Rule2024-00530
West Virginia Regulatory Program
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
January 12, 2024
Effective
February 12, 2024
Issuing agencies
Interior DepartmentSurface Mining Reclamation and Enforcement Office
Abstract
We, the Office of Surface Mining Reclamation and Enforcement (OSMRE), are approving, with one deferral, an amendment to the West Virginia statutory program under the Surface Mining Control and Reclamation Act of 1977 (SMCRA or the Act). The amendment revises the West Virginia Surface Coal Mining and Reclamation Act (WVSCMRA) as contained in Senate Bill 687 of 2017. These revisions modify the WVSCMRA requirements related to the release of bonds and provisions related to the use of money from the Special Reclamation Water Trust Fund. We are deferring our decision on the removal of provisions pertaining to the long-range planning process for the selection and prioritization of sites to be reclaimed.
Full Text
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<title>Federal Register, Volume 89 Issue 9 (Friday, January 12, 2024)</title>
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[Federal Register Volume 89, Number 9 (Friday, January 12, 2024)]
[Rules and Regulations]
[Pages 2133-2139]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-00530]
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 948
[SATS No. WV-125-FOR; Docket ID: OSMRE-2017-0003 S1D1S SS08011000
SX064A000 2340S180110; S2D2S SS08011000 SX064A000 23XS501520]
West Virginia Regulatory Program
AGENCY: Office of Surface Mining Reclamation and Enforcement, Interior.
ACTION: Final rule; approval of amendment with deferral.
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SUMMARY: We, the Office of Surface Mining Reclamation and Enforcement
(OSMRE), are approving, with one deferral, an amendment to the West
Virginia statutory program under the Surface Mining Control and
Reclamation Act of 1977 (SMCRA or the Act). The amendment revises the
West Virginia Surface Coal Mining and Reclamation Act (WVSCMRA) as
contained in Senate Bill 687 of 2017. These revisions modify the
WVSCMRA requirements related to the release of bonds and provisions
related to the use of money from the Special Reclamation Water Trust
Fund. We are deferring our decision on the removal of provisions
pertaining to the long-range planning process for the selection and
prioritization of sites to be reclaimed.
DATE: This rule is effective February 12, 2024.
FOR FURTHER INFORMATION CONTACT: Mr. Michael Castle, Acting Field
Office Director, Charleston Field Office, Telephone: (859) 260-3900.
Email: <a href="/cdn-cgi/l/email-protection#4728342a6a242f21280728342a352269202831"><span class="__cf_email__" data-cfemail="dfb0acb2f2bcb7b9b09fb0acb2adbaf1b8b0a9">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
I. Background on the West Virginia Program
II. Submission of the Amendment
III. OSMRE's Findings
IV. Summary and Disposition of Comments
V. OSMRE's Decision
VI. Statutory and Executive Order Reviews
I. Background on the West Virginia Program
Subject to OSMRE's oversight, SMCRA section 503(a) permits a State
to assume primacy for the regulation of surface coal mining and
reclamation operations on non-Federal and non-Indian lands within its
borders by demonstrating that its program includes, among other things,
State laws and regulations that govern surface coal mining and
reclamation operations in accordance with the Act and consistent with
the Federal regulations. See 30 U.S.C. 1253(a)(1) and (7). On the basis
of these criteria, the Secretary of the Interior conditionally approved
the West Virginia program on January 21, 1981. You can find background
information on the West Virginia program, including the Secretary's
findings, the disposition of comments, and conditions of approval of
the West Virginia program in the January 21, 1981, Federal Register (46
FR 5915). You can also find later actions concerning the West Virginia
program and program amendments at 30 CFR 948.10, 948.12, 948.13,
948.15, and 948.16.
II. Submission of the Amendment
By letter dated May 3, 2017 (Administrative Record No. 1608), and
received by us on May 15, 2017, the West Virginia Department of
Environmental Protection (WVDEP) submitted an amendment to its program
under SMCRA, docketed as WV-125-FOR. The proposed amendment consists of
statutory revisions to WVSCMRA contained in Senate Bill 687 of 2017
(S.B. 687) (approved April 26, 2017). See 2017 W.Va. Acts ch. 86.
Through S.B. 687, West Virginia seeks to revise statutory
provisions related to the release of bonds and the use of
[[Page 2134]]
money from the Special Reclamation Water Trust Fund to assure a
reliable source of capital and operating expenses for the treatment of
discharges from bond-forfeited sites. West Virginia also seeks to
revise and reorganize the bond release requirements specific to when
the different phases of a bond can be released and under what
circumstances; it also preserves the requirement that no bond will be
released until all reclamation requirements are met.
We announced receipt of the proposed amendment in the April 8,
2019, Federal Register (84 FR 13853) (Administrative Record No. 1617).
In the same notice, we opened a public comment period and provided an
opportunity for a public hearing on these provisions. The public
comment period closed on May 8, 2019. We did not hold a public hearing
or meeting because one was not requested. Letters were sent to various
Federal agencies requesting comments (Administrative Record No. 1618),
but none were received. For clarification, the summary of the April 8,
2019, proposed rule notice also unintentionally mentions revisions to
pre-blasting and blasting requirements as being a part of this
amendment. West Virginia had submitted other amendments to its blasting
regulations that we had not yet addressed; therefore, in order to keep
all changes to the blasting regulations together, we consolidated them
into a separate amendment, which can be viewed at <a href="http://www.regulations.gov">www.regulations.gov</a>
by searching the Docket ID Number OSM-2016-0010-0002, or SATS No. WV-
123-FOR.
III. OSMRE's Findings
We are approving, with one deferral, the revisions proposed in WV-
125-FOR as described below. The following are findings concerning West
Virginia's amendment under SMCRA and the Federal regulations at 30 CFR
732.15 and 732.17. Any revisions that we do not specifically discuss
below concerning non-substantive wording or editorial changes can be
found in the full text of the program amendment available at
<a href="http://www.regulations.gov">www.regulations.gov</a>, searchable by the Docket ID Number referenced at
the top of this notice.
The following describes the substantive statutory revisions that
WVDEP submitted to OSMRE for approval on May 3, 2017 (Administrative
Record No. WV-1608).
1. W. Va. Code 22-3-11(g)(1)--Bonds; amount and method of bonding;
bonding requirements; special reclamation tax and funds; prohibited
acts; period of bond liability.
West Virginia seeks to revise W. Va. Code 22-3-11(g)(1) to specify
that moneys in the Special Reclamation Water Trust Fund are to be used
to assure a reliable source of capital and operating expenses for the
treatment of water discharges from forfeited sites where the WVDEP
Secretary has obtained or applied for a National Pollutant Discharge
Elimination System (NPDES) permit as of the effective date of WVSCMRA.
The existing provision states only that the funds assure ``a reliable
source of capital to reclaim and restore water treatment systems on
forfeited sites.''
OSMRE's Findings: The West Virginia alternative bonding system was
conditionally approved by the Secretary on January 21, 1981 (46 FR
5915), and the condition of the approval was removed on March 1, 1983
(48 FR 8448). This approval was granted under section 509(c) of SMCRA,
30 U.S.C. 1259(c), which allows for the approval of an alternative
bonding system that will achieve the objectives and purposes of section
509. In drafting section 509(c), Congress was not specific in
prescribing how alternative bonding programs should be financed. The
relevant analysis is whether the proposed alternative bonding system
achieves the objectives and purposes of a conventional bonding system
as expressed in section 509 of SMCRA and as implemented by 30 CFR
800.11(e).
In the May 7, 2020, Federal Register (85 FR 27139), we approved on
a permanent basis revisions to W. Va. Code 22-3-11(g) made by West
Virginia in 2008 that added language to provide that the Special
Reclamation Water Trust Fund was created within the State Treasury,
into and from which moneys would be paid for the purpose of assuring a
reliable source of capital to reclaim and restore water treatment
systems on forfeited sites. Previously, the expenditure for water
treatment systems was limited to fees collected under the Special
Reclamation Fund. The revisions West Virginia proposes through S.B. 687
clarify that in addition to assuring sufficient funds to cover capital
costs, which generally relate to the construction of water treatment
systems, the funds must also be sufficient to cover those systems'
operating expenses.
Both capital and operating costs must be accounted for to ensure
compliance with the requirement in 30 CFR 800.11(e)(1) that the State
have sufficient money to complete reclamation for any areas that may be
in default at any time. In our 2020 approval, we made special mention
of other language in this provision, which West Virginia now proposes
to delete, that both funds are ``for the purpose of designing,
constructing, and maintaining water treatment systems.'' See 85 FR at
27152. The proposed text stating that the Special Reclamation Water
Trust Fund moneys are to be used for both capital and operating
expenses only calls special attention to the distinction and removes
any ambiguity from West Virginia's requirements in light of the
proposed deletion of ``for the purpose of designing, constructing, and
maintaining water treatment systems,'' which we address below in the
provision West Virginia has renumbered as paragraph (g)(2). S.B. 687
also clarifies that the money from the Special Reclamation Water Trust
Fund is to be used where the Secretary has received or applied for an
NPDES permit. As indicated in proposed paragraph (g)(2), addressed
below, both funds are ``for the reclamation and rehabilitation'' of
eligible lands, which we understand to mean that to the extent that any
reclamation obligation is not expensed under the Special Reclamation
Water Trust Fund, it will be expensed under the Special Reclamation
Fund. Neither of these revisions materially change West Virginia's
program as we approved it on May 7, 2020, and it continues to be no
less stringent than the Federal alternative bonding requirement at
section 509(c) of SMCRA, 30 U.S.C. 1259(c), and no less effective than
the Federal alternative bonding requirements at 30 CFR 800.11(e).
2. W. Va. Code 22-3-11(g)(2)--Bonds; amount and method of bonding;
bonding requirements; special reclamation tax and funds; prohibited
acts; period of bond liability.
In 1995, West Virginia submitted revisions to W. Va. Code 22-3-
11(g) that established the development of a long-range planning process
for selection and prioritization of sites to be reclaimed to avoid
inordinate short-term obligations of the fund's assets of such
magnitude that the solvency of the fund was jeopardized. Relying on
West Virginia's implementing regulations at 38 CSR 2-12.4(c), which
provide that reclamation operations must be initiated within 180 days
following final forfeiture notice, we approved that revision to the
extent that it provided only for the ranking of sites for reclamation
without compromising the requirement that all sites for which bonds
were posted be properly and timely reclaimed. See 60 FR 51900 (Oct. 4,
1995). In 2008, West Virginia further revised this section to account
for the Special Reclamation Water Trust Fund and specified that ``[t]he
secretary may use both funds for the purpose of designing, constructing
[[Page 2135]]
and maintaining water treatment systems when they are required for a
complete reclamation of the affected lands described in this
subsection.'' West Virginia now seeks to delete these provisions, as
well as renumber the remaining paragraph, formerly part of (g)(1), as
(g)(2).
OSMRE's Findings: We addressed West Virginia's long-range planning
process for selection and prioritization of sites to be reclaimed in
previous decisions, specifically in the Federal Register documents of
October 4, 1995 (60 FR 51900) and May 29, 2002 (67 FR 37610). In both
of these instances, we explained in detail that for West Virginia's
Special Reclamation Fund and Special Reclamation Water Trust Fund to
remain solvent requires an inventory of sites requiring reclamation.
Without this inventory, it is virtually impossible for the Special
Reclamation Advisory Council to accurately assess the liabilities that
would be included in the alternative bonding system. We further
emphasized this fact in our letter to the WVDEP dated August 23, 2021
(Administrative Record No. 1659). Again, we raised concerns regarding
WVDEP having not taken the necessary steps to ensure the complete and
accurate listing of all outstanding reclamation obligations (including
water treatment) on active permits. We informed WVDEP that the State
was required to submit either a proposed written amendment or a
description of an amendment to be proposed that meets the requirements
of 30 CFR 732.17(f)(1) to establish a better inventory of existing
obligations.
On October 18, 2021, WVDEP responded to our letter with a proposal
for an amendment (Administrative Record No. 1664) to address this
issue, which then proceeded through the State's statute and rulemaking
process. On March 29, 2022, WVDEP submitted this proposed revision to
the West Virginia program (Administrative Record No. 1666) to develop
and maintain a database to track reclamation liabilities in the WVDEP
Special Reclamation Program. We are deferring our decision on Section
22-3-11(g)(2) until we have reviewed the 2022 proposed amendment
(docketed as WV-128-FOR). Our deferral does not impact West Virginia's
efforts to renumber these provisions from subsection (g) to paragraph
(g)(2), and the renumbering has no effect on the West Virginia program.
Therefore, we approve the renumbering.
3. W. Va. Code 22-3-23(c)--Release of bond or deposits;
application; notice; duties of Secretary; public hearings; final maps
on grade release.
West Virginia seeks to amend W. Va. Code 22-3-23(c) to more closely
reflect the language used in section 519(c) of SMCRA (Requirements for
release), 30 U.S.C. 1269(c), first by eliminating the distinction
previously created at existing subsections (c)(1) and (c)(2) between
operations with and without an approved variance from the requirement
that areas be reclaimed to approximate original contour (AOC). This
proposed change replaces two sets of phased bond release requirements
(currently at (c)(1)(A)-(C) and (c)(2)(A)-(C)) with one set of bond
release requirements under subsection (c), paragraphs (1) through (3).
The State also seeks to eliminate the proviso repeated under both sets
of requirements that a minimum bond of ten thousand dollars shall be
retained following Phase I and II bond releases, and a proviso that
allowed total release of bonds following backfilling where provisions
for sound future maintenance was assured by the local or regional
economic development or planning agency and certain other requirements
were met. West Virginia originally proposed the provision about sound
future maintenance, as well as bond release provisions specific to
operations with variances from AOC requirements, in relation to a
Consent Decree agreed to by the plaintiffs and WVDEP in the matter of
Bragg v. Robertson, Civil Action No. 2:98-0636 (S.D.W.Va.) (approved by
the U.S. District Court for the Southern District of West Virginia on
February 17, 2000). The remaining changes relate to Phase II bond
release at existing subparagraphs (c)(1)(B) and (c)(2)(B), which will
become paragraph (c)(2).
West Virginia's proposed revisions eliminate a requirement that
Phase II bond release (i.e., bond release following successful
revegetation) may occur only at a minimum of two years from the last
augmented seeding, fertilizing, irrigation, or other work, and
eliminate the flat percentage of bond returned at Phase II bond release
(ten percent for those operations with an approved variance from AOC,
twenty-five percent for all other operations). In place of the flat
percentages, paragraph (2) will provide that the bond or deposit, in
whole or in part, may be released after revegetation has been
established on the regraded mined lands in accordance with the approved
reclamation plan. When determining the amount of bond to be released
after successful revegetation has been established, the Secretary will
retain that amount of bond for the revegetated area that would be
sufficient for a third party to cover the cost of reestablishing
revegetation and for the period specified for operator responsibility
at W. Va. Code 22-3-13(b). This section establishes that the operator
ensures that all reclamation efforts proceed in an environmentally
sound manner and as contemporaneously as practicable and complies with
the minimum environmental performance standards for surface mining
operations.
Proposed paragraph (c)(3) redrafts provisos from subparagraphs
(c)(1)(C) and (c)(2)(C) that provide that when the operator has
successfully completed all surface coal mining and reclamation
activities, the remaining portion of the bond may be released, but not
before the expiration of the period specified for operator
responsibility at W. Va. Code 22-3-13(b). These provisions also provide
that no bond will be fully released until all reclamation requirements
are complied with, and that ``the release may be made where the quality
of untreated post-mining water discharged is better than or equal to
the premining water quality discharged from the mining site where
expressly authorized,'' which currently only relates to West Virginia's
remining regulations at CSR 38-2-23. All of this language will now
appear at proposed paragraph (c)(3).
OSMRE's Findings: As we explained in our August 18, 2000, Federal
Register notice (65 FR 50409, 50411), West Virginia's bond release
requirements particular to operations with approved AOC variances apply
to mountaintop removal and steep slope mining operations. We noted at
that time that the different percentages of bonds released did not
exceed those provided under section 519(c) of SMCRA and the Federal
regulations at 30 CFR 800.40(c). Further, we explained that there was
no counterpart in SMCRA or its implementing regulations for the
requirement that final bond cannot be released on lands subject to an
AOC variance unless, if applicable, any necessary postmining
infrastructure is established and any necessary financing is completed.
Therefore, the elimination of these unique requirements from WVSCMRA is
approved.
West Virginia proposed to delete a proviso stating that after Phase
I and II bond release, operations must still maintain a minimum bond of
$10,000. We find that this requirement is redundant of W. Va. Code 22-
3-11(a), which states: ``Provided, that the minimum amount of bond
furnished for any type of reclamation bonding shall be ten thousand
dollars.'' The elimination of this proviso from W. Va. Code 22-3-23
does not relieve operations of the requirement of W. Va.
[[Page 2136]]
Code 22-3-11(a), which itself is the same as the requirement under
section 509(a) of SMCRA, 30 U.S.C. 1259(a). Therefore, we approve this
deletion to the extent that it removes the requirement from West
Virginia's bond release requirements, but we note that its deletion has
no effect on West Virginia's general requirement that no reclamation
bonds may be less than ten thousand dollars.
In the November 12, 1999, Federal Register (64 FR 61507, 61512), we
deferred a decision on the proposed amendment that would allow certain
operations to be granted full bond release where provisions for sound
future maintenance were assured by the local or regional economic
development or planning agency and certain other requirements were met.
Our deferral pended West Virginia's submission of regulations that West
Virginia believed would satisfy our concerns that the proviso created
an exemption from bond release requirements that conflicted with SMCRA.
At that time, we explained that until we readdressed our deferral, West
Virginia was prohibited from implementing this provision. Because this
provision never became effective, West Virginia's current proposed
deletion of the proviso has no effect on West Virginia's program.
Therefore, we are approving the deletion.
West Virginia also proposed to revise the requirements for Phase II
bond release by eliminating the specified amount (ten and twenty-five
percent) that is to be returned upon a Phase II bond release and
eliminating the minimum two-year waiting period after the last
augmented seeding before revegetation standards may be met. Neither
SMCRA nor the Federal regulations specify an amount of bond to be
released upon Phase II or proscribe a time period for the determination
that revegetation has been established for the purpose of Phase II bond
release. Rather, Federal law places within the discretion of the
regulatory authority the need to determine and retain adequate bond to
complete all required reclamation and to determine that successful
revegetation has been established. See 30 U.S.C. 1269(c)(2) and 30 CFR
800.40(c)(2). When we approved West Virginia's inspection frequency of
inactive mines, we explained that West Virginia's two-year requirement
from last augmented seeding was more stringent than Federal
requirements. See 55 FR 21304, 21333 (May 23, 1990). The Federal
requirements at 30 CFR 800.40(c) ``require only that revegetation be
successfully established, with the definition of `established' left to
the discretion of the regulatory authority, provided it includes
adequacy to control erosion and compliance with the species composition
requirements of the reclamation plan.'' When a regulatory authority
proposes to remove a provision that is more stringent than the Federal
requirements, we must still ensure the remaining provisions are not
rendered less stringent than those requirements. The two-year
requirement is not critical to a mining operator's achievement of the
relevant vegetative performance standard or to WVDEP's evaluation of
whether the standard is met. The proposed amendment retains West
Virginia's commitment to verify that applicable standards for
vegetative success have been met before the relevant portion of the
bond is released and, therefore, is no less stringent than sections 505
and 519 of SMCRA, 30 U.S.C. 1265 and 1269, or less effective than the
Federal regulations at 30 CFR 800.40 and 816.116. Therefore, we are
approving the amendment.
West Virginia's proposed revision would eliminate the flat
percentage Phase II bond release in favor of retaining the amount of
bond for the revegetated area that would be sufficient for a third
party to cover the cost of reestablishing revegetation and for the
period specified for operator responsibility. This proposed revision
directly reflects the language of 30 CFR 800.40(c)(2). In 1983, we
removed from paragraph (c)(2) a corresponding twenty-five percent Phase
II maximum bond release requirement in favor of more flexibility for
the regulatory authority to retain the amount of bond necessary. See 48
FR 32932, 32953 (July 19, 1983). At that time, we acknowledged that
establishment of a maximum percentage as a Federal requirement was
arbitrary and not consistent with SMCRA. Id. Given that West Virginia's
revision brings its bond release requirement back in line with the
Federal regulation, it is no less effective than Federal requirements,
and we are approving it.
Regarding proposed paragraph (c)(3), this paragraph simply redrafts
provisions related to the conditions for final bond release from
existing subparagraphs (c)(1)(C) and (c)(2)(C), which were revisions
initially required by us, see 50 FR 28316, 28319 (July 11, 1985), and
for which we later approved subsequent revisions by West Virginia, see
68 FR 40157, 40158-59 (July 7, 2003). Because the proposed redrafting
does not change any of these provisions from when we last approved
them, we are approving the redrafted language.
4. W. Va. Code 22-3-23(i)--Release of bond or deposits;
application; notice; duties of Secretary; public hearings; final maps
on grade release.
WVDEP proposed to add subdivision (i) to its bonding requirements,
which would authorize the Secretary to propose rules for legislative
approval during the 2018 regular session of the Legislature that
implemented the statutory changes discussed above while adopting, where
possible, corresponding Federal regulatory standards. In addition, the
Secretary was to specifically consider the adoption of corresponding
Federal standards codified at 30 CFR part 700 et seq.
OSMRE's findings: OSMRE is approving the addition of subdivision
(i) to WVDEP's bonding requirements, which authorizes the Secretary to
propose rules for legislative approval. In addition, the WVDEP
Secretary was to specifically consider the adoption of corresponding
Federal standards codified at 30 CFR part 700 et seq. This approval
enabled WVDEP the discretion to amend its bonding regulations as needed
so that West Virginia's program may continue to satisfy Federal law.
West Virginia made its regulatory revisions through a Committee
Substitute for Senate Bill 163 of 2018, see 2018 W.Va. Acts ch. 141,
which West Virginia submitted to us on May 2, 2018 (Administrative
Record No. WV-1613A, in part), docketed as WV-126-FOR. Subsection (i)
itself did not change any substantive provisions of West Virginia's
approved program, but instead only directed WVDEP to fashion revisions
to WVDEP's regulations that WVDEP determined were necessary to comply
with Federal law. Therefore, subsection (i) is neither inconsistent
with SMCRA nor less effective than SMCRA's implementing regulations. We
are currently reviewing those regulatory revisions made under the
authority of subsection (i) as part of a separate action docketed at
WV-126-FOR.
IV. Summary and Disposition of Comments
Public Comments
We asked for public comments on the amendment and received a letter
dated May 8, 2019, from the West Virginia Coal Association (WVCA)
(Administrative Record No. 1627). WVCA stated in its letter that S.B.
687 revised both bonding and explosives and blasting provisions of the
WVSCMRA. WVCA stated that it was unclear why WV-125-FOR only covered
the bonding portion of the bill. The blasting provisions referenced in
our public notice of WV-125-FOR on April 8, 2019, were moved into WV-
123-FOR with House Bill 4726
[[Page 2137]]
(approved April 1, 2016), see 2016 W.Va. Acts ch.106, and Senate Bill
163 (approved May 2, 2018), see 2018 W.Va. Acts ch. 141, which also
amended West Virginia's blasting laws.
Federal Agency Comments
On April 10, 2019, under 30 CFR 732.17(h)(11)(i) and section 503(b)
of SMCRA, we requested comments on the amendment from various Federal
agencies with an actual or potential interest in the West Virginia
program (Administrative Record No. 1618). On April 30, 2019, we
received a letter from the USDA Forest Service, Monongahela National
Forest. The USDA Forest Service did not have any comments of the
proposed changes to the revisions to the West Virginia Code
(Administrative Record No. 1626).
Environmental Protection Agency (EPA) Concurrence and Comments
Under 30 CFR 732.17(h)(11)(ii), we are required to get a written
concurrence from EPA for those provisions of the program amendment that
relate to air or water quality standards issued under the authority of
the Clean Water Act (33 U.S.C. 1251 et seq.) or the Clean Air Act (42
U.S.C. 7401 et seq.). On April 10, 2019, under 30 CFR 732.17(h)(11)(i),
we requested comments and concurrence from the EPA on the amendment
(Administrative Record No. 1618). We received concurrence but no
comments from the EPA on August 14, 2019, (Administrative Record No.
1629).
State Historic Preservation Office (SHPO) and the Advisory Council on
Historic Preservation (ACHP)
Under 30 CFR 732.17(h)(4), we are required to request comments from
the SHPO and ACHP on amendments that may have an effect on historic
properties. On April 10, 2019, we requested comments on West Virginia's
amendment (Administrative Record No. 1618). We did not receive any
comments.
V. OSMRE's Decision
We are approving this amendment, with one deferral, to the West
Virginia statutory program under SMCRA. The amendment revises WVSCMRA
as contained in Senate Bill 687 of 2017. These revisions modify the
WVSCMRA requirements related to the release of bonds and provisions
related to the use of money from the Special Reclamation Water Trust
Fund.
Based on the above findings, we are approving the amendment WVDEP
sent to us on May 3, 2017 (Administrative Record No. 1608), with one
exception--we are deferring our decision on the removal of provisions
related to the long-range planning process and the prioritization of
sites. We will address those proposed revisions along with West
Virginia's submission docketed at WV-128-FOR related to the
establishment of a database to track existing reclamation liabilities.
To implement this decision, we are amending the Federal regulations
at 30 CFR part 948 that codify decisions concerning the West Virginia
program. In accordance with the Administrative Procedure Act, this rule
will take effect 30 days after the date of publication.
VI. Statutory and Executive Order Reviews
Executive Order 12630--Governmental Actions and Interference With
Constitutionally Protected Property Rights
This rule would not effect a taking of private property or
otherwise have taking implications that would result in public property
being taken for government use without just compensation under the law.
Therefore, a takings implication assessment is not required. This
determination is based on an analysis of the corresponding Federal
regulations.
Executive Orders 12866--Regulatory Planning and Review, 13563--
Improving Regulation and Regulatory Review, and 14094--Modernizing
Regulatory Review
Executive Order 12866, as amended by Executive Order 14094,
provides that the Office of Information and Regulatory Affairs in the
Office of Management and Budget (OMB) will review all significant
rules. Pursuant to OMB guidance, dated October 12, 1993, the approval
of State program amendments is exempted from OMB review under Executive
Order 12866, as amended by Executive Order 14094. Executive Order
13563, which reaffirms and supplements Executive Order 12866, retains
this exemption.
Executive Order 12988--Civil Justice Reform
The Department of the Interior has reviewed this rule as required
by Section 3 of Executive Order 12988. The Department determined that
this Federal Register document meets the criteria of Section 3 of
Executive Order 12988, which is intended to ensure that the agency
review its legislation and proposed regulations to eliminate drafting
errors and ambiguity; that the agency write its legislation and
regulations to minimize litigation; and that the agency's legislation
and regulations provide a clear legal standard for affected conduct
rather than a general standard, and promote simplification and burden
reduction. Because Section 3 focuses on the quality of Federal
legislation and regulations, the Department limited its review under
this Executive Order to the quality of this Federal Register document
and to changes to the Federal regulations. The review under this
Executive Order did not extend to the language of the State regulatory
program or to the program amendment that West Virginia drafted.
Executive Order 13132--Federalism
This rule has potential Federalism implications as defined under
Section 1(a) of Executive Order 13132. Executive Order 13132 directs
agencies to ``grant the States the maximum administrative discretion
possible'' with respect to Federal statutes and regulations
administered by the States. West Virginia, through its approved
regulatory program, implements and administers SMCRA and its
implementing regulations at the State level. This rule approves, in
part, an amendment to the West Virginia program submitted and drafted
by the State and defers decision on one element of the amendment only
to the extent necessary to evaluate it in concert with a related
amendment recently submitted by the State. Therefore, this rule is
consistent with the direction to provide maximum administrative
discretion to States.
Executive Order 13175--Consultation and Coordination With Indian Tribal
Governments
The Department of the Interior strives to strengthen its
government-to-government relationship with Tribes through a commitment
to consultation with Tribes and recognition of their right to self-
governance and Tribal sovereignty. We have evaluated this rule under
the Department's consultation policy and under the criteria in
Executive Order 13175 and have determined that it has no substantial
direct effects on the distribution of power and responsibilities
between the Federal government and Tribes. The basis for this
determination is that our decision on the West Virginia program does
not include Indian lands, as defined by SMCRA, or regulation of
activities on Indian lands. Indian lands are regulated independently
under the applicable approved Federal program. The Department's
consultation policy also acknowledges that our rules may have Tribal
implications where the State proposing the amendment encompasses
ancestral lands in areas with mineable coal. We are currently working
to
[[Page 2138]]
identify and engage appropriate Tribal stakeholders to devise a
constructive approach for consulting on such amendments.
Executive Order 13211--Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
Executive Order 13211 requires agencies to prepare a Statement of
Energy Effects for a rulemaking that is (1) considered significant
under Executive Order 12866, and (2) likely to have a significant
adverse effect on the supply, distribution, or use of energy. Because
this rule is exempt from review under Executive Order 12866 and is not
a significant energy action under the definition in Executive Order
13211, a Statement of Energy Effects is not required.
Executive Order 13045--Protection of Children From Environmental Health
Risks and Safety Risks
This rule is not subject to Executive Order 13045 because this is
not an economically significant regulatory action as defined by
Executive Order 12866; and this action does not address environmental
health or safety risks disproportionately affecting children.
National Environmental Policy Act
Consistent with sections 501(a) and 702(d) of SMCRA (30 U.S.C.
1251(a) and 1292(d), respectively) and the U.S. Department of the
Interior Departmental Manual, part 516, section 13.5(A), State program
amendments are not major Federal actions within the meaning of section
102(2)(C) of the National Environmental Policy Act (42 U.S.C.
4332(2)(C)).
National Technology Transfer and Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act (15 U.S.C. 3701 et seq.) directs OSMRE to use voluntary consensus
standards in its regulatory activities unless to do so would be
inconsistent with applicable law or otherwise impractical. (OMB
Circular A-119 at p. 14). This action is not subject to the
requirements of section 12(d) of the NTTAA because application of those
requirements would be inconsistent with SMCRA.
Paperwork Reduction Act
This rule does not include requests and requirements of an
individual, partnership, or corporation to obtain information and
report it to a Federal agency. As this rule does not contain
information collection requirements, a submission to the Office of
Management and Budget under the Paperwork Reduction Act (44 U.S.C. 3501
et seq.) is not required.
Regulatory Flexibility Act
This rule will not have a significant economic impact on a
substantial number of small entities under the Regulatory Flexibility
Act (5 U.S.C. 601 et seq.). The State submittal, which is the subject
of this rule, is based upon corresponding Federal regulations for which
an economic analysis was prepared and certification made that such
regulations would not have a significant economic effect upon a
substantial number of small entities. In making the determination as to
whether this rule would have a significant economic impact, the
Department relied upon the data and assumptions for the corresponding
Federal regulations.
Small Business Regulatory Enforcement Fairness Act
This rule is not a major rule under 5 U.S.C. 804(2), the Small
Business Regulatory Enforcement Fairness Act. This rule: (a) does not
have an annual effect on the economy of $100 million; (b) will not
cause a major increase in costs or prices for consumers, individual
industries, Federal, State, or local government agencies, or geographic
regions; and (c) does not have significant adverse effects on
competition, employment, investment, productivity, innovation, or the
ability of U.S.-based enterprises to compete with foreign-based
enterprises. This determination is based on an analysis of the
corresponding Federal regulations, which were determined not to
constitute a major rule.
Unfunded Mandates Reform Act
This rule does not impose an unfunded mandate on State, local, or
Tribal governments or the private sector of more than $100 million per
year. The rule does not have a significant or unique effect on State,
local, or Tribal governments or the private sector. This determination
is based on an analysis of the corresponding Federal regulations, which
were determined not to impose an unfunded mandate. Therefore, a
statement containing the information required by the Unfunded Mandates
Reform Act (2 U.S.C. 1531 et seq.) is not required.
List of Subjects in 30 CFR Part 948
Intergovernmental relations, Surface mining, Underground mining.
Thomas D. Shope,
Regional Director, North Atlantic--Appalachian Region.
For the reasons set out in the preamble, 30 CFR part 948 is amended
as follows:
PART 948--WEST VIRGINIA
0
1. The authority citation for part 948 continues to read as follows:
Authority: 30 U.S.C. 1201 et seq.
0
2. Amend Sec. 948.12 by adding paragraph (k) to read as follows:
Sec. 948.12 State statutory, regulatory, and proposed program
amendment provisions not approved.
* * * * *
(k) We are not approving the following portions of provisions of
the proposed program amendment that West Virginia submitted on May 15,
2017:
(1) We are deferring our decision on the deletion of provisions
from W. Va. Code 22-3-11(g)(2) regarding the development of a long-
range planning process for the selection and prioritization of sites to
be reclaimed. We defer our decision until we make a determination on
West Virginia's related amendment docketed at WV-128-FOR, which relates
to the complete and accurate listing of all outstanding reclamation
obligations (including water treatment) on active permits in the State.
(2) [Reserved]
0
3. In Sec. 948.15 amend the table by adding an entry in chronological
order by ``Date of publication of final rule'' to read as follows:
Sec. 948.15 Approval of West Virginia regulatory program amendments.
* * * * *
----------------------------------------------------------------------------------------------------------------
Date of final
Original amendment submission date publication of Citation/description of approved provisions
final rule
----------------------------------------------------------------------------------------------------------------
* * * * * * *
May 3, 2017................................... 1/12/2024 W.Va. Code 22-3-11(g)(1), (g)(2) (partial); 22-3-
23(c) and (i).
----------------------------------------------------------------------------------------------------------------
[[Page 2139]]
[FR Doc. 2024-00530 Filed 1-11-24; 8:45 am]
BILLING CODE 4310-05-P
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