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

(a) We are not approving the following provisions of the proposed program amendment that West Virginia submitted on May 11, 1998:

(1) CSR 38-2-3.14, to the extent that it could be interpreted as applying to the on-site reprocessing of abandoned coal mine waste piles or to the extent that it would apply to the removal of abandoned coal refuse piles where, on average, the material to be removed meets the definition of coal in 30 CFR 700.5.

(2) CSR 38-2-3.32.g., which concerns unanticipated events or conditions.

(3) CSR 38-2-14.14.a.1., which concerns placement of excess spoil outside the permit area.

(4) CSR 38-2-23, which concerns coal extraction as part of land development activities.

(5) CSR 38-2-24.4, which concerns water quality standards for bond release.

(b) We are not approving the following provisions of the proposed program amendment that West Virginia submitted on March 14, 2000, March 28, 2000, and April 6, 2000:

(1) The proviso at W.Va. Code 22-3-23(c)(2)(C) which concerns Phase III bond release where the quality of the untreated postmining water discharged is better than or equal to the premining water quality discharged from the mining site.

(2) At CSR 38-2-7.4.b.1.C.5., the phrase, “except for ponds and impoundments located below the valley fills.”

(3) At CSR 38-2-7.4.b.1.D.2, the phrase, “except for those areas with a slope of at least 50%.”

(4) At CSR 38-2-7.4.b.1.G.1., the word “excessive.”

(5) At CSR 38-2-7.4.b.1.I., the new stocking standards for commercial forestry and forestry.

(6) At CSR 38-2-7.4.b.1.I.2., the phrase, “where there is potential for excessive erosion on slopes greater than 20%.”

(7) At CSR 38-2-7.4.b.1.I.2., the words “rock cover.”

(8) At CSR 38-2-7.4.b.1.I.3., the phrase “or, if a commercial forestry mitigation plan is submitted to the Director, and approved and completed.”

(9) The portion of CSR 38-2-7.4.b.1.I.4. concerning in-kind mitigation plans.

(10) At CSR 38-2-14.12.a.1., the term “commercial forestry.”

(c) We are not approving the following provisions of the proposed program amendment that West Virginia submitted on March 14, 2000, March 28, 2000, and April 6, 2000:

(1) At CSR 38-2-7.5.j.3.B., the phrase, “except for those areas with a slope of at least 50%” is not approved, and the phrase, “and other areas from which the applicant affirmatively demonstrates and the Director of the WVDEP finds that soil cannot reasonably be recovered” is not approved.

(2) At CSR 38-2-7.5.j.6.A., the word “excessive” in the phrase “excessive erosion” is not approved.

(3) At CSR 38-2-7.5.o.2., the new planting arrangements and stocking standards are not approved.

(4) At CSR 38-2-7.5.o.2., the words “rock cover” are not approved.

(d) We are not approving the following provision of the proposed blasting-related program amendment that West Virginia submitted on October 30, 2000, and November 28, 2001: At CSR 199-1-4.8.c, the phrase “substantial or significant” is not approved.

(e) Section 22A-3-23(c)(3) of the Code of West Virginia is found inconsistent with Section 519(c)(3) of SMCRA to the extent that it states: “Provided, however, That such a release may be made where the quality of the untreated postmining water discharged is better than or equal to the premining water quality discharged from the mining site.”

(f) Section 22A-3-12(e) of the Code of West Virginia is found inconsistent with Section 515(e) of SMCRA.

(g) [Reserved]

(h) We are not approving the following provisions of the proposed program amendment that West Virginia submitted on March 25, 2004:

(1) At CSR 38-2-7.6.e.1, the word “excessive.”

(2) At CSR 38-2-7.7.e.1, the word “excessive.”

(i) We are not approving the following provisions of the proposed program amendment that West Virginia submitted on June 13, 2005, and modified on August 23, 2005:

(1) At CSR 38-2-5.4.e.1, the words “Impoundments meeting.”

(2) At CSR 38-2-7.4.b.1.J.1(c), the deletion of the words “surface material shall be composed of soil and the materials described in subparagraph 7.4.b.1.D.”

Code of Federal Regulations

[48 FR 52053, Nov. 16, 1983, as amended at 50 FR 28323 and 28342, July 11, 1985; 55 FR 21337, May 23, 1990; 61 FR 6535, Feb. 21, 1996; 65 FR 26135, May 5, 2000; 65 FR 50430, Aug. 18, 2000; 65 FR 80328, Dec. 21, 2000; 68 FR 40167, July 7, 2003; 68 FR 68738, Dec. 10, 2003; 70 FR 6590, Feb. 8, 2005; 71 FR 10790, Mar. 2, 2006]