State Requirement: Section 22-3-13(c)(4)(D) of the West Virginia Surface Coal Mining and Reclamation Act (WVSCMRA), like Section 515(c)(4)(D) of SMCRA, provides that, in granting a permit for a mountaintop-removal mining operation, the Director must require that "no damage will be done to natural watercourses."

Area of Concern: It has been alleged that WVDEP's approval of mountaintop-removal operations that allow valley fills in streams violates the statutory requirement prohibiting the approval of mountaintop-removal operations that will damage natural watercourses.

Proposed Action: As provided in Part III, Section C of the action plan included in Appendix C, OSM has agreed to provide the State its interpretation of how the statutory requirement applies to streams that are to be filled with excess spoil during a mountaintop-removal mining operation.

State Requirements: The State regulations at CSR 38-2-3.22.f, like the Federal regulations at 30 CFR 780.21(h) and 784.14(g), provide that each permit application must contain a hydrologic reclamation plan. The plan must be specific to the local hydrologic conditions. It must contain, in the form of maps and descriptions, the steps to be taken during mining and reclamation up to the time of bond release to minimize disturbances to the hydrologic balance within the permit and adjacent areas; to prevent material damage outside the permit area; to meet applicable Federal and State water quality laws and regulations; and to protect the rights of present water users. The plan must include measures to be taken to: avoid acid or toxic drainage; prevent, to the extent possible, using the best technology currently available additional contributions of suspended solids to streamflow; provide water treatment facilities when needed; control drainage; restore, protect, or replace water supplies of present water users; address the potential adverse hydrologic consequences identified in the probable hydrologic consequences determination and include preventive and remedial measures; and restore approximate premining recharge capacity, provided that underground mining operations are exempt from this requirement.

Area of Concern: Some allege that the WVDEP has been approving permit applications without hydrologic reclamation plans that describe the steps to be taken to minimize disturbances to the hydrologic balance.

Proposed Action: As explained in Part III, Section D of the action plan included in Appendix C, OSM and WVDEP have signed a separate agreement with three other Federal agencies [U.S. Environmental Protection Agency (EPA), U.S. Army Corps of Engineers (COE), and U.S. Fish and Wildlife Service (FWS)] to study the effects of valley fills through an Environmental Impact Statement (EIS). In addition, OSM and WVDEP have agreed to develop a work plan for the current oversight year that specifically provides for the review of WVDEP decisions relating to probable hydrologic consequences, cumulative hydrologic impact assessments, and hydrologic reclamation plans for large mountaintop mines.

State Requirements: The State requirements governing contemporaneous reclamation are set forth at CSR 38-2-14.15. The specific requirements for multiple seam and mountaintop-removal mining operations are set forth in Subsections 14.15.b.5 and 14.15.b.6, respectively. Subsections 14.15.f and 14.15.g allow the WVDEP to grant variances to the contemporaneous reclamation requirements of Subsection 14.15 if, on the basis of site-specific conditions and sound scientific and/or engineering data, the applicant can demonstrate that compliance with one or more of the standards is not technologically or economically feasible.

Because the Federal time and distance requirements at 30 CFR 816.101 have been suspended indefinitely (57 Fed. Reg. 33875, July 31, 1992), there is no specific Federal time frame for reclamation against which to judge a State program. The Federal contemporaneous reclamation requirements, as set forth in 30 CFR 816/817.100, merely provide that reclamation efforts, including backfilling, grading, topsoil replacement, and revegetation, must occur as contemporaneously as practicable. OSM has advised the State that, upon the promulgation of new Federal rules, the State may have to amend its contemporaneous reclamation requirements to conform with the revised Federal standards.

Area of Concern: It has been alleged that the WVDEP is approving permit applications that do not meet the contemporaneous reclamation requirements of CSR 38-2-14.15 and that it is granting variances from these provisions that do not comply with the requirements of CSR 38-2-14.15(f).

Proposed Action: OSM recently approved a State program amendment that establishes revised standards at CSR 38-2-14.15.b and 14.15.c for contemporaneous reclamation of mountaintop-removal mining operations. As provided in Part III, Section E of the action plan included in Appendix C, OSM will ensure that its field representatives have a complete understanding of the revised State program requirements and that they will apply those standards during all oversight inspections. In addition, OSM will conduct a special study of selected mountaintop-removal operations to ensure that the State is applying its contemporaneous reclamation requirements consistently and is granting variances in accordance with the requirements of Subsections 14.15.f and 14.15.g. This evaluation will be conducted to gain a better understanding of the State's contemporaneous reclamation rules and whether their application and any variances thereto satisfy the intent and purpose of both State and Federal requirements. When assessing the State's contemporaneous reclamation requirements, OSM will give special consideration to the amount of permitted area that is being disturbed at any one time and the amount of performance bond that is required to be posted to ensure reclamation in case of forfeiture.

OSM proposed that any reforms that resulted from the draft report would be applied prospectively, and that existing mining operations, some of which were initially permitted many years ago, would be altered only to the extent practicable. OSM requested that, in addition to those permits which were examined for the draft report, the WVDEP review all existing permits with AOC variances and apply the reforms prospectively. For example, OSM proposed that the WVDEP require revisions of any permits or portions thereof that have not been reclaimed in order to ensure that final reclamation leads to an approvable postmining land use. OSM did not recommend that any areas that have been regraded or that have established vegetation be disturbed in order to address the concerns raised in the report.

Some industry representatives agreed that all reforms should be applied prospectively. They contend that operators obtained the permits after extensive review and public comment. To apply the reforms retroactively is simply not fair and could cause needless paperwork and potentially environmentally damaging consequences. Others commented that to limit the reforms resulting from the report to prospective application is both illegal and unwise. These commenters stated that any proposal to allow operations that are engaged in mining under permits which do not satisfy the mandates of State law and to continue such operations indefinitely is unlawful.

After consideration of all comments, OSM has decided that the various levels of technical deficiencies in existing permits must be addressed differently depending on the extent that the deficiency would actually cause a violation of the State program with "on-the-ground" consequences. Where the deficiency relates only to permit documentation, no retroactive correction will be required. Where the deficiency actually authorizes a postmining land use that is not provided for by the approved program, OSM and WVDEP have agreed to require that the permit and, to the degree practicable, the actual mining operation be revised. However, OSM still maintains that sites which have been backfilled, regraded, and revegetated should not be disturbed to satisfy the concerns raised in the draft report. Disturbances of this kind do not always benefit the environment. OSM and the WVDEP will examine each permit on a site-specific basis to make sure that the State's approved program is being properly enforced and any on-the-ground environmental problems identified are corrected to our mutual satisfaction.

This report focuses on the resolution of those issues identified in OSM's draft report on AOC and postmining land use. As discussed in this report, there are other issues concerning mountaintop mining that go beyond what was initially identified in the OSM draft report. Therefore, OSM and the WVDEP have decided that it is in the best interest of the citizens of West Virginia to execute an action plan that will not only address the issues relating to AOC and postmining land use, but also those other oversight and technical issues relating to mountaintop mining that have been brought to our attention.

In summary, the WVDEP has agreed to:

• Continue developing, with OSM assistance, criteria for assessing excess spoil calculations in determining AOC and implementing the concept on a pilot basis in West Virginia with the participation of industry, environmental representatives, and the public;
• Continue working with OSM through the normal oversight process to improve its data collection efforts;
• Develop procedures or revise the West Virginia program to resolve differences relating to "expected need and market data," "woodlands" and "public use" when allowing mountaintop-removal AOC variances;
• Revise existing permits that allow for unauthorized postmining land uses of "forestry" and "fish and wildlife;"
• Modify permit application forms and review documents to include specific findings for mountaintop-removal and steep-slope mining AOC variances;
• Review permits with steep-slope mining AOC variances to determine the appropriateness of the variance and the postmining land use;
• Modify the West Virginia program to limit approval of steep-slope AOC variances to the specific postmining land uses authorized under SMCRA;
• Work with OSM to further clarify how SMCRA and WVSCMRA are to be applied with regard to protecting riparian vegetation, natural watercourses, and the buffer zones of intermittent or perennial streams while still allowing the disposal of excess spoil in streams;
• Participate with OSM in the evaluation of the probable hydrologic consequences determinations, cumulative hydrologic impact assessments, and hydrologic reclamation plans of large mountaintop mining operations to ensure that adequate steps are being taken to minimize disturbances to the hydrologic balance;
• Participate with OSM in the evaluation of mountaintop mining permits to ensure compliance with the contemporaneous reclamation requirements of the approved State program; and
• Cooperate with OSM to allow oversight and technical assistance activities to occur prior to actual issuance of permits.

Again, OSM would like to express its sincere appreciation to everyone who commented on the draft report. OSM received sixty-four letters, E-mail messages, or comments on the draft report. Appendix A contains a summary of all of the comments submitted to OSM with our responses. Eighteen of the letters or messages submitted to OSM concern mining practices in Kentucky. Those documents have been copied and forwarded to the OSM Lexington Field Office for consideration. Of the forty-six documents received by OSM that pertain to West Virginia, 55 percent were submitted by private citizens, 24 percent were from environmental groups, 17 percent were from industry, and governmental agencies submitted the remaining 4 percent. The WVDEP and the National Park Service were the only State or Federal agencies to comment on the report. Fifty-four percent of the letters or messages provided specific comments on the draft oversight report, while most of the remaining comments were protesting mountaintop-removal mining.

Some commenters have asked that mountaintop-removal mining be stopped. Congress, however, specifically authorizes this form of mining under certain limited circumstances. Based on these statutory provisions, OSM has promulgated regulations which, if properly implemented, should assure that mountaintop-removal mining can be conducted in an environmentally sound manner.

As provided in Section 102 of SMCRA, a basic purpose of the Act is to assure that the coal supply essential to the Nation's energy requirements and to its economic and social well-being is provided and strike a balance between protection of the environment . . . and the Nation's need for coal as an essential source of energy. OSM, in cooperation with the State of West Virginia, is striving to achieve that balance between our need for coal and the protection of the environment with the adoption of the action plan contained in Appendix C.

Public participation is an important component of SMCRA. The Act provides for public involvement in the development, revision, and enforcement of the regulations or standards established by OSM or a State. As discussed in this report and the Appendices, issues have arisen concerning the regulation of mountaintop-removal mining that have gone unnoticed until now. OSM acknowledges that the resolution of those issues will require the collective efforts of the State, other Federal agencies, and the public. This report is the first step in that process. Once the process is completed, we believe that the environment, the public, and the coal industry will all benefit.

To encourage more public involvement, a copy of this report is being provided to all persons who commented on the draft oversight report. Copies of the final report are also being made available to the public free of charge upon request to the Charleston Field Office. In addition, the final report is being posted on OSM's web page at http://www.osmre.gov/mtindex.htm. Pursuant to OSM's oversight directive, copies of the draft and final oversight reports have also been included in the OSM oversight evaluation file at the Charleston Field Office and are available for public review.

DISPOSITION OF PUBLIC COMMENTS

a. Expressions of General Opposition to Surface Coal Mining and Specifically Mountaintop- Removal Mining

Comments: Two commenters were opposed to surface mining, rather than deep mining of coal, because of the impacts on forests and surface land uses and on water resources. One commenter also preferred underground mining methods. Another wrote in general opposition to surface mining. Several commenters expressed concerns with surface mining and its impacts on the environment in general. Several more commenters expressed general opposition to mountaintop removal operations.

Response: Both Federal and State laws allow for coal removal by surface mining methods, including mountaintop-removal and steep slope mining. Surface mining activities can be conducted in an environmentally acceptable manner. The purpose of this report was to ensure that mountaintop-removal and steep slope mining activities in West Virginia were being conducted in accordance with the special requirements prescribed by the approved State program and whether the provisions of the State program are in accordance with SMCRA.

b. OSM Should Ensure Full Compliance with SMCRA and the Approved West Virginia Program

Comments: One commenter stated that full compliance is in the best interest of the environment, the citizens, and the coal industry of West Virginia. Similarly, another commenter endorsed full compliance with current standards. One commenter provided several detailed endorsements of requiring better implementation of the West Virginia program as detailed in the report. The commenter also stated that better data is necessary to make sound decisions.

Response: OSM agrees that full compliance with an approved State program does ensure better environmental protection. OSM continually works with States to improve their permanent regulatory programs and the implementation of those programs. OSM believes that the proposed action plan described in Appendix C will ensure better implementation of the West Virginia program.

Comments: Several commenters indicated the need for OSM to take initiative in ensuring compliance with the regulatory and statutory requirements. One commenter suggested that States are unable to enforce the requirements adequately. One commenter specifically stated that no surface mining should occur unless there is full compliance with the laws. Another commenter also indicated the need for better enforcement of the laws.

Response: As mentioned above, OSM is working diligently with the States to ensure full compliance with their approved State programs. OSM firmly believes that States are capable of administering their own programs. At the time of State program approval, each State has to demonstrate its ability to enforce the proposed program. Failure to do so, would result in the disapproval of the program. Congress recognized when it passed SMCRA and gave States the right to run their own programs that a Federal presence was necessary to ensure that the programs would be properly enforced. Through oversight, OSM strives to ensure proper enforcement of those programs. This is a continual process. OSM is always looking for ways to improve oversight. However, the law does not allow OSM to abolish surface mining within a State because of poor performance by a State in the administration of its program. OSM is obligated to work with the States to improve their performance. It is through the changes that are set forth in the action plan that we hope to accomplish that goal in West Virginia.

Comments: One commenter indicated that revision of specific permits is necessary in achieving full compliance with the law and that the entirety of SMCRA's provisions should be considered in determining whether this type of mining is in compliance. One commenter echoed these concerns and indicated OSM's failure to address these problems in its oversight and failure to take action against West Virginia sidesteps its responsibilities. One commenter also raised concerns with OSM's oversight methodology. One commenter also suggests that aerial surveys be conducted to ensure compliance with permit terms and the approved program.

Response: OSM agrees that in order to achieve full compliance with the law some permits with identified deficiencies will have to be revised. OSM and the State have agreed to reevaluate all mountaintop-removal and steep-slope mining permits with AOC variances to ensure compliance with the approved State program. OSM acknowledges that, because it primarily examined on-the-ground problems in West Virginia, some permitting problems were not readily identified through oversight. However, prior to requiring a State to take further action, OSM must first produce evidence showing that the State is failing to properly enforce its program. Through the draft oversight report, OSM has demonstrated to the State that there are areas of its program that need to be strengthened. OSM and the State are now taking the required steps to improve its program through the action plan. Furthermore, as suggested, OSM and the State regularly conduct aerial surveys of operations to ensure compliance with permit and program requirements.

Comment: One commenter stated that the State has been requiring compliance with SMCRA and the approved program.

Response: Overall, the WVDEP does ensure compliance with its approved program. However, as demonstrated by the draft oversight report, there are areas that need improvement. Working together, we hope to improve the State's program and its enforcement.

c. Postmining Land Use Should Focus on Reforestation and Forestry Uses

Comments: One commenter was in favor of higher value forestry, including hardwood forests, as an integral part of postmining land uses, and opposed to cattle grazing. Several commenters supported forestry. One commenter was strongly in favor of "commercial forestry" as a postmining land use. Two commenters provided detailed comments related to reforestation and forestry on mined lands in general. One commenter also indicated the need for using native species in reforestation and reclamation and the need to maximize water available in the backfill for forestry uses. Another commenter encouraged a broader interpretation of requirements for "commercial forestry" postmining land uses.

Response: Federal and State laws dictate what postmining land uses are allowed for mountaintop-removal and steep-slope mining operations with AOC variances. As noted in the draft oversight report, the approved State program only authorizes "woodlands" as an approvable postmining land use for mountaintop-removal operations. "Forestry" is not an authorized postmining land use on sites with AOC variances. However, OSM and the State recognize the benefits of "commercial forestry." As discussed in this report, we are examining the circumstances under which "commercial forestry" could be an approvable postmining land use. The comments submitted in response to the draft report will aid us in that task.

Comments: One commenter was concerned that reclamation forests are inferior to premining woodlands.

Response: OSM agrees, that in some situations, postmining reforestation may not be as good as the premining forestland. However, research has shown that mined spoil, properly reclaimed, can be an excellent growth media for forests and may even exceed the productivity of the premining conditions. That is why it is so important that OSM, the State, and industry work together to make sure that requirements are in place to ensure that postmining reforestation is equal to or better than the premining forestlands in tree diversity and growth.

d. Postmining Land Uses Should Have Public and Environmental Benefits

Comments: Several commenters were supportive of "fish and wildlife habitat" as a preferred postmining land use. One commenter noted the importance of an economic benefit that accrues from the postmining land uses of mountaintop mines with an AOC variance.

Response: As discussed in this report and the earlier draft report, "fish and wildlife habitat" is not an authorized postmining land use for mountaintop-removal or steep-slope mining operations with AOC variances. The WVDEP has submitted a program amendment to OSM that would allow "fish and wildlife habitat and recreation lands" to be an allowable postmining land use for mountaintop-removal operations with AOC variances. OSM will be rendering a decision on that amendment within a few weeks. A copy of the decision and OSM's response to comments concerning that particular postmining land use will be published in the Federal Register. In the interim, the WVDEP has agreed not to approve any permits with the postmining land uses of "fish and wildlife habitat" or "fish and wildlife habitat and recreation lands."

Comments: Several commenters were opposed to "fish and wildlife habitat," "pastureland," or "rangeland" as postmining land uses. One commenter stated that "fish and wildlife habitat" is an illegal postmining land use. One commenter supported "commercial forestry" or "industrial" postmining land uses.

Response: As mentioned in this report, OSM will be providing the States further clarification concerning the postmining land uses that are authorized for mountaintop-removal and steep-slope mining operations with AOC variances. The State has agreed to stop issuing permits with unauthorized postmining land uses, and to amend its program to correct any deficiencies.

Comments: One commenter was in favor of a broad ecological assessment of postmining land uses and supported more detailed analysis of postmining land use proposals. Another commenter expressed that there is a need for greater review of postmining land use proposals. Still, another commenter indicated the absolute need for documented economic benefits from postmining land uses as a prerequisite for approval of operations. The same commenter stated that required findings for the need for flatter land and other related findings are essential, but not being made in postmining land use determinations.

Response: As mentioned, OSM plans to provide the States more postmining land use guidance for mountaintop-removal and steep-slope mining operations. OSM acknowledges that the current requirements need further clarification. The guidance document, once completed, should assist the States in making sure that the requested postmining land use satisfies all of the requirements of their approved programs. WVDEP's permit form and permit review procedures will be modified to ensure that future permits contain allowable postmining land uses. Revisions to the State's program will ensure that the proposed postmining land uses will be obtainable according to need and market data. In addition, as required by existing State law, the applicant must demonstrate that the postmining land use is practicable with respect to financing and completing the project. OSM will continue to monitor the State's progress in this area to ensure compliance with the approved program. It should be noted that SMCRA does not require a demonstration of "economic benefit" for each postmining land use as a prerequisite for permit approval or require a finding of the "need for flatter land" as one commenter has suggested. However, the limitations of the AOC variances to specific postmining land uses and the findings required to allow these uses do have similar results.

e. Related to or Opposed to Mining on Black Mountain in Kentucky

Comments: Several commenters opposed mining on Black Mountain, particularly by mountaintop mining. One commenter included some dissenting views on mining on Black Mountain.

Response: As mentioned in the report, 28 percent of the comments received by OSM concerned mountaintop mining in Kentucky. Since that issue is not the topic of this report, those comments have been forwarded to OSM's Lexington Field Office for consideration.

f. Opposed to Fills in Streams

Comments: Several commenters expressed specific concerns over the impact of fills on streams. One commenter also expressed concerns with the lack of information on how fills affect water resources, riparian areas, and watershed values.

Response: As discussed in this report, OSM intends to provide the State further clarification concerning the stream buffer zone requirements and how they apply to streams that are to be filled with excess spoil during mining. In addition, OSM and WVDEP will participate with three other Federal agencies (EPA, COE and FWS) in the completion of an Environmental Impact Statement (EIS) that will assess the effects of fills on intermittent and perennial streams, riparian vegetation, and other environmental values. As noted in the action plan included in Appendix C, OSM and WVDEP have also agreed to review State procedures for the hydrologic related determinations required in the permitting process for areas downstream of the fill.

g. Concerned About Effects of Flatter Lands

Comments: One commenter was concerned that the removal of mountaintops removes protection from storms. Another commenter was concerned about the ecological effects of flatter land, while another commenter stated that flatter land may lessen flooding and improve reclamation success.

Response: State and Federal laws generally require all sites after mining to be returned to their approximate original contour (AOC). However, as discussed in the report, under certain limited circumstances, the applicant may obtain a variance from the AOC requirements. As the commenters noted, the flattening of land can have both positive and negative effects. That is why it is so important during the permitting process that the regulatory authority take into consideration all of the site-specific facts and ensure that adequate safeguards are in place prior to permit approval. OSM, in cooperation with the U.S. Army Corps of Engineers, has begun a study of the flooding potential of large-scale surface mining activities. This may also be an item to be reviewed in preparation of the EIS mentioned earlier that is to be sponsored by the five agencies.

h. Need for Better Calculation of Excess Spoil

Comments: A commenter provided detailed comments on the need for material balance and spoil calculations as a part of mining and reclamation planning and permitting. Another commenter also endorsed better calculation of excess spoil. One commenter stated that excess spoil should be considered only to the extent it affects AOC. While another commenter stated that more control should be placed on allowable spoil swell factors through control of mining techniques.

Response: As discussed elsewhere in this report, OSM agrees that accurate excess spoil calculations are an important factor in determining if AOC is going to be achieved. OSM and WVDEP have developed and are testing a concept which can be easily incorporated into the existing permit review process to determine if sites are going to be returned to AOC. This concept will ensure that as much spoil as is technically feasible will be placed back upon the mountain or bench and only spoil that is truly excess will be placed in the fill. Swell factors, blasting, mining techniques, and other factors that affect excess spoil determinations will have to be given further consideration if the applicant is to demonstrate that a site can achieve AOC as clarified under this new concept.

i. Concerned that the Draft Report was Too Lenient and A Retreat from Earlier Drafts

Comments: One commenter expressed grave concerns about changes from the previously reported drafts of the report and that this suggested an unwillingness to take on "big business." Two other commenters echoed similar concerns.

Response: OSM has been unfairly criticized by the press and others who allege that the final draft oversight report was a weakened version of the earlier draft. This is simply not true. A comparison of the two reports will reveal that the basic assumptions and conclusions in the final report remained unchanged. As indicated, the earlier draft report contained partial tables, data, and information on postmining land uses and AOC in West Virginia. Some of the earlier statements that were made in the initial draft were based on incomplete information and were simply unfounded. The final draft report contains findings and analyses that support our conclusions. In its evaluation of AOC and postmining land uses in West Virginia, the final report has been viewed by many as being thorough, accurate, and impartial. OSM strives to do similar work in connection with every oversight report it produces.

j. Concerned that More Data Needed Before these Mines Should Be Allowed

Comments: Several commenters expressed support for further studies to determine the effects of mountaintop mining operations. Two commenters suggested that mining should be halted until such studies are complete. Two other commenters suggested a cumulative assessment of contiguous areas should be conducted.

Response: As discussed above, OSM and WVDEP plan to conduct an EIS with three other Federal agencies to assess the effects of large-scale surface mining operations on the environment. OSM and WVDEP will also be reviewing State procedures related to hydrologic measures considered in the permitting process. However, OSM does not have sufficient grounds to prohibit the processing of existing or future permit applications.

k. Comments Directed at Approximate Original Contour (AOC) Determinations

Comments: One commenter does not believe elevation is an appropriate factor in determining whether AOC has been achieved. Other commenters stated that configuration rather than elevation is the key factor in AOC determinations.

Response: As discussed in detail in the draft report and briefly summarized in this report, legislative history suggests that configuration or shape is a primary element of AOC. Although elevation is also a factor in considering whether AOC has been achieved, the legislative history shows that it should not be the controlling factor. OSM finds that such factors as configuration, elevation, relief, and the amount of spoil allowed in fills should all be a consideration in determining AOC. As indicated in the action plan included in Appendix C, the WVDEP, with OSM's assistance, will be testing review methods to ensure compliance with AOC requirements.

Comments: Several commenters stated that valley fills should be considered in determining whether AOC has been achieved. One commenter expressed concerns over how fills are configured in achieving AOC. Another commenter disagreed and said that fills should not be considered in AOC determinations.

Response: Fill configuration is largely a factor of stability and the postmining land use. As noted in the draft report, valley fills hold excess spoil not needed to achieve AOC. Since the Federal definition of AOC provides that valley fills are outside the mined area to which AOC applies, OSM has concluded that valley fills themselves are not subject to the AOC requirement. However, OSM has also concluded that final reclamation of the backstack and valley fill areas should exhibit relief similar to that which existed prior to mining. This is being considered in the new procedures summarized in Appendix D. This issue is presently being litigated in the case, Bragg v. Robertson , Civil Action No. 2:98-0636.

Comments: Several commenters stated that more guidance is necessary or appropriate on what constitutes AOC. One commenter, while indicating that flexible guidance may be difficult to develop, stated that it would be appropriate to develop. Another commenter stated that interim guidance and regulations clearly defining AOC may be more appropriate. Still, another commenter disagreed, stating that no further clarification is needed.

Response: Although the State program contains a definition of AOC that has been determined by OSM to be no less stringent than the Federal definition, OSM agrees that additional guidance is necessary to further clarify that definition. That is why OSM and WVDEP have agreed to form a joint technical team to develop and test a concept that focuses on excess spoil calculations. Once implemented, it is believed that the proposed concept will ensure that sites without AOC variances will be restored to AOC after mining is completed.

Comments: Several commenters stated that a limit in elevation change of 50 feet should be set in determining AOC. One commenter suggested that the elimination of the "50-foot rule" was done improperly. Several other commenters stated that elevation is a key factor in AOC determinations, along with configuration.

Response: From 1981 through approximately 1992, the State had an informal "fifty-foot rule" that was outlined in a policy directive in March 1984. The policy required that operators backfill sites to within 50 feet of their original elevations, and the regraded area had to generally conform with the premining configuration. State officials discontinued all use of the "fifty-foot rule" in 1992 and now only enforce the AOC definition as set forth in State law. The "fifty-foot rule" was never a formal rule and was inconsistently applied by the State. The new concept for determining AOC, as described further in Appendix D, considers such factors as configuration, relief, and elevation, and should provide better environmental protection than the fifty-foot rule, which primarily focused on elevation in determining AOC.

l. Comments Regarding the Implementation of Any Changes Due to the Report

Comments: One commenter stated that any new requirements should be applied prospectively, as mining operations already underway have been planned extensively. Several commenters also endorsed prospective application of any new requirements. Another commenter also stated that operators be given very specific guidance on new requirements.

Response: As discussed in this report, most new requirements will be applied prospectively. Operators will be provided information concerning any new requirements as a result of this study. In addition, they will be notified of any required changes to their permit applications. Most changes will be done in accordance with the permitting procedures set forth in the approved program.

Comments: One commenter stated that changes should be implemented immediately to correct illegal permits. Another commenter stated that changes in postmining land use designations should be made at the time of permit renewal.

Response: As noted in this report, operations with improper postmining land uses in their permits will have to be revised to conform with the State's approved program. However, no corrective action is being required for previously issued permits that may be deficient in documentation only. The schedule for revising permits with unapproved postmining land uses is discussed in Part II, Section D of the action plan included in Appendix C.

m. Comments Regarding Applying the Results of the West Virginia Study in Other States

Comments: One commenter stated that requirements should be developed on a state-by-state basis, and the West Virginia results should not be applied directly in other States.

Response: OSM does not intend to indiscriminately apply the results of the West Virginia study to other States. OSM is conducting studies in other States with similar mining practices to determine if similar problems exist. The results from those studies will be shared among the States. However, OSM will consider using what is being developed in West Virginia in the resolution of any similar issues found in those States.

n. Commenters Believe More Stringent Regulations Are Necessary

Comments: One commenter stated that additional environmental protection is necessary, but offered no specific suggestions. Another commenter stated that OSM should issue guidelines for

the reclamation practices associated with various postmining land uses. In addition, one commenter stated that additional regulation is necessary to prevent sedimentation in streams.

Response: As discussed throughout this report, OSM will be issuing additional guidance concerning requirements relating to AOC, postmining land uses, and stream buffer zones. It is believed that these guidelines will clarify and ensure better implementation of existing requirements. OSM is not aware of any need to promulgate additional regulations to prevent sedimentation in streams. The current requirements regarding sediment control, if implemented properly, already afford this protection. Part of the EIS process mentioned earlier will address whether current protection measures need to be strengthened.

o. Comments Regarding Contemporaneous Reclamation

Comments: One commenter stated that contemporaneous reclamation is not occurring at mountaintop mining operations. Another commenter stated that there should be a limit of 250 acres disturbed at one time.

Response: As discussed in this report, OSM recently approved a program amendment that establishes revised standards for contemporaneous reclamation of mountaintop-removal operations. The revised standards at CSR 38-2-14.15.b.6.A provide that disturbed and unreclaimed acreage, including the excess disposal site, cannot exceed 35 percent of the total permit acreage, or 300 acres, whichever is less. However, the Director may grant a variance not to exceed 500 acres on operations which consist of multiple spreads of equipment. In addition, subsections 14.15.f and 14.15.g provide for variances to those requirements due to technical or economic reasons. As provided in the Part II, Section E of the action plan included in Appendix C, OSM and WVDEP will conduct a special study of some mountaintop-removal mining operations to ensure that the State is applying its contemporaneous reclamation requirements consistently and is granting variances in accordance with its approved program.

p. Comments Regarding Water Flow

Comments: One commenter expressed concern that the preference for "rock flumes" creates unnatural watercourses and water discharge problems. In addition, the commenter stated that current water management techniques in reclamation are not conducive to reclamation practices involving trees.

Response: Rock flumes are sometimes necessary to control surface runoff, prevent erosion, and minimize disturbance to the hydrologic balance. Discharge structures for sediment control ponds, impoundments, and diversions are designed using standard engineering design procedures and are based to a large extent upon site conditions. OSM is not aware of any instances where the existing requirements for discharge structures are causing problems when the requirements are implemented as called for in the permit. The detailed comments concerning reclamation practices involving trees were very informative. OSM has shared those comments with the WVDEP and intends to give them additional consideration when developing further guidelines regarding postmining land uses.

Comment: Another commenter concluded that current reclamation practices result in high sediment loading to streams, which cannot be addressed purely through oversight.

Response: OSM does not believe that current reclamation practices result in high sediment loading to streams. Existing sedimentation control requirements and the revegetation standards, if properly implemented, should afford adequate environmental protection during and after mining. As discussed earlier, this issue will be considered in the completion of the EIS. It is through oversight that OSM monitors State performance to ensure that sites comply with the approved State program. The successful implementation of an approved program requires the cooperation of all parties.

q. Other Related Comments

Comments: One commenter stated that the U.S. Environmental Protection Agency (EPA) and the United States Army Corps of Engineers should conduct oversight of the State with regard to implementation of the Clean Water Act. The commenter also stated that OSM should expand the report to include an overview of blasting complaints associated with mountaintop mining. The commenter expressed concerns with stability of valley fills as a consequence of nearby underground mining operations and the relationship of the subsidence regulations to valley fills and streams. There was also a concern with regard to bond adequacy for mountaintop mining operations raised by the commenter.

Response: EPA currently monitors the State's administration of its approved program under the Clean Water Act. Comments relating to that program should be directed to EPA.

The other issues relating to blasting, fill stability in relation to underground mining and subsidence, and bonding of mountaintop mining operations were not addressed in the draft report. OSM is aware of those issues and may incorporate them into future studies that are being planned. As mentioned in this report, bonding of mountaintop-removal operations will be a special consideration in the proposed study on contemporaneous reclamation.

Comments: One commenter stated that regulations requiring or encouraging self-auditing by operators should be developed. In addition, the commenter suggested that the findings of the report call into question OSM's process for approval of State programs.

Response: Both State and Federal surface mining laws provide for mandatory enforcement. Therefore, regulations providing for self auditing cannot be promulgated under the approved program. However, voluntary compliance with the approved program is encouraged. OSM recently approved changes to the State's program which allow State inspectors to conduct

compliance audits or reviews of mine sites at the operator's request to ensure compliance with State regulations. Operators are encouraged to participate in this program.

As discussed in the draft oversight report, some differences were identified in State and Federal law which may have accounted for some of the problems that OSM identified in the report. OSM does not believe that these problems warrant a change in OSM's State program approval process. The current program approval process is dynamic and allows for continual change and improvement in State programs. It is through this process that OSM will continue to monitor and, if necessary, notify the State whenever a revision to its approved program is required.

DIVISION OF ENVIRONMENTAL PROTECTION

Office of Mining and Reclamation

CECIL H. UNDERWOOD 10 McJunkin Road

GOVERNOR Nitro, WV 25143-2506

304-759-0510 Fax- 304-759-0528

January 11, 1999

Ms. Patricia Hairston

Office of Surface Mining

1951 Constitution Avenue

Washington, DC 20240

Dear Ms. Hairston:

The West Virginia Division of Environmental Protection is submitting comments regarding the Draft West Virginia Oversight Evaluation Report entitled Approximate Original Contour and Postmining Land use for evaluation year 1998.

Page A-36 a.: Approximate Original Contour (AOC)

"OSM's oversight evaluation indicates an industry trend of proposing to return mine sites to AOC rather than obtaining an AOC variance. Also, the evaluation revealed that policies or procedures used for determining when a mining operation's reclamation plan satisfies requirements established for AOC are either applied inconsistently or are overly broad, resulting in varied interpretations of what constitutes AOC."

DEP Response: Some of the operations contained in this report were issued prior to West Virginia obtaining primacy in 1981. WVDEP does not believe it is realistic to compare today's standards to those that were used 20 years ago because rules and interpretations of the rules have changed. Furthermore, OSM did state in the report that there was no record of any objections to the WVDEP's determination of AOC for a particular permit. The WVDEP believes that it is properly interpreting the AOC requirements of SMCRA.

Due to lack of objective criteria in either the State or Federal Programs, it is inevitable that variations in interpretations and applications will occur. The establishment of objective criteria by the appropriate federal agency with consultation with the various states will resolve the issue.

Page A-37 b. Mine Classification and Inventory

"A major source of confusion over what qualifies as "mountaintop-removal" mining operations, which require a variance from AOC, can be attributed to WVDEP's method of classifying, in its permitting database, various mining methods as mountaintop operations regardless of whether an AOC variance has been obtained or not."

DEP Response: The WVDEP considers mountaintop removal as a "method" of mining. If the post mining land configuration constitutes flat to gently rolling with inward drainage then a variance is required. WVDEP wants to re-emphasize a statement contained in the report that it is not required by State or Federal law to track this type of information. However, the WVDEP revisited the classification issue and updated the database to more accurately reflect actual mine classification.

In addition, the WVDEP has submitted a rule change to the 1999 Legislature to further clarify mountaintop removal and area mine operations.

Page A-38 c.1. Approved Program Language Differences

"OSM identified three significant areas in which the language of the approved State Program differs from that of SMCRA and the Federal regulations. These language differences, which may have contributed to some of the other problems addressed in this report, relate to the following areas: (1) documentation of the need and market for the designated postmining land use, (2) use of "woodlands" as an approved postmining land use, and (3) allowing "public use" instead of "public facility (including recreational facilities) use" as a postmining land use."

DEP Response: The WVDEP recognizes approved program language differences. (1) The Governor's Task Force on mountain-top removal recommended that market needs analyses be conducted in accordance with guidelines set forth by the WV Development Office before mountain-top removal variances are granted. The WVDEP will work with the appropriate agencies to develop this process. (2) The WVDEP will evaluate the procedures used to approve woodlands and ensure that the appropriate findings are made before approval of a woodlands postmining land use on areas where mountain-top removal variances have been requested.

Page A-39 c.2. Postmining Land Uses not Authorized by State Program

"The oversight evaluation found that mountaintop-removal permits have been issued with postmining land uses - "forestry" and "fish and wildlife habitat" - not authorized in the approved State Program, although a program amendment to authorize "fish and wildlife habitat and recreation lands" is pending before OSM."

DEP Response: Prior to OSM's request that the WVDEP discontinue approving permits with a Fish and Wildlife Postmining Land Use, the WVDEP had stopped issuing permits with a Fish and Wildlife Postmining Land Use. WV Program allows for commercial woodland to be utilized on mountaintop removal operations with AOC variances. WVDEP does not understand how OSM determined "forestry" is not within the State Approved Program. At mid-term review or renewal, the WVDEP will ensure that all permits will be reviewed for compliance with all requirements of the approved program.

Page A-40 3. Inadequate Permit Documentation

OSM found that all of the mountaintop-removal permits with AOC variances lacked at least some of the documentation required for approving the designated postmining land use."

DEP Response: The WVDEP believes that most of the determinations needed to grant AOC variances are implicitly considered in the application review process. However, the WVDEP will revise its facts and findings documentation to address OSM's concerns.

Page A-41 d.1. Appropriateness of Variance Type

"In the review, OSM found four situations where steep-slope AOC variances had been granted, but where mountaintop-removal AOC variances would have been more appropriate because the entire coal seam or seams had been removed."

and

Page A-41 d.2. Program Language Differences

"The approved West Virginia program does not limit approval of an AOC variance for a steep-slope mine to the specific postmining land uses that are specified in SMCRA.

DEP Response: The pending regulation change submitted to the 1999 legislature will clarify the differences between AOC variances on steep slope operations and AOC variances on mountain-top removal operations. The WVDEP will, upon passage by the legislature, submit a program amendment to OSM concerning this issue and the WVDEP will not issue any permits with steep slope variances that don't comply with proposed program language.

In closing, the WVDEP agrees that these issues need clarification to insure consistency between the states. Please be assured that we will be readily available to provide assistance in any area that may be required or requested by OSM.

Sincerely,

John C. Ailes

John C. Ailes, Chief

Office of Mining and Reclamation

a. Approximate Original Contour

OSM acknowledged in the draft report that none of the comments from the public objected to any particular AOC determinations made by the WVDEP. In addition, OSM recognized that some of the permits under review had been initially issued prior to the effective date of SMCRA. State and Federal law, however, require that all permits be revised to conform with new program requirements. While the State believes that it has been properly interpreting its AOC requirements, the oversight report revealed that the State has not been consistent in its application of those requirements. OSM also agrees that the lack of specific criteria in the program may have led to variations in interpretation and application of the State's AOC requirements. Therefore, OSM believes that it is necessary to clarify the existing AOC requirements further. The development and implementation of the concept proposed by OSM that shows what portion of spoil material created during mining is excess and what portion must be returned to the mined area to achieve AOC and that is discussed both in the action plan included in Appendix C and in Appendix D should enable us to achieve that goal.

b. Mine Classification and Inventory

As discussed in the draft report, neither State nor Federal law requires a regulatory authority to track mountaintop-removal operations and associated waivers. OSM acknowledges that the State has revisited this issue and updated its database to reflect mine classification types and variances more accurately. OSM appreciates the State's efforts in this area. OSM will continue to work with the WVDEP in improving its database to track State permitting, inspection, and enforcement actions.

c. Approved Program Language Differences

OSM has acknowledged that differences between language of SMCRA and the approved program pertaining to mountaintop-removal mining may have contributed to some of the problems identified in the draft oversight report. The WVDEP recognizes these differences and has agreed to develop additional guidelines for assessing market need and on whether "commercial forestry" constitutes a permissible postmining land use. Part II, Section C of this report and the action plan included in Appendix C contain detailed discussions of the program differences and both agencies' plans for resolving those issues.

d. Postmining Land Uses not Authorized by State Program

OSM acknowledged in the draft oversight report that some mountaintop-removal permits had been issued with unauthorized postmining land uses of "forestry" and "fish and wildlife habitat." The WVDEP notes that it had already stopped issuing permits with a "fish and wildlife" postmining land use before OSM requested it to do so. In addition, the WVDEP questioned how OSM determined that "forestry" is not within the approved program, but it agreed to review all permits at mid-term review or renewal to ensure compliance with approved program requirements. OSM agrees that "forestry" is an allowable postmining land use for mountaintop mining operations that intend to restore the land to approximate original contour (AOC) after mining, but "forestry" is inappropriate for mountaintop-removal operations with AOC variances. "Woodlands," as defined by CSR 38-2-2.134, is allowable provided that it is demonstrated that the flat land is essential for the operation of mechanical harvesting equipment. As discussed in this report and the action plan included in Appendix C, OSM and WVDEP have committed further to clarify the circumstances under which commercial tree growing and harvesting practices may justify an AOC variance.

e. Inadequate Permit Documentation

The WVDEP stated that although it believes that most of the AOC variance determinations are implicitly considered in the application review process, it will revise its fact and findings documentation to address OSM's concerns with respect to permit documentation. As discussed in this report and in the action plan included in Appendix C, OSM does not propose to require corrective action in cases where the only problem with an outstanding permit is that it was issued without adequate documentation. However, the WVDEP may have to revise its permit application form and permit review documents to ensure that, in the future, the WVDEP issues permits only in cases where the documentation is adequate.

f. Appropriateness of Variance Type and Program Language Differences Involving Steep-Slope Mining

As discussed in the draft oversight report, OSM identified four situations where steep-slope AOC variances had been granted, but where mountaintop-removal AOC variances would have been more appropriate because the entire coal seam or seams had been removed. In addition, OSM concluded that the State program does not limit the approval of AOC variances for steep slope mining operations to the postmining land uses specified in SMCRA. The WVDEP informed OSM that it has submitted revised regulations to the Legislature that should clarify the differences between steep-slope and mountaintop-removal AOC variances. Furthermore, the WVDEP has agreed not to issue any permits with steep-slope AOC variances that do not comply with the proposed program language. As discussed in this report and the action plan included in Appendix C, the WVDEP has agreed to review all permits with steep-slope AOC variances to determine if a mountaintop-removal AOC variance would have been more appropriate. The State will also require corrective action for those steep-slope mining operations with inappropriate postmining land uses.

WVDEP/OSM ACTION PLAN FOR RESOLVING MOUNTAINTOP MINING ISSUES

I. PURPOSE

The Office of Surface Mining Reclamation and Enforcement (OSM) and the West Virginia Division of Environmental Protection (WVDEP) recognize that there are outstanding issues and questions related to mountaintop mining practices which need to be addressed as priority items between the two agencies. The following action elements include all issues identified in "OSM's Evaluation of Approximate Original Contour and Postmining Land Use in West Virginia" and some other related issues that have been brought to our attention through litigation, public participation or normal oversight. As a result of this agreement, both parties are committing to activities which should ensure the timely and effective resolution of all known issues relating to mountaintop mining practices in West Virginia.

II. OSM'S EVALUATION OF APPROXIMATE ORIGINAL CONTOUR AND POSTMINING LAND USE IN WEST VIRGINIA

A. Approximate Original Contour

Issue: OSM's oversight evaluation indicated an industry trend toward proposing to return mine sites to approximate original contour (AOC) rather than obtaining AOC variances. Also, the evaluation revealed that policies or procedures used for determining when a mining operation's reclamation plan satisfies requirements established for AOC were either applied inconsistently or were too broad, resulting in varied interpretations of what constitutes AOC.

Proposed Action: OSM and WVDEP will form a joint technical team to refine and test a concept proposed by OSM that shows what portion of spoil material created during mining is excess and what portion must be returned to the mined area to achieve AOC. Meetings will be scheduled with the public, industry, environmental representatives and other interested parties to explain the concept. Once fully reviewed and tested, the concept will be adapted and used by the WVDEP during its permit review process to determine more objectively when a site will be returned to AOC and how much excess spoil may be placed outside the mined area. It is anticipated that the new guidance will help the WVDEP achieve more consistent AOC determinations.

OSM will work closely with the WVDEP in implementing the concept and will use what it learns when it determines whether need exists for further action on a national or regional level with respect to AOC. OSM will continue its review of AOC in States with mining practices similar to those in West Virginia and will consider using the approach that is being developed in the West Virginia pilot project to help resolve any problems it may discover in those States. Kentucky and Virginia, in addition to West Virginia, have already expressed their willingness to participate in AOC discussions with OSM. OSM agrees to participate with any team of States formed to consider AOC or to evaluate the new procedures.

Action Date: WVDEP and OSM have already formed a team to test a new approach for addressing the issue of excess spoil. WVDEP and OSM have jointly developed a description of how the new concept will be applied during the course of AOC determinations. OSM will assist the WVDEP in presenting this concept to the public prior to its implementation. Once fully reviewed and tested, the concept will be adapted and used by the WVDEP during its permit review process. The WVDEP will begin applying the concept to all new permit applications, including the mining applications that are pending WVDEP approval and that, because of the size of the proposed fills, appear likely to require an individual Clean Water Act 404 Permit. Three months after the WVDEP begins applying the new procedures, OSM and WVDEP will evaluate the implementation of the concept in writing to determine if further action on AOC is needed on a national or regional basis.

B. Mine Classification and Inventory

Issue: A major source of confusion over what qualifies as "mountaintop-removal" mining operations, which require a variance from AOC, arises from WVDEP's method of classifying, in its permitting database, various mining methods as mountaintop operations, regardless of whether an AOC variance has been obtained or not.

Proposed Action: Although State or Federal laws do not require the tracking of mountaintop mining operations and associated waivers, the WVDEP has revised its permitting database to clearly identify which sites should be classified as "mountaintop-removal" operations. Through its inspection workforce, the WVDEP has reviewed all its current permits to assure that the proper classification of mining type and applicable AOC waiver was reflected in the database. The WVDEP has now collected information regarding all types of variances, including mountaintop-removal and steep-slope AOC variances, and the information has been uploaded into WVDEP's Environmental Resources Information Network.

Action Date: This task has been completed. OSM will continue working with the WVDEP through the normal oversight process to improve the State's data collection efforts.

C. Mountaintop Removal AOC Variances - Approved Program Language

Differences

Issue: OSM identified three significant areas in which the language of the approved State program differs from that of the Surface Mining Control and Reclamation Act of 1977 (SMCRA) and its implementing regulations. The language differences pertain to the following areas regarding mountaintop-removal mining operations with AOC variances: (1) demonstration of the expected need and market for the designated postmining land use, (2) use of "woodlands" as an approved postmining land use, and (3) allowing "public use" instead of "public facility (including recreational facilities) use" as a postmining land use. WVDEP and OSM plan to address each of these issues separately as follows:

Proposed Action: Expected need and market data - The State believes that its existing program gives it sufficient authority to satisfy this requirement without rulemaking. The WVDEP will consider OSM's oversight report and the recommendations from the "Governor's Task Force on Mountaintop Mining and Related Practices" to develop guidance for its permit reviewers to ensure consideration of expected need and market data requirements. The WVDEP may use the criteria that the State's Economic Development Authority uses to evaluate areas for economic development. The WVDEP agrees not to approve any more mountaintop-removal permits with AOC variances without having the required information regarding expected need and market data.

Proposed Action Date: Develop and distribute procedures for evaluating mountaintop-removal permits with AOC variances to ensure compliance with the expected need and market data requirements by May 28, 1999.

Proposed Action: Commercial Woodlands - OSM will issue a guidance document to clarify which postmining land uses are permissible for AOC variance sites. OSM will clarify the circumstances under which certain commercial tree growing and harvesting practices may justify an AOC variance. The WVDEP will submit other criteria which may demonstrate that "commercial forestry" constitutes a permissible postmining land use on mountaintop-removal and steep-slope mining operations with AOC variances. The State also plans to submit additional clarification as to how it interprets its regulations at CSR 38-2-2.134 regarding mechanical harvesting. OSM and WVDEP anticipate that this information will eventually be used as the basis for a State program amendment. Permits with mountaintop-removal AOC variances that have "woodlands" as a current postmining land use must comply with the existing program requirements until the new standards are developed and approved by OSM.

Proposed Action Date: By June 14, 1999, the WVDEP will submit for OSM's consideration additional information further explaining its existing program requirements regarding "woodlands" and setting forth any additional criteria relating to "commercial forestry" as an approvable postmining land use. After considering this information, OSM will determine whether the WVDEP must submit a formal program amendment to implement the suggestions. OSM intends to publish its position on all postmining land uses related to AOC variances by July 12, 1999.

Proposed Action: Public Use/Public Facility - The OSM guidance document on postmining land use will further clarify the use of these terms as set forth in Subsections 515 (c) and (e) of SMCRA. OSM will also provide some clarification of the term "public use" in its decisions on a pending State program amendment concerning "fish and wildlife habitat and recreation lands." The WVDEP will not allow the postmining land use of "fish and wildlife habitat and recreation lands" unless OSM first approves the State program amendment that seeks to establish this use.

Proposed Action Date: OSM will publish its decision on the pending program amendment on fish and wildlife habitat and recreation lands" by April 28, 1999. OSM intends to publish additional guidance on postmining land uses related to AOC variances by July 12, 1999.

D. Postmining Land Uses

Issue: OSM's oversight evaluation found that the WVDEP has issued mountaintop-removal permits with postmining land uses--"forestry" and "fish and wildlife habitat"--not authorized in the approved State program.

Proposed Action: The WVDEP will immediately discontinue approving permits with unauthorized postmining land uses of "forestry" and "fish and wildlife habitat." In addition, the WVDEP will not release bonds at sites where the postmining land use is unauthorized. The WVDEP will review the postmining land uses of all existing mountaintop-removal mining permits with AOC variances and require permit revisions to ensure that the postmining land use clearly allowable under the State program will be achieved prior to bond release. Permit renewals or any significant revisions with unauthorized postmining land uses that come due or are submitted during the interim period that these clarifications are being developed will be conditioned to provide that the postmining land use may have to be revised as contemplated by this agreement.

Action Date: As discussed above, both OSM and WVDEP have committed to further efforts to clarify requirements for postmining land uses related to "commercial forestry" and "public use" and OSM is reviewing a State program amendment for "fish and wildlife habitat and recreation lands."

Permit revisions will be ordered within nine months of these clarifying actions as follows:

Within three months of these clarifying actions, the WVDEP will identify all applicable permits with postmining land uses not exactly specified by the approved program. Within six months after identification of permits with questionable postmining land uses, the WVDEP will complete a more detailed review of each permit to determine if the questionable land use and AOC variance applied to all or just a portion of the permit. The WVDEP will then require operators, through an official order, to revise all or portions of the permit to reflect an approvable postmining land use. The permitting requirements of the approved State program will determine the completion date of these efforts, but in no event, will bonds be released where the postmining land use is not allowed by the State program.

E. Inadequate Permit Documentation

Issue: OSM found that all of the mountaintop-removal permits with AOC variances lacked at least some of the documentation required for approving the designated postmining land use. OSM has requested WVDEP to initiate an immediate review of its permit application and permitting process to ensure that the program requirements are being fully implemented.

Proposed Action: No corrective action will be required for previously issued permits. The State will review and, if necessary, revise its permit application form and expand the section of the permit review document (blue book) that addresses AOC variances. This section of the blue book will be expanded to include specific language from the regulations regarding variances or, where the information can be found, to refer to the applicable sections of the permit application.

Action Date: The State will review its application form and revise the facts and findings section of its blue book by May 21, 1999.

F. Steep-Slope Mining Operations with AOC Variances

Issue: OSM identified four situations where steep-slope AOC variances had been granted, but where mountaintop-removal AOC variances would have been more appropriate because the entire coal seam or seams had been removed.

Proposed Action: The WVDEP will review all permits with steep-slope AOC variances to determine if a mountaintop-removal AOC variance would have been more appropriate. In those cases where a mountaintop-removal variance should have been issued, the WVDEP will determine if the permit's postmining land use would still be allowable for a mountaintop-removal AOC variance. If the postmining land use is allowable, then no further action would be required. If, however, the change in the type of AOC variance makes the postmining land use inappropriate, the State will require corrective action through an ordered permit revision. Permit renewals or any significant revisions with unauthorized postmining land uses that come due or are submitted during the interim period while these policy clarifications are being developed will be conditioned to provide that the postmining land use may have to be revised as contemplated by this agreement.

Action Date: As discussed above, both OSM and WVDEP have committed to further efforts to clarify requirements for postmining land uses related to "commercial forestry" and "public use" and OSM is reviewing a State program amendment for "fish and wildlife habitat and recreation lands."

Permit revisions will be ordered within nine months of these clarifying actions as follows:

Within three months of the program clarifications, the WVDEP will identify all permits with steep-slope AOC variances. Within six months of identification, the WVDEP will complete its review of the permits to determine if the variance type was appropriate and, if not, whether the change in variance type would also affect the type of postmining land use allowed. The WVDEP will then order operators with inappropriate steep-slope AOC variances and related postmining land use concerns to revise the permits. The completion date for these efforts will be determined by the permitting process set forth in the approved State program, but in no event, will bonds be released where the postmining land use would be inappropriate for the actual type of AOC variance which should be required.

G. Program Language Differences on Postmining Land Uses for Steep-Slope Mining Operations

Issue: The approved West Virginia program does not limit approval of an AOC variance for a steep-slope mine to the required postmining land uses that are specified in SMCRA.

Proposed Action: The WVDEP, as required by OSM, has filed a proposed rule with the West Virginia Legislative Rulemaking Review Committee to address this issue [30 CFR 948.16 (mmm)]. The State has agreed not to issue any more steep-slope AOC variances that would violate the proposed amendment presented to the Legislature. The WVDEP will propose to expand the postmining land use requirements for steep-slope mining operations to include "commercial forestry."

Action Date: The proposed program amendment is anticipated to be submitted by May 14, 1999.

III. OTHER AREAS OF CONCERN REGARDING MOUNTAINTOP MINING

Both parties acknowledge that there are other issues relating to mountaintop mining not addressed in OSM's draft report that have been bought to their attention through litigation, public participation or normal oversight and which require further consideration. These issues relate not only to the administration of the approved State program, but also to the interpretation of various SMCRA provisions and State program requirements. This part of the agreement is intended to promote better understanding of these additional issues and of the proposed actions that will be taken by both agencies in order to ensure that the State program and its implementation are consistent with the Federal requirements.

A. Stream Buffer Zone Findings and Variances

Issue: There are concerns that the WVDEP has been approving permit applications without first making the findings required to permit land within the buffer zones of intermittent and perennial streams to be disturbed. In addition, it is alleged that the variances allowing surface coal mining operations to disturb land within stream buffer zones should be granted only for minor incursions into a stream, not for activities that bury substantial portions of the stream.

Proposed Action: OSM agrees to provide its interpretation of how the Federal buffer zone requirements apply to streams which are to be filled with excess spoil during a mining operation. In addition, the WVDEP will reevaluate its permit review process to ensure that permit applications requesting variances contain the appropriate demonstrations regarding stream protection.

Action Date: July 2, 1999.

B. Riparian Vegetation

Issue: There are concerns that valley fills violate the State program provisions requiring protection of riparian vegetation.

Proposed Action: OSM agrees to provide its interpretation of how this requirement applies to riparian vegetation in areas covered with excess spoil during a mining operation.

Action Date: July 2, 1999

C. Damage to Natural Watercourses

Issue: There are concerns that allowing valley fills in streams violates the requirement prohibiting the approval of mountaintop-removal operations that will damage natural watercourses.

Proposed Action: OSM agrees to provide its interpretation of how the statutory requirement applies to streams which are to be filled with excess spoil during a mountaintop-removal mining operation with an AOC variance.

Action Date: July 2, 1999

D. Hydrologic Reclamation Plan

Issue: There are concerns that the WVDEP has been approving permit applications without hydrologic reclamation plans that describe the steps to be taken to minimize disturbances to the hydrologic balance.

Proposed Action: OSM and WVDEP have signed a separate agreement with three other Federal agencies [U.S. Environmental Protection Agency (EPA), U.S. Army Corps of Engineers (COE) and U.S. Fish and Wildlife Service (FWS)] to study the effects of valley fills through an Environmental Impact Statement (EIS). In addition, OSM and WVDEP will develop an oversight work plan during the current evaluation year which specifically reviews WVDEP decisions relating to probable hydrologic consequences, cumulative hydrologic impact assessments and hydrologic reclamation plans for large mountaintop mines.

Action Date: A separate agreement will establish the schedule for the EIS. OSM and WVDEP will complete the review of the State's hydrologic permitting practices by September 30, 1999.

E. Contemporaneous Reclamation

Issue: There are concerns that the WVDEP has been approving permit applications that do not meet the contemporaneous reclamation requirements of CSR 38-2-14.15 and that it has been granting variances from these provisions that do not comply with the requirements of CSR 38-2-14.15.f.

Proposed Action: OSM recently approved a program amendment which establishes revised standards for contemporaneous reclamation of mountaintop-removal mining operations. OSM will ensure that its field representatives have a complete understanding of the State program requirements and that they will apply those standards during all future oversight inspections. In addition, OSM and WVDEP will conduct a special study of selected mountaintop-removal mining operations to ensure that the State is applying its contemporaneous reclamation requirements consistently and is granting variances in accordance with the requirements of CSR 38-2-14.15.f and 14.15.g. This evaluation will enable both agencies to gain a better understanding of the State's contemporaneous reclamation rules and whether their application and any variances thereto satisfy the intent and purpose of both State and Federal requirements. To ensure reclamation in the event of forfeiture, OSM will give special consideration to the amount of permitted area that is being disturbed at any given time and the amount of performance bond that is required to be posted.

Action Date: In cooperation with the WVDEP, OSM will develop a work plan to evaluate contemporaneous reclamation in the State within 30 days of the execution of this agreement. OSM and WVDEP will complete the evaluation by September 30, 1999.

IV. OSM Oversight and Technical Assistance

OSM and WVDEP agree that OSM oversight of compliance with the actions in this agreement will be conducted through spot sampling of activities in the permitting process. OSM intends that this verification will be done primarily as technical assistance before permits are issued or revisions required.

V. Modification to this Agreement

Both parties recognize that such outside factors as litigation or further negotiation with other State or Federal agencies may impact on the actions or dates in this agreement. Therefore, either party may initiate modifications to this agreement with the written concurrence of the other party at any time.

Concurrence by:

/s/ Michael P. Miano

__________________________________________________

Michael P. Miano, Director

West Virginia Division of Environmental Protection

April 27, 1999

Date

/s/ Roger W. Calhoun

___________________________________

Roger W. Calhoun, Director

Charleston Field Office

Office of Surface Mining

April 27, 1999

Date