Rule2024-17334
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
August 8, 2024
Effective
September 9, 2024
Issuing agencies
Interior DepartmentSurface Mining Reclamation and Enforcement Office
Abstract
We, the Office of Surface Mining Reclamation and Enforcement (OSMRE), are approving an amendment to the West Virginia regulatory program (the West Virginia program) under the Surface Mining Control and Reclamation Act of 1977 (SMCRA or the Act). This amendment revises West Virginia's regulatory program provisions related to entities authorized to issue surety bonds and the repair and compensation of damage resulting from subsidence.
Full Text
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<title>Federal Register, Volume 89 Issue 153 (Thursday, August 8, 2024)</title>
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[Federal Register Volume 89, Number 153 (Thursday, August 8, 2024)]
[Rules and Regulations]
[Pages 64801-64805]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-17334]
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 948
[SATS No. WV-127-FOR; Docket No. OSM-2020-0003; S1D1S SS08011000
SX064A000 201S180110; S2D2S SS08011000 SX064A000 20XS501520]
West Virginia Regulatory Program
AGENCY: Office of Surface Mining Reclamation and Enforcement, Interior.
ACTION: Final rule.
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SUMMARY: We, the Office of Surface Mining Reclamation and Enforcement
(OSMRE), are approving an amendment to the West Virginia regulatory
program (the West Virginia program) under the Surface Mining Control
and Reclamation Act of 1977 (SMCRA or the Act). This amendment revises
West Virginia's regulatory program provisions related to entities
authorized to issue surety bonds and the repair and compensation of
damage resulting from subsidence.
DATES: Effective September 9, 2024.
FOR FURTHER INFORMATION CONTACT: Mr. Michael Castle, Acting Director,
Charleston Field Office Telephone: (304) 347-7158. Email: <a href="/cdn-cgi/l/email-protection#0768746a2a646f61684768746a756229606871"><span class="__cf_email__" data-cfemail="e08f938dcd8388868fa08f938d9285ce878f96">[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
Section 503(a) of the Act permits a State to assume primacy for the
regulation of surface coal mining and reclamation operations on non-
Federal and non-Indian lands within its borders by demonstrating that
its approved State 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 additional background
[[Page 64802]]
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 5, 2020 (Administrative Record No. 1640), West
Virginia sent us an amendment to its program under SMCRA (30 U.S.C.
1201 et seq.), docketed as WV-127-FOR. The amendment consists of
revisions made by West Virginia House Bill 4217 (HB 4217), which was
signed by the Governor on March 25, 2020. HB 4217 seeks to modify
language in West Virginia's regulations relating to companies that
execute surety bonds and modify language relating to the correction of
material damage from subsidence to a landowner's structures or
facilities.
We announced receipt of the proposed amendment in the December 16,
2020, Federal Register (85 FR 81436). In the same document, we opened
the public comment period and provided an opportunity for a public
hearing or meeting on the adequacy of the amendment. Due to the COVID-
19 restrictions, a virtual public hearing was held on January 14, 2021.
The public comment period ended on January 15, 2021.
III. OSMRE's Findings
The following are the findings we made concerning the amendment
under SMCRA and the Federal regulations at 30 CFR 732.15 and 732.17. We
are approving the amendment as described below. The full text of the
program amendment is available for review at <a href="https://www.regulations.gov">https://www.regulations.gov</a>.
A. Surety Bonds--CSR 38-2-11.3.a.3
West Virginia seeks to revise CSR 38-2-11.3.a.3, which requires any
company that executes surety bonds in the State to either: (i) be
included on the United States Department of the Treasury's (Treasury
Department) listing of approved sureties; or (ii) to submit proof to
the West Virginia Department of Environmental Protection (WVDEP) that
it holds a valid license issued by the West Virginia Insurance
Commissioner and meets certain reporting obligations. The existing
provision further requires any company not included on the Treasury
Department's listing of approved sureties to diligently pursue
application for such listing, submit proof of its efforts, and become
listed within 4 years. The revision would specify that only those
companies electing to qualify under the first part must diligently
pursue application for listing with the Treasury Department if they do
not currently possess that certification. In other words, companies
that elect to submit proof of a valid license from the West Virginia
Insurance Commissioner and meet certain reporting obligations would no
longer be required to diligently pursue application for listing or be
listed with the Treasury Department.
OSMRE Finding: West Virginia's existing requirement has no
counterpart under SMCRA or the Federal implementing regulations.
Section 509(b) of SMCRA, 30 U.S.C. 1259(b), requires that a coal mining
operator execute a surety bond with a corporate surety licensed to do
business in the State where the operation is located. See also 30 CFR
800.20(a). West Virginia first began requiring surety companies to hold
a current certificate of authority from the Treasury Department in
2001. See 68 FR 67035, 67038 (Dec. 1, 2003). WVDEP stated at the time
that the requirement ``was adopted to address concerns about the
financial solvency of sureties providing reclamation bonds in West
Virginia. The WVDEP did not have the necessary resources or expertise
to regularly and timely monitor the financial condition of sureties
doing business in West Virginia.'' 70 FR 77321, 77321-22 (Dec. 30,
2005). West Virginia then modified the requirement in 2005 to allow
surety companies to diligently pursue a certificate from the Treasury
Department, thereby removing a barrier to sureties that were in good
financial condition but did not yet have the Treasury Department
certificate, from providing reclamation bonds in West Virginia. West
Virginia filed an emergency rule with the West Virginia Secretary of
State on September 21, 2005, which the Secretary of State approved on
an emergency basis on October 11, 2005. WVDEP also filed a legislative
rule containing the same language with the Secretary of State on
September 21, 2005 (Administrative Record No. WV-1442). WVDEP provided
OSMRE with a copy of that proposed rule for an informal review, and we
recommended revisions. West Virginia adopted our suggested revisions,
and we approved the amendment on December 30, 2005 (70 FR 77321).
Since 2005, WVDEP has learned that under W.Va. Code sec. 33-4-14,
corporate sureties must annually submit to the West Virginia Insurance
Commissioner a true quarterly statement of their financial condition,
transactions, and affairs as of March 31, June 30, and September 30 in
order to do business in West Virginia. As a consequence of the current
amendment, WVDEP will be relying on the expertise and review of the
West Virginia Insurance Commission, because it is responsible for the
licensing, financial monitoring, and financial examination of the
companies admitted to do business in West Virginia. As amended, we find
the revision to be no less effective than the Federal regulation at 30
CFR 800.20(a), which states that a surety bond shall be executed by the
operator and a corporate surety licensed to do business in the State
where the operation is located, and no less stringent than section
509(b) of SMCRA. Therefore, we approve this amendment.
B. Owner Compensation--CSR 38-2-16.2.c.2
West Virginia seeks to revise CSR 38-2-16.2.c.2 relating to the
correction of material damage to any structures or facilities resulting
from subsidence. The existing regulation requires operators to either
repair the damage or compensate the owner for the full amount of
diminution in value resulting from the subsidence. West Virginia
proposes to revise this provision to state explicitly that the choice
of remedy is the owners' and to replace the option of repair with an
option to be compensated in the amount of the repair, subject to the
limitation that the compensation not exceed one hundred and twenty
percent (120%) of the pre-mining value of the structure or facility.
The proposal also inserts new language clarifying that this section
neither creates additional property rights nor can it be construed as
vesting in WVDEP's secretary the jurisdiction to adjudicate property
rights disputes.
OSMRE Finding: Currently, the language of West Virginia's
requirement at CSR 38-2-16.2.c.2 is substantively identical to section
720(a)(1) of SMCRA, 30 U.S.C. 1309a(a)(1), and 30 CFR 817.121(c)(2).
Section 720(a)(1) of SMCRA states that underground coal mining
operations must promptly repair, or compensate for, material damage
resulting from subsidence caused to any occupied residential dwelling
and related structures and any noncommercial buildings. Section
720(a)(1) further elaborates that repair includes rehabilitation,
restoration, or replacement; that compensation must be in the full
amount of the diminution in value resulting from the subsidence; and
that compensation may be accomplished by the purchase, prior to
[[Page 64803]]
mining, of a noncancellable premium-prepaid insurance policy.
OSMRE revised its subsidence control regulations in 1995 to
implement the Energy Policy Act of 1992 (the Energy Policy Act),
enacted on October 24, 1992, which amended SMCRA by adding section 720.
60 FR 16722 (Mar. 31, 1995). Section 720(a) of SMCRA itself
specifically focuses on the operators' obligations, providing, in
relevant part: ``Underground coal mining operations . . . shall comply
with each of the following requirements: (1) Promptly repair, or
compensate for, material damage resulting from subsidence. . . .'' 30
U.S.C. 1309a(a). The final regulation did likewise, providing in
relevant part: ``The permittee must promptly repair, or compensate the
owner for, material damage resulting from subsidence. . . .'' 30 CFR
817.121(c)(2). These provisions only reference the owners of materially
damaged structures with respect to how they must be compensated should
compensation occur in lieu of repair. While the preamble to our 1995
final rule did not explicitly state that the option to repair or
replace is the operator's, that interpretation is evident in our
discussion of 30 CFR 817.121(c)(5) (Adjustment of bond amount for
subsidence damage), in which we state: ``Further, the final rule
provides that if the permittee intends to repair the damage, the
required additional bond would amount to the estimated cost of the
repairs. If the permittee intends to compensate the owner, the
additional bond would amount to the diminution in value of the
protected land or structures.'' 60 FR at 16741. This reading is also
consistent with the preamble to our initial program regulations,
written before the Energy Policy Act was enacted, which indicated the
operator had the choice between repair and compensation. See 44 FR
14902, 15275 (March 13, 1979) (explaining that ``insurance is one
alternative from which operators can choose to meet the requirements of
this Section,'' and further explaining the elimination of landowner
``consultation'' from the proposed regulation in favor of options for
the operator and protections for the surface owner).
OSMRE has approved alternatives to the options provided under
SMCRA, including Pennsylvania's omission of compensation for the
decrease in value of the structure in favor of compensation for the
reasonable cost of repair or reasonable cost of replacement. See 66 FR
67010, 67020, 67037 (Dec. 27, 2001). As OSMRE acknowledged in its 2001
approval of Pennsylvania's provisions, and as one commenter to this
amendment points out, the cost of repair or replacement may in some
cases greatly exceed the diminution in the structure or facility's
value. (See 66 FR at 67020). However, as discussed above, section
720(a) of SMCRA allows the operator to choose the remedy. Under most
circumstances, an operator would be expected to, and is only required
to, choose the remedy with the lesser cost. In other words, under
SMCRA, if the cost to repair or replace a structure far exceeds the
pre-mining value of the structure, a mining operator who materially
damages the structure need only compensate the owner for the loss in
value. OSMRE's 2001 approval of Pennsylvania's provisions is
consistent. Pennsylvania's provisions do not require compensation for
repair or replacement at any cost but instead only require compensation
for ``reasonable'' cost of repair or ``reasonable'' cost of
replacement. The operator's option to fulfill the requirement by
obtaining a premium-prepaid insurance policy is also evidence that the
operator's liability is not without limit.
In West Virginia, if the cost of repair or replacement exceeds 120%
of the pre-mining value of the structure, the operator retains the
alternative option to compensate the owner for the loss in value rather
than pursue repair or replacement. By allowing the landowner to choose
the greater compensation that would otherwise be available under
section 720(a)(1) of SMCRA, though not without limit, West Virginia's
proposed amendment is not less stringent than SMCRA nor less effective
than 30 CFR 817.121, and, therefore, we are approving it. We are also
approving the revision clarifying that CSR 38-2-16.2.c.2 does not
create additional property rights or vest in the WVDEP Secretary the
jurisdiction to adjudicate property rights. Nothing in SMCRA creates
property rights or vests in, or requires, any State regulatory
authority to adjudicate property rights, which are typically
adjudicated in State court.
IV. Summary and Disposition of Comments
Public Comments
On December 16, 2020, we published a Federal Register notice (85 FR
81436) (Administrative Record Number 1652) and requested comments on
the proposed revisions to the program. We received comments from West
Virginia Coal Association (WVCA) by hardcopy and one comment by a
citizen through a public meeting held virtually on January 14, 2022.
These comments are summarized and addressed below.
A. WVCA stated in its letter that the plain language of the Federal
regulations make clear that the operator decides whether to repair a
structure or facility or pay compensation in the amount of the
diminution in value. WVCA traced much of the regulatory history of our
regulation at 30 CFR 817.121 from 1979 to present in support of its
assertion. WVCA asserts that the current amendment, which gives the
surface landowner the power to choose the remedy, makes CSR 38-2-
16.2.c.2 more stringent than the Federal requirement and strikes a fair
and equitable balance between common law property rights and the duty
to protect surface owners from the potentially adverse impacts of coal
extraction.
OSMRE Response: Because the comments support the approval of the
amendment, a position with which OSMRE agrees, we are making no
response. A discussion of our findings is in Section III.B., above.
B. WVCA stated that the revision to CSR 38-2-11.3.a.3 makes this
regulation functionally identical to the corresponding provision of the
Federal regulations and supports its approval.
OSMRE Response: Because the comments support the approval of the
amendment, a position with which OSMRE agrees, we are making no
response. A discussion of our findings is in section III.A., above.
C. A commenter stated that the rights of the surface and mineral
owners and other persons with legal interest in the land should be
adequately protected. The commenter noted that CSR 38-2-16.2.c.2 is
similar, if not verbatim, to the correlating Federal regulation and
asserted that under these provisions, if a monetary settlement cannot
be reached, the surface owner can require the coal operator to repair
the structures or facilities without a stated restriction as to cost.
The commenter argued that eliminating the operator's obligation to
repair the structure or facility and placing a limit on the amount of
compensation for repair is inequitable due to the variability and
difficulty of appraising the value of certain structures and
facilities, including homes on different acreages, barns, utility
buildings, and bridges that allow access to the property. The commenter
stated that this has led to scenarios where the cost of repair greatly
exceeded 120% of the pre-mining value of the structure or facility.
OSMRE Response: While we acknowledge that under certain
circumstances the cost to repair a structure or facility could exceed
120%
[[Page 64804]]
of both the pre-mining value and the diminution in value, we disagree
that the Federal program allows the surface landowner to require repair
without any stated restriction as to cost. We have never interpreted
section 720(a)(1) to require an operator to repair a structure or
facility at any cost, as evidenced by the regulatory history of 30 CFR
817.121 and the operator's option under section 720(a)(1) to fulfill
this requirement with a premium-prepaid insurance policy. We agree that
variability and difficulties exist in the process of appraising the
value of structures and facilities, but operators and landowners that
disagree over those issues may seek resolution in a court with
jurisdiction to adjudicate them.
Federal Agency Comments
On May 5, 2020 (Administrative Record No. WV-1646), 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. We did not receive any comments.
Environmental Protection Agency (EPA) Concurrence and Comments
Under 30 CFR 732.17(h)(11)(ii), we are required to obtain 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.). OSMRE determined that none of the proposed State
revisions pertained to air or water quality standards; therefore, EPA's
concurrence was not requested on this amendment. EPA did not respond
with any comments to this amendment.
State Historical Preservation Officer (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 May 5, 2020, we requested comments on West Virginia's
amendment (Administrative Record No. 1646). We did not receive comments
from the SHPO or ACHP.
V. OSMRE's Decision
Based on the above findings, we are approving the West Virginia
amendment that was submitted on May 5, 2020 (Administrative Record No.
1640). 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 (5 U.S.C. 533), 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, Executive Order
13563--Improving Regulation and Regulatory Review, and Executive Order
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 (OMB Memo M-94-
3), 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 the amendment that the State of 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 an
amendment to the West Virginia program submitted and drafted by the
State, and thus 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 other Tribal lands and
it does not affect the regulation of activities on Indian lands or
other Tribal lands. Indian lands under SMCRA are regulated
independently under the applicable approved Federal Indian 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 identify and engage appropriate Tribal
stakeholders to devise a constructive approach for consulting on these
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
[[Page 64805]]
(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.
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).
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 set forth below:
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. Section 948.15 is amended in the table by adding a new entry in
chronological order by ``Date of final publication'' to read as
follows:
Sec. 948.15 Approval of West Virginia regulatory program amendment.
* * * * *
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Original amendment submission date Date of final publication Citation/description
----------------------------------------------------------------------------------------------------------------
* * * * * * *
May 5, 2020............................. August 8, 2024............. 11.3.a.3--(Surety Bonds; quarterly
statements; corporate surety licensed in
the State.)
16.2.c.2--(Owner Compensation; repair)
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[FR Doc. 2024-17334 Filed 8-7-24; 8:45 am]
BILLING CODE 4310-05-P
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