W. Va. Code R. § 38-2-5

Current through Register Vol. XLI, No. 24, June 14, 2024

Section 38-2-5 - Drainage and Sediment Control Systems

5.1. Natural Drainways. Natural drainways in the permit area shall be kept free of overburden except where overburden placement has been approved. Overburden placement and haulageways constructed across natural drainways shall not materially increase the sediment load, or materially affect stream quality.

5.2. Intermittent or Perennial Stream.

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

5.3. Stream Channel Diversions and Diversion Ditches.

5.3.a. All stream channel diversions and diversion ditches shall be designed for safety and stability, shall be constructed in such a manner so as to avoid additional contributions of suspended solids to streams, and shall provide protection against flooding and resulting damage to life and property. The design and construction shall be certified by a registered professional engineer.

5.3.b. Stream Channel Diversions:

5.3.b.1. Temporary and permanent stream channel diversions shall be designed so as to have at a minimum the capacity to carry the flow of the existing stream channel. The maximum flow carrying capacity of the existing stream channel shall be determined on the basis of cross-sectional area of the stream channel at points immediately upstream and downstream of the segment to be diverted. A combination of the cross-sectional area of the stream channel diversion, the stream bank, and the flood- plain configuration shall be adequate to pass safely the peak runoff of a ten (10) year, twenty-four (24) hour precipitation event for a temporary stream channel diversion and a one hundred (100) year, twenty- four (24) hour precipitation event for a permanent stream channel diversion.

5.3.b.2. The following information shall be made a part of the permit application when stream channel diversions are proposed:

5.3.b.2.A. "stream channel design computation sheet" for each proposed temporary or permanent stream channel diversion;

5.3.b.2.B. Construction plans which contain:

5.3.b.2.B.1. A plan view of the area showing center line profiles of the existing stream channel and proposed Location of the temporary or permanent stream channel;

5.3.b.2.B.2. A profile along the center line of the existing stream channel showing gradient of the stream bottom and top of channel;

5.3.b.2.B.3. A profile along the center line of the proposed temporary or permanent stream channel diversion showing gradient of the stream bottom and top of channel;

5.3.b.2.B.4. A cross section showing original ground limits, bottom width, side slopes, depth of flow, floodplain configuration; and

5.3.b.2.B.5. A detailed description of the sequence of installation of temporary or permanent stream channel diversion.

5.3.b.2.C. Construction specifications; and

5.3.b.2.D. Maintenance schedule and procedures for maintenance.

5.3.c. Diversion Ditches:

5.3.c.1. Diversions shall have the capacity to pass safely the peak discharge from a ten (10) year, twenty-four (24) hour precipitation event.

5.3.c.2. Plans, Design Data and Specifications. Where the permit application proposes the use of diversion ditches, the drainage plan shall contain the following:

5.3.c.2.A. A "Diversion Design Computation Sheet" for each proposed diversion;

5.3.c.2.B. Construction plans showing:

5.3.c.2.B.1. A surveyed profile along the center line of the diversion showing the original ground line and proposed depth of the diversion;

5.3.c.2.B.2. A cross section showing the original ground line, bottom width, side slopes, depth of flow, freeboard and other pertinent information;

5.3.c.2.B.3. The type of soil in which the diversion will be excavated. The soil shall be sampled and classified at five hundred feet (500') intervals along the center line of the diversion;

5.3.c.2.B.4. The type and design of the outlet proposed for each diversion;

5.3.c.2.B.5. A maintenance schedule and procedures for maintenance;

5.3.c.2.B.6. Construction specifications; and

5.3.c.2.B.7. A vegetation plan.

5.4. Sediment Control.

5.4.a. General.

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 inspect 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, D.C.

5.4.b. Design and Construction Requirements. All sediment control or other water retention structures used in association with the mining operation shall:

5.4.b.1. Be constructed in accordance with the plans, design criteria, and specifications set forth in the preplan. Any deviations from the approved preplan which result from unforeseen site specific circumstances arising during construction, shall be reflected in as-built plans submitted by the operator and approved by the Secretary immediately following construction. The as-built plans shall indicate the original design, the extent of changes, and reference points. Sediment control structures shall be certified in accordance with the requirements of subdivision 5.4.d. of this subsection.

5.4.b.2. Be located as near as possible to the disturbed area and out of perennial streams unless the applicant demonstrates and the Secretary finds that there is no other suitable Location for such structures.

5.4.b.3. Comply with applicable State and Federal water quality standards and meet efficient limitations as specified in an NPDES permit for all discharges.

5.4.b.4. Have the capacity to store 0.125 Acre/ft. of sediment for each acre of disturbed area in the structures watershed; provided, that consideration may be given for reduced storage volume where the preplan and site conditions reflect controlled placement, concurrent reclamation practices, or use of sediment control structures; provided further, that reduced storage volume will be approved only where the operator demonstrates that the effluent limitations of subdivision 14.5.b of this rule will be met. The disturbed area for which the structure is to be designed will include all land affected by previous surface mining operations that are not presently stabilized and all land that will be disturbed throughout the life of the permit. All sediment control systems for valley fills, including durable rock fills, shall be designed for the entire disturbed acreage of the fill and shall include a schedule indicating timing and sequence of construction over the life of the fill.

5.4.b.5. Be equipped with a nonclogging dewatering device of an adequate design and size to maintain the storage requirements of paragraph 5.4.b.4, of this subdivision.

5.4.b.6. Be designed, constructed and maintained to prevent short-circuiting.

5.4.b.7. Be cleaned out when the sediment accumulation reaches sixty percent (60%) of design capacity. Clean-out elevation shall be to a level so as to restore design storage capacity as indicated on plans submitted for each structure. Sediment removal and disposal shall be done in a manner and at a frequency that minimizes adverse impacts on surface and groundwater quality.

5.4.b.8. Be designed to safely pass a twenty-five (25) year, twenty-four (24) hour precipitation event. The combination of both principal and/or emergency spillway of the structures shall be designed to safely pass the peak discharge of a twenty-five (25) year, twenty-four (24) hour precipitation event, provided, that a single open channel spillway may be used only if it is of non-erodable construction and designed to carry sustained flows; or earth or grass-lined and designed to carry short term, infrequent flows at non-erosive velocities where sustained flows are not expected; provided, however, that this subsection does not apply to haulroads.

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.

5.4.b.10. Provide that an impoundment meeting the size or other criteria of 30 CFR 77.216(a) or W. Va. Code §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 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 §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.

5.4.b11. Control discharge by use of energy dissipaters, riprap channels or other devices to reduce erosion, to prevent deepening or enlargement of stream channels and to minimize disturbance of the hydrologic balance. Discharge structures shall be designed using standard engineering procedures. The Location of discharge points and the volume to be released shall not cause a net increase in peak runoff from the proposed permit area when compared to pre-mining conditions and shall be compatible with the post-mining configuration and adequately address watershed transfer.

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.

5.4.b.13. Prior to construction, all such structures shall be certified to be in accordance with design requirements of the Act, this rule, and other design criteria established by the Secretary.

5.4.c. In addition to the requirements of subsection (b) of this section, all embankment type sediment control or other water retention structures shall be designed, constructed and maintained to meet the following safety standards:

5.4.c.1. Embankment type sediment control and water retention structures shall be designed with a combination of principal and/or emergency spillways that will safely pass a twenty-five (25) year, twenty-four (24) hour precipitation event. The principal spillway requirements may be waived if the emergency spillway is an open channel constructed of nonerodable material, is capable of maintaining sustained flows, and is designed to safely pass the peak discharge of a twenty-five (25) year, twenty-four (24) hour precipitation event;

5.4.c.2. All embankment type sediment control or water retention structures shall be properly stabilized and revegetated upon completion of construction and regrading of the embankment and surrounding areas;

5.4.c.3. In constructing the embankment, the operator shall remove all organic matter from the foundation, install cutoff trenches where necessary to ensure stability, provide for proper compaction and ensure against excessive settlement by excluding sod, roots, frozen soil or coal processing wastes from the embankment;

5.4.c.4. If an inspection or examination discloses that a potential hazard exists, the person who inspected or examined the embankment shall promptly inform the Department of Environmental Protection of the findings and of the emergency procedures formulated for public protection and remedial action. If adequate procedures cannot be formulated or implemented, the Department of Environmental Protection shall be notified immediately and then notify the appropriate agencies that other emergency procedures are required to protect the public;

5.4.c.5. A sediment control or water retention structure which is constructed in such a manner that it:

(1) Rises twenty-five (25) feet or more above the natural bed of a stream or watercourse as measured from the downstream toe of the embankment and which does or can impound fifteen (15) acre-feet or more of water; or,

(2) Rises six (6) feet or more above the natural bed of a stream or watercourse as measured from the downstream toe of the embankment and which does or can impound fifty (50) acre-feet or more of water, is by definition a dam and is thereby subject to the provisions of the West Virginia Dam Control Act set forth in W. Va. Code §22-14 et seq.; and

5.4.c.6. Embankment type sediment control or water retention structures which impound water at an elevation of five feet (5') or more above the upstream toe of the structure and can have a storage volume of twenty (20) acre-feet or more; which impound water at an elevation of twenty feet (20') or more above the upstream toe of the structure; or which present a hazard to coal miners as determined by an MSHA District Manager; shall be designed, constructed, inspected, and abandoned in accordance with Federal regulations set forth in 30 CFR 77.216. All design plans, and specifications shall be made a part of the permit application. In addition to these requirements, the following minimum standards shall be met:

5.4.c.6.A. An appropriate combination of principal and emergency spillways shall be provided to pass safely the runoff resulting from a one hundred (100) year, twenty-four (24) hour precipitation event, or a larger event as specified by the Secretary;

5.4.c.6.B. The embankment shall be designed, constructed, and maintained with a static safety factor of at least 1.5 or a specified higher safety factor as required to ensure long-term stability and a seismic factor of safety of 1.2;

5.4.c.6.C. Appropriate barriers to control seepage shall be installed along the conduits that extend through the embankments; and

5.4.c.6.D. The detailed design plan shall include a stability analysis which includes but is not limited to strength parameters, pore pressures, and long-term seepage conditions. The design plan will also include a description of each engineering design assumption and calculation.

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.

5.4.d. Certification.

5.4.d.1. Prior to any surface mining activities in the component drainage area of a permit controlled by a sediment control structure, that specific structure shall be certified as to construction in accordance with the plans, designs, and specifications set forth in the preplan, or in accordance with as- built plans. If as-built plans are submitted, the certification shall describe how and to what extent the construction deviates from the proposed design, and shall explain how and certify that the structure will meet performance standards. Such certification shall be submitted on forms prescribed by the Secretary. Where sediment control or other water retention structures are constructed in sequence with the advance of the mining operation to allow for on-bench construction, such systems shall be constructed and certified in sections of one thousand (1,000) linear feet or less as measured from the active pit. This certification shall include a map showing the exact Location of the section being certified.

5.4.d.2. Design and construction certification of non-embankment type sediment control structures may be performed by a registered professional engineer or a professional surveyor.

5.4.d.3. Design and construction certification of embankment type sediment control structures may be performed only by a registered professional engineer or professional surveyor experienced in construction of embankments except all coal processing waste dams and embankments covered by subsection 22.4.c. shall be certified by a registered professional engineer.

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.

5.4.e. Inspections.

Inspection of impoundments, including sediment control or other water retention structures, shall be in accordance with the following:

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 professional 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); the Class B or C criteria for dams in Earth Dams and Reservoirs, TR-60 or W. Va. Code §22-14 et seq., and which are not constructed of coal processing waste or coal refuse. The professional engineer, professional surveyor, or specialist shall be experienced in the construction of impoundments and sediment control structures.

5.4.e.2. Inspections shall be made regularly but not less than quarterly during construction, upon completion of construction, and at least yearly until removal of the structure or release of the bond.

5.4.e.3. The qualified registered professional engineer or professional surveyor shall promptly, after each inspection, provide to the Secretary a certified report that the impoundment or sediment control structure has been constructed and maintained as designed and in accordance with the approved preplan. The report shall include discussion of any appearances of instability, structural weakness or other hazardous conditions, depth and elevation of any impounded waters, existing storage capacity, any existing or required monitoring procedures and instrumentation and any other aspects of the structure affecting stability.

5.4.e.4. A copy of the report shall be retained at or near the mine site.

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.

5.4.g. Maintenance. Prior to Phase 1 bond release, all sediment control structures shall be cleaned out so as to meet design storage capacity in all areas not revegetated and stabilized.

5.4.h. Abandonment Procedures. Abandonment and/or removal of sediment control or other water retention structures shall not occur until two (2) years after the last augmented seeding nor less than two (2) years before final bond release. Minimum requirements for abandoning sediment control or other water retention structures prior to full bond release are as follows:

5.4.h.1. Unless otherwise approved in the reclamation plan, dugout-type sediment control or other water retention structures, diversion ditches, and other non-impounding sediment control or other water retention structures shall be removed and the land upon which they are situated shall be regraded and revegetated in accordance with the reclamation plan. Sediment control or other water retention structures approved by the Secretary as permanent structures are exempt from these requirements.

5.4.h.2. Embankment type sediment dams, embankment type excavated sediment dams and crib and gabion dams, and all accumulated sediment behind the dam shall be removed from the natural drainway. The natural drainway shall be returned as nearly as practicable to its original pattern, profile, and dimensions and stabilized to control erosion and be in accordance with the reclamation plan. The reclamation plan should also take into consideration channel and bank stability and habitat enhancement.

5.4.h.3. All areas disturbed during abandonment of a sediment control or other water retention structures shall be seeded and mulched immediately to stabilize the area.

5.4.h.4. Waste material shall be spread over an area within the permit boundaries in accordance with the following specifications:

5.4.h.4.A. Provisions shall be made for the diversion or safe passage of surface water concentrating on the land side of the waste bank.

5.4.h.4.B. The waste shall be placed so as not to endanger the stability of the stream bank and shall not exceed three feet (3') in height above the natural ground surface, except by special design. Special designs shall be submitted with the drainage plan. The finished surface shall slope away from the edge of the stream or drainway insofar as feasible.

5.4.h.4.C. Surface of waste shall not be steeper than two (2) horizontal to one (1) vertical. If the waste is spread to the edge of the stream bank, the stream side slope of the waste shall be shaped to join the side slope of the stream bank.

5.5. Permanent Impoundments. Those sediment control or other water retention structures or impounding structures to be left in place after final bond release shall be considered permanent and, if authorized by the Secretary as part of the permit application or a revision to a permit, may be left in accordance with the following requirements; provided, that a structure which is subject to the requirements of either 30 CFR 77.216 or W. Va. Code §22-14 et seq., may not be retained as a permanent impoundment, but shall be reclaimed:

5.5.a. A request to leave the structure will be made on forms prescribed by the Secretary and submitted as a permit revision;

5.5.b. The request will contain a statement as to the present conditions of the structure;

5.5.c. The request will contain a statement signed by the landowner requesting the permanent structures be left for recreational or wildlife propagation purposes or for any beneficial uses to the landowner;

5.5.d. The size and configuration of such permanent structure will be adequate for its intended purposes;

5.5.e. The quality of water will be suitable on a permanent basis for its intended use and, after reclamation, will meet applicable State and Federal water quality standards, and discharges will meet applicable effluent limitations and will not degrade the quality of receiving water below applicable State and Federal water quality standards;

5.5.f. The water level will be sufficiently stable and be capable of supporting the intended use;

5.5.g. Final grading will provide for adequate safety and access for proposed water users;

5.5.h. The permanent structure will not result in the diminution of the quality and quantity of water utilized by adjacent or surrounding landowners for agricultural, industrial, recreational, or domestic use; and

5.5.i. The permanent structure will be suitable for the approved postmining land use.

5.6 Storm Water Runoff:

5.6.a. Each application for a permit shall contain a storm water runoff analysis. Provided, however, an exemption may be considered on a case by case basis for mining operations with permitted acreage less than 50 acres. Furthermore, haukoads, loadouts, and ventilation facilities are excluded from this requirement. The storm water runoff analysis shall include the following:

5.6.a.1 An analysis showing the changes in storm runoff caused by the proposed operations(s) using standard engineering and hydro logic practices and assumptions.

5.6.a.2. The analysis will evaluate pre-mining, worst case during mining, and post-mining (Phase III standards) conditions. The storm used for the analysis will be the largest required design storm for any sediment control or other water retention structure proposed in the application. The analysis must take into account all allowable operational clearing and grubbing activities. The applicant will establish evaluation points on a case-by case basis depending on site specific conditions including, but not limited to, type of operation and proximity of man-made structures.

5.6.a.3. The worst case during mining and post-mining evaluations must show no net increase in peak runoff compared to the pre-mining evaluation.

5.6.b. Each application for a permit shall contain a runoff-monitoring plan which shall include, but is not limited to, the installation and maintenance of rain gauges. The plan shall be specific to local conditions. All operations must record daily precipitation and report monitoring results on a monthly basis and any one (1) year, twenty-four (24) storm event or greater must be reported to the Secretary within forty-eight (48) and shall include the results of a permit wide drainage system inspection.

5.6.c. Each application for a permit shall contain a sediment retention plan to minimize downstream sediment deposition within the watershed resulting from precipitation events. Sediment retention plans may include, but are not limited to decant ponds, secondary control structures, increased frequency for cleaning out sediment control structures, or other methods approved by the Secretary.

W. Va. Code R. § 38-2-5