landowner or its designee may 

develop commercial uses. The size and 

location of commercial parcels shall comply 

with the requirements of this rule. Provided, 

however, parcels retained by the landowner 

for commercial development and 

incorporated within the Homestead area 

must be developed for commercial uses as 

provided by subdivision 7.5.g.5 of this rule.

In its submittal of the amendment of 

this provision, the WVDEP stated that 

the amendment is to comply with the 

required program amendment codified 

in the Federal regulations at 30 CFR 

948.16(fffff). The requirement at 30 CFR 

948.16(fffff) provides that CSR 38–2–

7.5.b.3 be amended, or the West Virginia 

program otherwise be amended, to 

clarify that parcels retained by the 

landowner for commercial development 

and incorporated within the Homestead 

area must be developed for commercial 

uses as provided by Subsection CSR 38–

2–7.5.g.5. 

ii. CSR 38–2–7.5.i.10. This provision 

concerns wetlands associated with 

Homestead areas, and is amended by 

adding a new sentence immediately 

following the existing first sentence. As 

amended, Subsection 7.5.i.10 provides 

as follows:

7.5.i.10. Wetlands. Each homestead plan 

may describe areas within the homestead 

area reserved for created wetlands. The 

created wetlands shall comply with the 

requirements of 3.5 of this rule. These 

created wetlands may be ponds, permanent 

impoundments or wetlands created during 

mining. They may be left in place after final 

bond release. Any pond or impoundment left 

in place is subject to requirements under 

subsection 5.5 of this rule.

In its submittal of the amendment of 

this provision, the WVDEP stated that 

the amendment is to comply with the 

required program amendment codified 

in the Federal regulations at 30 CFR 

948.16(iiiii). The requirement at 30 CFR 

948.16(iiiii) provides that CSR 38–2–

7.5.i.10 be amended, or the West 

Virginia program otherwise be 

amended, to require compliance with 

the permit requirements at CSR 38–2–

3.5.d. 

jj. CSR 38–2–7.5.j.3.A. This provision 

concerns the definition of soil in 

relation to Homestead areas, and is 

amended in the first sentence by adding 

the soil horizon ‘‘E’’ between soil 

horizons ‘‘A’’ and ‘‘B.’’ 

In its submittal of the amendment of 

this provision, the WVDEP stated that 

the amendment is to comply with the 

required program amendment codified 

in the Federal regulations at 30 CFR 

948.16(jjjjj). The requirement at 30 CFR 

948.16(jjjjj) provides that CSR 38–2–

7.5.j.3.A be amended by adding an ‘‘E’’ 

horizon. 

kk. CSR 38–2–7.5.j.3.B. This provision 

concerns the recovery and use of soil on 

Homestead areas, and is amended by 

deleting the exception that is stated in 

the first sentence. As amended, 

Subsection 7.5.j.3.B provides as follows:

7.5.j.3.B. The Secretary shall require the 

operator to recover and use all the soil on the 

mined area, as shown on the soil maps. The 

Secretary shall assure that all saved soil 

includes all of the material from the O and 

A horizons.

In its submittal of this revision, the 

WVDEP stated that the revision is 

intended to comply with the required 

program amendment codified in the 

Federal regulations at 30 CFR 948.16 

(kkkkk). The requirement at 30 CFR 

948.16 (kkkkk) provides that CSR 38–2–

7.5.j.3.B be amended by deleting the 

phrase, ‘‘except for those areas with a 

slope of at least 50%,’’ and by deleting 

the phrase, ‘‘and other areas from which 

the applicant affirmatively demonstrates 

and the Director of the WVDEP finds 

that soil cannot reasonably be 

recovered.’’ 

ll. CSR 38–2–7.5.j.3.E. This provision 

concerns soil substitutes and is 

amended by adding the phrase ‘‘and is 

in accordance with 14.3.c of this rule’’ 

at the end of the first sentence. 

In its submittal of this revision, the 

WVDEP stated that the revision is 

intended to comply with the required 

program amendment codified in the 

Federal regulations at 30 CFR 948.16 

(lllll). The requirement at 30 CFR 948.16 

(lllll) provides that CSR 38–2–7.5.j.3.E 

be amended, or the West Virginia 

program otherwise be amended, to 

provide that soil substitute material 

must be equally suitable for sustaining 

50252 Federal Register / Vol. 70, No. 165 / Friday, August 26, 2005 / Proposed Rules 

vegetation as the existing topsoil and 

the resulting medium is the best 

available in the permit area to support 

vegetation. 

mm. CSR 38–2–7.5.l.4.A. This 

provision concerns public nursery 

associated with Homestead areas, and is 

amended by adding the word ‘‘village’’

between the words ‘‘homestead’’ and 

‘‘area’’ in the first sentence. 

In its submittal of this revision, the 

WVDEP stated that the revision is 

intended to comply with the required 

program amendment codified in the 

Federal regulations at 30 CFR 948.16 

(rrrrr). The requirement at 30 CFR 

948.16 (rrrrr) provides for the 

amendment of: (1) CSR 38–2–7.5.a to 

clarify whether or not the calculated 

acreage of the Commercial Parcel(s) is to 

be summed with the total Homestead 

acreage for the purpose of calculating 

the acreage of other various components 

of the Homestead Area (such as 

Common Lands, Village Parcels, 

Conservation Easement, etc.); and (2) 

CSR 38–2–7.5.l.4 to clarify whether or 

not the acreage for the Public Nursery is 

to be calculated based on the amount of 

acreage available for the Village 

Homestead, the Civil Parcel, or the 

entire Homestead Area. 

nn. CSR 38–2–7.5.o.2. This provision 

concerns Phase II bond release of 

surface mining operations with a 

Homestead postmining land use, and is 

amended by adding a proviso at the end 

of the existing provision. As amended, 

CSR 38–2–7.5.o.2 provides as follows:

7.5.o.2. Phase II bond release may not 

occur before two years have passed since 

Phase I bond release. Before approving Phase 

II bond release, the Secretary shall assure that 

the vegetative cover is still in place. The 

Secretary shall further assure that the tree 

survival on the conservation easements and 

public nurseries are no less than 300 trees 

per acre (80% of which must be species from 

the approved list). Furthermore, in the 

conservation easement and public nursery 

areas, there shall be a 70% ground cover 

where ground cover includes tree canopy, 

shrub and herbaceous cover, and organic 

litter. Trees and shrubs counted in 

considering success shall be healthy and 

shall have been in place at least two years, 

and no evidence of inappropriate dieback. 

Phase II bond release shall not occur until the 

service drops for the utilities and 

communications have been installed to each 

homestead parcel. Provided, however, the 

applicable revegetation success standards for 

each phase of bond release on Commercial 

Parcels, Village Parcels, Rural Parcels, Civic 

Parcels and Common Lands shall be its 

corresponding revegetation success standards 

specified in 9.3 of this rule.

In its submittal of this revision, the 

WVDEP stated that the revision is 

intended to comply with the required 

program amendment codified in the 

Federal regulations at 30 CFR 948.16 

(ppppp). The requirement at 30 CFR 

948.16 (ppppp) provides that CSR 38–2–

7.5.o.2 be amended, or the West Virginia 

program otherwise be amended, to 

identify the applicable revegetation 

success standards for each phase of 

bond release on Commercial Parcels, 

Village Parcels, Rural Parcels, Civic 

Parcels and Common Lands. 

oo. CSR 38–2–9.3.d. Subsection 9.3 

concerns the standards for evaluating 

vegetative cover. Subsection 9.3.d is 

amended by deleting the word 

‘‘determine’’ in the first sentence, and 

adding in its place the word ‘‘verify.’’

The existing second sentence 

concerning a statistically valid sampling 

technique is deleted, and is replaced by 

a new sentence that requires the 

operator to provide the Secretary of the 

WVDEP with a statistically valid 

sampling technique. As amended, 

Subsection 9.3.d provides as follows:

9.3.d. Not less than two (2) years following 

the last date of augmented seeding, the 

Secretary shall conduct a vegetative 

inspection to verify that applicable standards 

for vegetative success have been met. The 

operator shall provide to the Secretary a 

vegetative evaluation using a statistically 

valid sampling technique with a ninety (90) 

percent statistical confidence interval. An 

inspection report shall be filed for each 

inspection and when the standard is met, the 

Secretary shall execute a Phase II bond 

release.

pp. CSR 38–2–9.3.e. Subsection 9.3.e 

concerns request of final bond release, 

and is amended by adding the phrase 

‘‘which includes a final vegetative 

evaluation using approved, statistically 

valid sampling techniques’’ to the end 

of the first sentence. In addition, the 

words ‘‘inspection to verify the’’ are 

added to the second sentence, 

immediately following the phrase ‘‘the 

Secretary shall conduct.’’ Finally, the 

words ‘‘using approved, statistically 

valid sampling techniques’’ are deleted 

from the end of the second sentence. As 

amended, Subsection 9.3.e provides as 

follows:

9.3.e. After five (5) growing seasons 

following the last augmented seeding, 

planting, fertilization, revegetation, or other 

work, the operator may request a final 

inspection and final bond release which 

includes a final vegetative evaluation using 

approved, statistically valid sampling 

techniques. Upon receipt of such request, the 

Secretary shall conduct an inspection to 

verify the final vegetative evaluation. A final 

report shall be filed and if the applicable 

standards have been met, the Secretary shall 

release the remainder of the bond. Ground 

cover, production, or stocking shall be 

considered equal to the approved success 

standard when they are not less than 90 

(ninety) percent of the success standard.

In its submittal of the amendment of 

this provision, the WVDEP stated that 

the amendment is to make it clear that 

the operator will provide the 

information to determine if the 

vegetation success standard has been 

met. 

qq. CSR 38–2–14.5.h. Subsection CSR 

38–2–14.5 concerns performance 

standards for hydrologic balance. 

Subsection 14.5.h is amended by adding 

two new sentences at the end of this 

provision relating to the waiver of water 

supply replacement. As amended, 

Subsection 14.5.h provides as follows:

14.5.h. A waiver of water supply 

replacement granted by a landowner as 

provided in subsection (b) of section 24 of 

the Act [WVSMCRA] shall apply only to 

underground mining operations, provided 

that a waiver shall not exempt any operator 

from the responsibility of maintaining water 

quality. Provided, however, the requirement 

for replacement of an affected water supply 

that is needed for the land use in existence 

at the time of contamination, diminution or 

interruption or where the affected water 

supply is necessary to achieve the postmining land use shall not be waived. If the 

affected water supply was not needed for the 

land use in existence at the time of loss, 

contamination, or diminution, and if the 

supply is not needed to achieve the 

postmining land use, replacement 

requirements may be satisfied by 

demonstrating that a suitable alternative 

water source is available and could feasibly 

be developed. If the latter approach is 

selected, written concurrence must be 

obtained from the water supply owner.

In its submittal of this revision, the 

WVDEP stated that the revision is 

intended to comply with the required 

program amendment codified in the 

Federal regulations at 30 CFR 948.16 

(sss). The requirement at 30 CFR 948.16 

(sss) provides that CSR 38–2–14.5.h be 

amended, or the West Virginia program 

otherwise be amended, to require that, 

if the water supply is not needed for the 

existing or postmining land use, such 

waiver can only be approved where it is 

demonstrated that a suitable alternative 

water source is available and could 

feasibly be developed. 

rr. CSR 38–2–14.15.c.3. Subsection 

CSR 38–2–14.15 concerns performance 

standards for contemporaneous 

reclamation. Subsection 14.15.c.3 is 

amended by deleting the reference to 

the ‘‘National Environmental Policy 

Act’’ and adding in its place a reference 

to the ‘‘Endangered Species Act.’’

In its submittal of the amendment to 

this provision, the WVDEP stated that 

the amendment is to correct a wrong 

cross-reference. 

ss. CSR 38–2–20.6.d. Section CSR 38–

2–20 concerns Inspection and 

Enforcement. Subsection CSR 38–2–

Federal Register / Vol. 70, No. 165 / Friday, August 26, 2005 / Proposed Rules 50253

20.6.d concerns Notice of Informal 

Assessment Conference, and is amended 

by deleting the second sentence of this 

provision. The deleted sentence 

provided as follows: ‘‘[p]rovided, 

however, the operator shall forward the 

amount of proposed penalty assessment 

to the Secretary for placement in an 

interest bearing escrow account. 

tt. CSR 38–2–20.6.j. Subsection CSR 

38–2–20.6.j concerns Escrow, and is 

amended by deleting the words ‘‘an 

informal conference or’’ and adding in 

their place the word ‘‘a.’’ As amended, 

CSR 38–2–20.6.j provides as follows: 

‘‘Escrow. If a person requests a judicial 

review of a proposed assessment, the 

proposed penalty assessment shall be 

held in escrow until completion of the 

judicial review.’’

In its submittal of this amendment, 

the WVDEP stated that the requirement 

to pre-pay penalty prior to informal 

conference did not achieve the desired 

results. WVDEP also stated that it has 

led to confusion between agency and 

industry alike and, therefore, the agency 

is deleting this requirement. 

Amendments to CSR 199–1 

a. CSR 199–1–2.36a. Section CSR 

199–1–2 concerns Definitions. New 

Subsection 2.36a has been added to 

define the term ‘‘Community or 

Institutional Building.’’ New Subsection 

2.36a provides as follows:

2.36a. Community or Institutional Building 

means any structure, other than a public 

building or an occupied dwelling, which is 

used primarily for meetings, gatherings or 

functions of local civic organizations or other 

community groups; functions as an 

educational, cultural, historic, religious, 

scientific, correctional, mental health or 

physical health care facility; or is used for 

public services, including, but not limited to, 

water supply, power generation or sewage 

treatment.

In its submittal of the amendment to 

this provision, the WVDEP stated that 

the amendment further defines the 

definition, and the information was 

taken from CSR 38–2. 

b. CSR 199–1–2.36b. New Subsection 

2.36b has been added to define the term 

‘‘Public Building.’’ New Subsection 

2.36b provides as follows:

2.36b. Public Building means any structure 

that is owned or leased by a public agency 

or used primarily for public business or 

meetings.

In its submittal of the amendment to 

this provision, the WVDEP stated that 

the amendment further defines the 

definition, and the information was 

taken from CSR 38–2. 

c. CSR 199–1–2.37. New Subsection 

2.37 has been added to define the term 

‘‘Structure.’’ Existing Subsections 2.37, 

2.38, and 2.39 have been renumbered as 

Subsections 2.38, 2.39, and 2.40. New 

Subsection 2.37 provides as follows:

2.37 Structure means any man-made 

structures within or outside the permit areas 

which include, 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. The term does not 

include structures built and/or utilized for 

the purpose of carrying out the surface 

mining operation.

In its submittal of the amendment to 

this provision, the WVDEP stated that 

the definition was taken from CSR 38–

2. 

d. CSR 199–1–3.3.b. Subsection CSR 

199–1–3.3 concerns public notice of 

blasting operations, and has been 

amended by adding new Subsection 

3.3.b to provide as follows:

3.3.b. Blasting Signs. The following signs 

and markers shall be erected and maintained 

while blasting is being conducted: 

3.3.b.1 Warning signs shall be 

conspicuously displayed at all approaches to 

the blasting site, along haulageways and 

access roads to the mining operation and at 

all entrances to the permit area. The sign 

shall at a minimum be two feet by three feet 

(2’ x 3’) reading ‘‘WARNING! Explosives in 

Use’’ and explaining the blasting warning 

and the all clear signals and the marking of 

blasting areas and charged holes; and 

3.3.b.2 Where blasting operations will be 

conducted within one hundred (100) feet of 

the outside right-of-way of a public road, 

signs reading ‘‘Blasting Area’’, shall be 

conspicuously placed along the perimeter of 

the blasting area.

In its submittal of the amendment to 

this provision, the WVDEP stated that 

the amendment adds information from 

CSR 38–2 relating to blasting signs. 

e. CSR 199–1–3.7. Subsection CSR 

199–1–3.7 concerns blasting control for 

other structures, and has been amended 

by deleting the words ‘‘in subsection 

2.35 of this rule’’ in the first sentence. 

In its submittal of the amendment to 

this provision, the WVDEP stated that 

the amendment eliminates an incorrect 

reference. 

f. CSR 199–1–4.8. Subsection CSR 

199–1–4.8 concerns violations by a 

certified blaster, and has been amended 

by deleting the words ‘‘director shall’’

and replacing those words with the 

words ‘‘Secretary may.’’ In addition, the 

words ‘‘written notification’’ are added 

immediately after the word ‘‘issue.’’ The 

phrase ‘‘or revoke the certification of’’ is 

added immediately after the phrase ‘‘a 

temporary suspension order’’, and the 

word ‘‘against’’ has been deleted. As 

amended, the paragraph at Subsection 

CSR 199–1–4.8 provides as follows:

4.8. Violations by a Certified Blaster. —The 

Secretary may issue written notification, a 

temporary suspension order, or revoke the 

certification of a certified blaster who is, 

based on clear and convincing evidence, in 

violation of any of the following:

g. CSR 199–1–4.8.c. This Subsection 

has been amended by deleting the 

words ‘‘[s]ubstantial or significant’’ at 

the beginning of the first sentence, and 

by capitalizing the word ‘‘federal’’ in the 

first sentence. 

h. CSR 199–1–4.8.f and 4.8.g. These 

Subsections are added and provide as 

follows:

4.8.f. A pattern of conduct which is not 

consistent with acceptance of responsibility 

for blasting operations, i.e., repeated 

violations of State or Federal laws pertaining 

to explosives; or 

4.8.g. Willful Conduct—The Secretary shall 

suspend or revoke the certification of a 

blaster for willful violations of State or 

Federal laws pertaining to explosive.

In its submittal of the amendment to 

this provision, the WVDEP stated that 

the amendment was made because the 

wording was not consistent with 

previously approved rule 22–4–6.01, 

according to OSM. In addition, the 

WVDEP stated that this subsection has 

been reorganized and renumbered for 

clarity reasons, as required by the 

Council of Joint Rulemaking. 

i. CSR 199–1–4.9. This subsection 

concerns penalties, and has been 

amended, reorganized and renumbered. 

A new title, ‘‘Suspension and 

Revocation’’ has been added at 

Subsection 4.9.a. Existing Subsection 

4.9.a. has been renumbered as 4.9.a.1 

and 4.9.a.2. Existing Subsection 4.9.b 

has been renumbered as 4.9.a.3. New 

Subsection 4.9.a.4 has been added. 

Existing Subsections 4.9.c and 4.9.d 

have been renumbered as 4.10 and 4.11, 

respectively. Finally, existing 

Subsections 4.10, 4.11, and 4.12 have 

been renumbered as Subsections 4.12, 

4.13, and 4.14, respectively. As 

amended, Subsections 4.9, and 4.10 

through 4.14 provide as follows:

4.9. Penalties. 

4.9.a Suspension and Revocation. 

4.9.a.1. Suspension.—Upon service of a 

temporary suspension order, the certified 

blaster shall be granted a hearing before the 

Secretary to show cause why his or her 

certification should not be suspended or 

revoked. 

4.9.a.2. The period of suspension will be 

conditioned on the severity of the violation 

committed by the certified blaster and, if the 

violation can be abated, the time period in 

which the violation is abated. The Secretary 

may require remedial actions and measures 

and re-training and re-examination as a 

condition for re-instatement of certification. 

4.9.a.3. Revocation.—If the remedial action 

required to abate a suspension order, issued 

50254 Federal Register / Vol. 70, No. 165 / Friday, August 26, 2005 / Proposed Rules 

by the Secretary to a certified blaster, or any 

other action required at a hearing on the 

suspension of a blaster’s certification, is not 

taken within the specified time period for 

abatement, the Secretary may revoke the 

blaster’s certification and require the blaster 

to relinquish his or her certification card. 

Revocation will occur if the certified blaster 

fails to re-train or fails to take and pass 

reexamination as a requirement for remedial 

action. 

4.9.a.4. In addition to suspending or 

revoking the certification of a blaster, failure 

to comply with the requirements of this 

subsection may also result in further 

suspension or revocation of a blaster’s 

certification. 

4.10. Reinstatement.—Subject to the 

discretion of the Secretary, and based on a 

petition for reinstatement, any person whose 

blaster certification has been revoked, may, if 

the Secretary is satisfied that the petitioner 

will comply with all blasting law and rules, 

apply to re-take the blasters certification 

examination, provided the person meets all 

of the requirements for blasters certification 

specified by this subsection, and has 

completed all requirements of the suspension 

and revocation orders, including the time 

period of the suspension. 

4.11. Civil and Criminal Penalties.—Every 

certified blaster is subject to the individual 

civil and criminal penalties provided for in 

W. Va. Code § 22–3–17. 

4.12. Hearings and Appeals.—Any certified 

blaster who is served a suspension order, 

revocation order, or civil and criminal 

sanctions is entitled to the rights of hearings 

and appeals as provided for in W. Va. Code 

§§ 22–3–16 and 17. 

4.13. Blasting Crew.—Persons who are not 

certified and who are assigned to a blasting 

crew, or assist in the use of explosives, shall 

receive directions and on-the-job training 

from a certified blaster. 

4.14. Reciprocity With Other States.—The 

Secretary may enter into a reciprocal 

agreement with other states wherein persons 

holding a valid certification in that state may 

apply for certification in West Virginia, and 

upon approval by the Secretary, be certified 

without undergoing the training or 

examination requirements set forth in this 

rule.

In its submittal of the amendments to 

this provision, the WVDEP stated that 

the amendments provide clarification 

and remove incorrect reference. In 

addition, the WVDEP stated that 

Subsection 4.9 has been reorganized and 

renumbered for clarity reasons, as 

required by the Council of Joint 

Rulemaking. We also note, that the 

amendments to Subsection 4.9 are 

intended to address the required 

program amendment codified in the 

Federal regulations at 30 CFR 948.16(a). 

The Federal regulations at 30 CFR 

948.16(a) provide that West Virginia 

must amend CSR 199–1–4.9.a and 4.9.b, 

or otherwise amend the West Virginia 

program, to provide that upon finding of 

willful conduct, the Secretary of the 

WVDEP shall revoke or suspend a 

blaster’s certification. 

3. Committee Substitute for House Bill 

3033 

WV Code 22–3–11 has been amended 

by adding new Subsection 22–3–

11(h)(2) to provide as follows:

(2) In managing the Special Reclamation 

Program, the Secretary shall: 

(A) Pursue cost effective alternative water 

treatment strategies; and 

(B) Conduct formal actuarial studies every 

two years and conduct informal reviews 

annually on the Special Reclamation Fund.

4. House Bill 3236

This Bill amended the W. Va. Code by 

adding new Section 22–3–11a and new 

Section 22–3–32a to provide as follows:

22–3–11a. Special reclamation tax; 

clarification of imposition of tax; procedures 

for collection and administration of tax; 

application of Tax Procedure and 

Administration Act and Tax Crimes and 

Penalties Act. 

(a) It is the intent of the Legislature to 

clarify that from the date of its enactment, the 

special reclamation tax imposed pursuant to 

the provisions of section eleven of this article 

is intended to be in addition to any other 

taxes imposed on persons conducting coal 

surface mining operations including, but not 

limited to the tax imposed by section thirtytwo of this article, the tax imposed by article 

twelve-b, chapter eleven of this code, the 

taxes imposed by article thirteen-a of said 

chapter and the tax imposed by article 

thirteen-v of said chapter. 

(b) Notwithstanding any other provisions 

of section eleven of this article to the 

contrary, under no circumstance shall an 

exemption from the taxes imposed by article 

twelve-b, thirteen-a or thirteen-v, chapter 

eleven of this code be construed to be an 

exemption from the tax imposed by section 

eleven of this article. 

(c) When coal included in the measure of 

the tax imposed by section eleven of this 

article is exempt from the tax imposed by 

article twelve-b, chapter eleven of this code, 

the tax imposed by section eleven of this 

article shall be paid to the tax commissioner 

in accordance with the provisions of sections 

four through fourteen, inclusive, article 

twelve-b, chapter eleven of this code, which 

provisions are hereby incorporated by 

reference in this article. 

(d) General procedure and 

administration.—Each and every provision of 

the ‘‘West Virginia Tax Procedure and 

Administration Act’’ set forth in article ten, 

chapter eleven of the code applies to the 

special tax imposed by section eleven of this 

article with like effect as if such act were 

applicable only to the special tax imposed by 

said section eleven and were set forth in 

extenso in this article, notwithstanding the 

provisions of section three of said article ten. 

(e) Tax crimes and penalties.—Each and 

every provision of the ‘‘West Virginia Tax 

Crimes and Penalties Act’’ set forth in article 

nine of said chapter eleven applies to the 

special tax imposed by section eleven of this 

article with like effect as if such act were 

applicable only to the special tax imposed by 

said section eleven and set forth in extenso

in this article, notwithstanding the 

provisions of section two of said article nine.

22–3–32a. Special tax on coal; clarification 

of imposition of tax; procedures for 

collection and administration of tax. 

(a) It is the intent of the Legislature to 

clarify that from the date of its enactment, the 

special tax on coal imposed pursuant to the 

provisions of section thirty-two of this article 

is intended to be in addition to any other 

taxes imposed on every person in this state 

engaging in the privilege of severing, 

extracting, reducing to possession or 

producing coal for sale profit or commercial 

use including, but not limited to the tax 

imposed by section eleven of this article, the 

tax imposed by article twelve-b, chapter 

eleven of this code, the taxes imposed by 

article thirteen-a of said chapter and the tax 

imposed by article thirteen-v of said chapter. 

(b) Notwithstanding any other provisions 

of section thirty-two of this article to the 

contrary, under no circumstance shall an 

exemption from the taxes imposed by article 

twelve-b, thirteen-a or thirteen-v, chapter 

eleven of this code be construed to be an 

exemption from the tax imposed by section 

thirty-two of this article. 

(c) When coal included in the measure of 

the tax imposed by section thirty-two of this 

article is exempt from the tax imposed by 

article twelve-b, chapter eleven of this code, 

the tax imposed by section thirty-two of this 

article shall be paid to the tax commissioner 

in accordance with the provisions of sections 

four through fourteen, inclusive, article 

twelve-b, chapter eleven of this code, which 

provisions are hereby incorporated by 

reference in this article.

5. CSR 38–2–14.14.g.2.A.6 Removal of 

Erosion Protection Zone (EPZ) 

This amendment consists of 

information provided by the WVDEP, 

including a draft memorandum, to 

support its assertion that OSM should 

reverse its previous disapproval of 

language concerning EPZ at CSR 38–2–

14.14.g.2.A.6. In its submittal 

concerning this provision, the WVDEP 

stated that in a letter to OSM dated 

March 8, 2005 (actually, the letter’s date 

was March 9, 2005, Administrative 

Record Number WV–1418), the State 

had explained its position on EPZ and 

the circumstances when the EPZ could 

be left in place as a permanent structure. 

The WVDEP’s March 9, 2005, letter was 

in response to OSM’s disapproval of 

language concerning EPZ at CSR 38–2–

14.14.g.2.A.6 that was part of a 

proposed amendment submitted to OSM 

by letter dated March 18, 2003 

(Administrative Record Number WV–

1352). The language was not approved, 

WVDEP stated, based on the lack of U.S. 

Environmental Protection Agency (EPA) 

concurrence with the State’s proposed 

language. Background information on 

OSM’s previous disapproval of language 

Federal Register / Vol. 70, No. 165 / Friday, August 26, 2005 / Proposed Rules 50255

concerning EPZ at CSR 38–2–

14.14.g.2.A.6 is presented below. 

Under the Federal regulations at 30 

CFR 732.17(h)(11)(ii), OSM is required 

to obtain written concurrence from EPA 

for proposed provisions of a State 

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 1, 

2003, we asked EPA for concurrence 

and comments on the proposed 

amendments that were submitted to 

OSM by letter dated March 18, 2003 

(Administrative Record Number WV–

1355). 

The EPA responded by letter dated 

June 13, 2003, (Administrative Record 

Number WV–1363). The EPA stated that 

it reviewed the proposed revisions and 

has concerns about the requirement of 

EPZ associated with single-lift valley 

fills at CSR 38–2–14.14.g.1 (Durable 

Rock Fills). 

OSM published its decision on a 

proposed West Virginia program 

amendment that addressed, in part, the 

addition of new language concerning 

EPZ related to durable rock fills on July 

7, 2003 (see 68 FR 40157, finding 19, 

pages 40161 and 40162). In that finding, 

OSM did not approve language at CSR 

38–2–14.14.g.2.A.6 that would have 

allowed the permanent retention of EPZ 

if approval were granted in the 

reclamation plan. In particular, OSM 

did not approve the words ‘‘Unless 

otherwise approved in the reclamation 

plan’’ because approval would have 

been inconsistent with EPA’s 

conditional concurrence to remove fill 

material associated with EPZs from 

streams and to reconstruct the stream 

channels after mining. 

EPZ Purpose—The EPA stated that it 

understands that an EPZ is a buffer zone 

between the toe of a single lift valley fill 

and its downstream sedimentation 

pond. It consists of a wide and low fill, 

revegetated to dissipate runoff energy 

from the valley fill face and prevent 

pond overloading during severe storm 

periods. The EPA stated that a single lift 

fill is particularly subject to erosion, 

since it is constructed in a downstream 

direction toward the pond with no 

reclamation or revegetation of the fill 

face until completion of mining. 

EPA’s Concern—The EPA stated that 

it is concerned that EPZs may result in 

permanent stream fills after completion 

of mining. According to CSR 38–2–

14.14.g.2.A.1, the EPA stated, a 250-foot 

long EPZ would be required for a 500-

foot high valley fill, which, EPA stated, 

is not unusual in southern West 

Virginia. Although Section 14.14.g.2.A.6 

requires EPZ removal, regrading, and 

revegetating after mining, EPA stated, it 

does not appear to include the removal 

of the stream fill associated with the 

EPZ or reconstruction of the stream 

channel. An alternative valley fill 

design, which appears more 

environmentally acceptable, EPA stated, 

is also indicated in Section 14.14.g.1 

and further described in Section 

14.14.g.3. The EPA stated that this 

involves starting valley fill construction 

from the toe and proceeding upstream 

in multiple lifts (layers) of 100 feet or 

less in thickness. The EPA stated that 

the face of each lift would be reclaimed 

and revegetated before starting the next 

lift. The toe of the first lift would be at 

the sedimentation pond, the EPA stated, 

and an EPZ would not be necessary due 

to better erosion control features.

Conditional Concurrence—The EPA 

stated that it concurred with the 

proposed revisions submitted by the 

State on March 18, 2003, under the 

condition that a requirement be 

included to remove stream fills 

associated with EPZs after mining and 

reconstruct the stream channels. The 

EPA stated that it should also be noted 

that stream filling during EPZ 

construction requires authorization 

under Section 404 of the Clean Water 

Act, administered by the U.S. Army 

Corps of Engineers. Considering the 

high erosion potential of single-lift 

valley fills, the EPA stated, they (EPA) 

recommend that the single lift method 

be replaced by the more 

environmentally favorable approach of 

starting at the toe and proceeding 

upwards in multiple lifts. The EPA 

stated that it will likely make this 

recommendation for any proposed 

single lift fill coming before it for 

Section 404 review. 

In response to EPA’s conditional 

concurrence, OSM did not approve the 

words ‘‘Unless otherwise approved in 

the reclamation plan’’ at CSR 38–2–

14.14.g.2.A.6 because leaving an EPZ in 

place would be inconsistent with EPA’s 

conditional concurrence to remove 

stream fills associated with EPZs and to 

reconstruct the stream channels after 

mining (see Finding 19, pages 40161 

and 40162). In addition, OSM approved 

CSR 38–2–14.14.g.2.A.6 only to the 

extent that following mining, all stream 

fills associated with EPZs will be 

removed and the stream channels shall 

be reconstructed. 

In its June 13, 2005, submittal letter, 

the WVDEP requests that OSM 

reconsider its decision to disapprove 

certain language at CSR 38–2–

14.14.g.2.A.6 (Administrative Record 

Number WV–1421). In support of its 

request, the WVDEP stated that 

following the submittal of its March 9, 

2005, letter discussion ensued among 

representatives of WVDEP, EPA, and 

OSM. The WVDEP stated that EPA 

expressed concern that the EPZ rule did 

not reference Section 404 of the Clean 

Water Act and that it wasn’t clear that 

the operator had to demonstrate leaving 

the EPZ would provide benefits to or 

protection to the environment and/or 

the public. The WVDEP stated that it 

reiterated that the present wording of 

the State rule requires removal and/or 

reclamation of EPZ areas and restoration 

of the stream, unless otherwise 

approved by the reclamation plan. The 

WVDEP further stated that the 

circumstances under which such areas 

could become permanent would be at 

the discretion of WVDEP, with a 

demonstration by the applicant to the 

satisfaction of the Secretary of the 

WVDEP that the environment/public 

benefits outweigh any anticipated 

impacts. 

The WVDEP also stated that in 

addition to the mining requirements 

imposed by WVDEP, such construction 

is subject to provisions of Section 404 

of the Clean Water Act and under the 

ultimate jurisdiction of the U.S. Army 

Corps of Engineers and EPA. The 

WVDEP also submitted a draft 

memorandum to its staff for OSM’s 

consideration in support of its request 

that OSM reconsider its previous 

decision on the EPZ provision at CSR 

38–2–14.14.g.2.A.6. The draft 

memorandum submitted by the WVDEP 

is quoted below.

Interoffice Memorandum 

To: All DMR Employees 

From: Randy Huffman, Director 

Date: 

Subject: Durable rock fills with erosion 

protection zone

38–2–14.14.g.2.A.6 requires removal and 

reclamation of erosion protection zone, and 

restoration of the stream and does provide 

that erosion protection zone may become 

permanent structure approved in the 

reclamation plan. It states: 

‘‘Unless otherwise approved in the 

reclamation plan, the erosion protection zone 

shall be removed and the area upon which 

it was located shall be reg[ra]ded and 

revegetated in accordance with the 

reclamation plan.’’

For an erosion protection zone to become 

a permanent structure, the applicant must 

provide a demonstration to the satisfaction of 

the Secretary that leaving the erosion 

protection zone provides benefits to or 

protection to the environment and/or public. 

Such benefits or protection include, but are 

not limited to; runoff attenuation, wildlife 

and wetland enhancement, and stream scour 

protection. This approval will be contingent 

upon the applicant obtaining all other 

necessary permits and/or approvals.

50256 Federal Register / Vol. 70, No. 165 / Friday, August 26, 2005 / Proposed Rules 

6. State Water Rights and Replacement 

Policy 

WVDEP submitted a policy dated 

August 1995 regarding water rights and 

replacement (Administrative Record 

Number WV–1425). As noted in the 

policy, its purpose is to define the time 

periods for providing temporary and 

permanent water replacement. This 

policy is to supplement the proposed 

regulatory revisions that the State made 

at CSR 38–2–14.5(h). The policy is in 

response to an OSM Part 732 

notification dated June 7, 1996, 

regarding subsidence and water 

replacement (Administrative Record 

Number WV–1037(a)). The Federal 

regulations at 30 CFR 817.41(j) require 

prompt replacement of a residential 

water supply that is contaminated, 

diminished, or interrupted by 

underground mining activities 

conducted after October 24, 1992. OSM 

advised WVDEP that its program lacked 

guidance concerning timing of water 

supply replacement. A proposed 

statutory revision that was intended to 

address this issue failed to pass the 

Legislature. The policy is intended to 

satisfy the Federal requirement by 

setting forth the time periods within the 

State program for providing temporary 

and permanent water replacement. The 

policy provides as follows:

WV Division of Environmental Protection, 

Office of Mining and Reclamation, Inspection 

and Enforcement. 

Series: 14, Pg. No: 1 of 1, Revised: 8–95. 

SUBJECT: Water Rights and Replacement 

1. Purpose: Define time periods as they 

relate to water rights and replacement. 

2. Definitions: 

3. Legal Authority: 22–3–24 

4. Policy/Procedures: Upon receipt of 

notification that a water supply was 

adversely affected by mining, the permittee 

shall provide drinking water to the user 

within twenty-four (24) hours. 

Within seventy two (72) hours, the 

permittee shall have the user hooked up to 

a temporary water supply. The temporary 

supply shall be hooked up to existing 

plumbing, if any, to allow the user to conduct 

all normal activities associated with domestic 

water use. This includes drinking, cooking, 

bathing, washing, non commercial farming, 

and gardening. 

Within thirty (30) days of notification, the 

permittee shall begin activities to establish a 

permanent water supply or submit a proposal 

to the WVDEP outlining the measures and 

timetables to be utilized in establishing a 

permanent supply. The total elapsed time 

from notification to permanent supply hookup cannot exceed two (2) years. 

The permittee is responsible for payment 

of operation and maintenance costs on a 

replacement water supply in excess of 

reasonable and customary delivery costs that 

the user incurred. 

Upon agreement by the permittee and the 

user (owner), the obligation to pay such 

operation and maintenance costs may be 

satisfied by a one-time lump sum amount 

agreed to by the permittee and the water 

supply user (owner).

III. Public Comment Procedures 

Under the provisions of 30 CFR 

732.17(h), we are seeking your 

comments on whether these 

amendments satisfy the applicable 

program approval criteria of 30 CFR 

732.15. If we approve these revisions, 

they will become part of the West 

Virginia program. 

Written Comments 

Send your written or electronic 

comments to OSM at the address given 

above. Your written comments should 

be specific, pertain only to the issues 

proposed in this rulemaking, and 

include explanations in support of your 

recommendations. We may not consider 

or respond to your comments when 

developing the final rule if they are 

received after the close of the comment 

period (see DATES). We will make every 

attempt to log all comments into the 

administrative record, but comments 

delivered to an address other than the 

Charleston Field Office may not be 

logged in. 

Electronic Comments

Please submit Internet comments as 

an ASCII, Word file avoiding the use of 

special characters and any form of 

encryption. Please also include ‘‘Attn: 

SATS NO. WV–106-FOR’’ and your 

name and return address in your 

Internet message. If you do not receive 

a confirmation that we have received 

your Internet message, contact the 

Charleston Field office at (304) 347–

7158. 

Availability of Comments 

We will make comments, including 

names and addresses of respondents, 

available for public review during 

normal business hours. We will not 

consider anonymous comments. If 

individual respondents request 

confidentiality, we will honor their 

request to the extent allowable by law. 

Individual respondents who wish to 

withhold their name or address from 

public review, except for the city or 

town, must state this prominently at the 

beginning of their comments. We will 

make all submissions from 

organizations or businesses, and from 

individuals identifying themselves as 

representatives or officials of 

organizations or businesses, available 

for public inspection in their entirety. 

Public Hearing 

If you wish to speak at the public 

hearing, contact the person listed under 

FOR FURTHER INFORMATION CONTACT by 4 

p.m. (local time), on September 12, 

2005. If you are disabled and need 

special accommodations to attend a 

public hearing, contact the person listed 

under FOR FURTHER INFORMATION

CONTACT. We will arrange the location 

and time of the hearing with those 

persons requesting the hearing. If no one 

requests an opportunity to speak, we 

will not hold a hearing. 

To assist the transcriber and ensure an 

accurate record, we request, if possible, 

that each person who speaks at the 

public hearing provide us with a written 

copy of his or her comments. The public 

hearing will continue on the specified 

date until everyone scheduled to speak 

has been given an opportunity to be 

heard. If you are in the audience and 

have not been scheduled to speak and 

wish to do so, you will be allowed to 

speak after those who have been 

scheduled. We will end the hearing after 

everyone scheduled to speak and others 

present in the audience who wish to 

speak, have been heard. 

Public Meeting 

If only one person requests an 

opportunity to speak, we may hold a 

public meeting rather than a public 

hearing. If you wish to meet with us to 

discuss the amendment, please request 

a meeting by contacting the person 

listed under FOR FURTHER INFORMATION

CONTACT. All such meetings will be 

open to the public and, if possible, we 

will post notices of meetings at the 

locations listed under ADDRESSES. We 

will make a written summary of each 

meeting a part of the Administrative 

Record. 

IV. 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 

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 

Federal Register / Vol. 70, No. 165 / Friday, August 26, 2005 / Proposed Rules 50257

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 Federallyrecognized 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 that 

our decision is on a State regulatory 

program and does not involve a Federal 

regulation 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: July 29, 2005 

Brent Wahlquist, 

Regional Director, Appalachian Region.

[FR Doc. 05–17002 Filed 8–25–05; 8:45 am] 

BILLING CODE 4310–05–P

DEPARTMENT OF EDUCATION

34 CFR Part 226 

State Charter School Facilities 

Incentive Program

AGENCY: Office of Innovation and 

Improvement, Department of Education.

ACTION: Notice of proposed rulemaking.

SUMMARY: The Secretary issues these 

proposed regulations to administer the 

State Charter School Facilities Incentive 

program. Under this program, the 

Department of Education 

(‘‘Department’’) provides competitive 

grants to States to help charter schools 

meet their need for facilities.

DATES: We must receive your comments 

on or before September 26, 2005.

ADDRESSES: Address all comments about 

these proposed regulations to Jim 

Houser, U.S. Department of Education, 

400 Maryland Avenue, SW., room 

4W245, Washington, DC 20202–6140. If 

you prefer to send your comments 

through the Internet, you may address 

them to us at the U.S. Government Web 

site: http://www.regulations.gov; or you 

may send your Internet comments to us 

at the following address: 

comments@ed.gov.

You must include the term ‘‘state 

incentive’’ in the subject line of your 

electronic message. 

If you want to comment on the 

information collection requirements, 

you must send your comments to the 

Office of Management and Budget 

(OMB) at the address listed in the 

Paperwork Reduction Act section of this 

preamble. You may also send a copy of 

these comments to the Department 

representative named in this section.

FOR FURTHER INFORMATION CONTACT: Ann 

Margaret Galiatsos or Jim Houser, U.S. 

Department of Education, 400 Maryland 

Avenue, SW., Washington, DC 20202–

6140. Telephone: (202) 205–9765 or via 

Internet: charter.facilities@ed.gov.