Rule2025-21782
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
December 3, 2025
Effective
January 2, 2026
Issuing agencies
Interior DepartmentSurface Mining Reclamation and Enforcement Office
Abstract
We, the Office of Surface Mining Reclamation and Enforcement (OSMRE), approve in part amendments to the West Virginia regulatory program (the West Virginia program) under the Surface Mining Control and Reclamation Act of 1977 (SMCRA or the Act). These amendments make changes to the West Virginia Coal Mining and Reclamation Act (WVSCMRA), the Code of West Virginia (W.Va. Code), and the West Virginia Code of State Rules (CSR). We approve 12 provisions, approving with understanding 5 provisions, and not approving 1 provision.
Full Text
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<title>Federal Register, Volume 90 Issue 230 (Wednesday, December 3, 2025)</title>
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[Federal Register Volume 90, Number 230 (Wednesday, December 3, 2025)]
[Rules and Regulations]
[Pages 55658-55671]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2025-21782]
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 948
[WV-116-FOR; OSM-2009-0008; S1D1S SS08011000 SX064A000 245S180110;
S2D2S SS08011000 SX064A000 24XS501520]
West Virginia Regulatory Program
AGENCY: Office of Surface Mining Reclamation and Enforcement, Interior.
ACTION: Final rule; partial approval of amendment with 12 approved
provisions, 5 provisions receiving qualified approval, and 1 not
approved provision.
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SUMMARY: We, the Office of Surface Mining Reclamation and Enforcement
(OSMRE), approve in part amendments to the West Virginia regulatory
program (the West Virginia program) under the Surface Mining Control
and Reclamation Act of 1977 (SMCRA or the Act). These amendments make
changes to the West Virginia Coal Mining and Reclamation Act (WVSCMRA),
the Code of West Virginia (W.Va. Code), and the West Virginia Code of
State Rules (CSR). We approve 12 provisions, approving with
understanding 5 provisions, and not approving 1 provision.
DATES: This rule is effective January 2, 2026.
FOR FURTHER INFORMATION CONTACT: Mr. Justin Adams, Director, Charleston
Field Office, Telephone: (304) 977-7450. Email: <a href="/cdn-cgi/l/email-protection#a1ced2cc8cc2c9c7cee1ced2ccd3c48fc6ced7"><span class="__cf_email__" data-cfemail="92fde1ffbff1faf4fdd2fde1ffe0f7bcf5fde4">[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 Review
I. Background on the West Virginia Program
Subject to OSMRE's oversight, 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 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. 30 U.S.C. 1253(a)(1); 30 U.S.C. 1253(a)(7).
Based on these criteria, the Secretary of the Interior conditionally
approved the West Virginia program on January 21, 1981. You can find
additional 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 West Virginia's program and program amendments at 30 CFR
948.10, 948.12, 948.13, 948.15, and 948.16.
II. Submission of the Amendment
West Virginia revised its Code of State Regulations (CSR) and the
West Virginia Code (W.Va. Code), as reflected in four bills enacted by
the legislature in 2009: Senate Bill (SB) 153, SB 436, SB 600, and SB
1011. The amendment approved by this final rule covers a variety of
topics, including continuing oversight by the Secretary of the West
Virginia Department of Environmental Protection (WVDEP) of ``approved
persons'' who prepare, sign, or certify mining permit applications and
related materials; incidental boundary revisions (IBRs) to existing
permits; deletion of the Coal Bonding Calculations Tables; changing the
term ``Bio-oil'' to ``Bio-fuel''; clarifying standards at CSR 38-2-
9.3.f that pertain to West Virginia's regulatory program for
revegetation success standards for areas developed for hayland or
pasture use; and adjusting the per-ton coal tax.
By letter dated May 11, 2009 (Administrative Record No. WV 1522),
WVDEP submitted one of several amendments regarding its approved
regulatory program under West Virginia's Surface Mining Reclamation
Regulations at CSR title 38, series 2. This amendment includes
regulatory revisions implemented by the passage of SB 153, which was
adopted by the West Virginia Legislature on April 8, 2009, and signed
into law by the Governor on April 30, 2009.
SB 153 included provisions for the continued oversight of
``approved persons'' who prepare, sign, or certify mining permit
applications and related materials. The bill also included provisions
modifying IBR requirements for existing permits by clarifying that
certain types of collateral activities are deemed parts of the primary
mining operations and, therefore, subject to the same acreage
limitations while providing additional criteria for the WVDEP Secretary
to consider in evaluating an application for revision. The bill deletes
the requirement that the Secretary must advertise all IBR applications
and provide a 10-day public comment period and would instead allow IBRs
deemed ``insignificant'' to be approved without public notice. In
addition, the bill deleted the Coal Bonding Calculations Tables without
changing the regulatory criteria the tables represented, changed the
term ``Bio-oil'' to ``Bio-fuel,'' and clarified revegetation standards
for hayland and pasture use. We initially determined that the change
from ``Bio-oil'' to ``Bio-fuel'' was non-substantive and that
soliciting public comment was unnecessary, but we later sought further
clarification from WVDEP about the use of those terms, as further
discussed below.
By letter dated May 22, 2009 (Administrative Record No. WV 1521),
WVDEP submitted two additional
[[Page 55659]]
legislative enactments, SB 436 and Committee Substitute SB 600. SB 436
was adopted by the West Virginia Legislature on April 3, 2009, and was
signed into law by the Governor on April 11, 2009. SB 600, which
authorized changes to West Virginia's alternative bonding system, was
passed by the Legislature on April 10, 2009, and was signed into law by
the Governor on May 4, 2009, with an effective date of July 1, 2009.
SB 436 amended W.Va. Code 22-3-8. In addition to non-substantive
textual changes, SB 436 replaced references to certain defunct agencies
at W.Va. Code 22-3-8(6)(A) by substituting their modern analogs. The
May 22, 2009, letter advised that West Virginia considers the revisions
authorized by SB 436 to be non-substantive changes and requested that
they not be included in the proposed rule. Given the nature of the
changes, we concurred with West Virginia's assessment and found them to
be non-substantive changes. Therefore, we did not solicit public
comment on these revisions in the October 21, 2009, proposed rule.
Further, because the revisions amended a statutory provision of West
Virginia's approved program, we are approving them without specific
findings.
SB 600, also transmitted by the May 22, 2009, letter, amended W.Va.
Code 22-3-11. As stated in West Virginia's May 22, 2009, letter
transmitting the amendment for approval on an interim basis, SB 600
amended Section 22-3-11 ``to implement actuarial recommendations
relating to the continuing fiscal viability of the Special Reclamation
Fund.'' The letter explained that the ``legislation consolidates what
has been known as `the 7-and-7.4 tax' (the 7.4 [cents per ton] portion
of which is currently subject to annual renewal) into a 14.4 cent tax
per ton of clean coal mined, reviewable every 2 years by the
Legislature.'' We approved the revision on an interim basis and
solicited public comment in the Federal Register on July 22, 2009 (74
FR 36113) (Administrative Record No. WV 1528). The public comment
period on the interim rule closed on August 21, 2009.
By letter dated July 6, 2009 (Administrative Record No. WV 1523),
WVDEP also submitted a copy of SB 1011. SB 1011 amended the West
Virginia Code at 22-3-10, 5B-2A-3, 5B-2A-5, 5B-2A-6, and 5B-2A-9. The
amendments require surface mine reclamation plans to comport with
approved master land use plans, as defined at CSR 145-8-2.11, and
authorize surface mine reclamation plans to contain alternative
postmining land uses. SB 1011 was passed by the West Virginia
Legislature on June 2, 2009, and was signed into law by the Governor on
June 17, 2009.
In sum, West Virginia submitted a total of three letters relevant
to this final rule (May 11, 2009, May 22, 2009, and July 9, 2009),
transmitting four legislative enactments (SB 153, SB 436, SB 600, and
SB 1011). As noted above, the changes enacted in SB 600 were adopted in
an interim rule published on July 22, 2009 (74 FR 36113), and public
comment was solicited. The changes reflected in SB 153, SB 436, and SB
1011 were announced in a notice of proposed rulemaking published in the
Federal Register on October 21, 2009 (74 FR 53972). In the October 21
notice, we opened the public comment period on the proposed rule and
provided an opportunity for a public hearing or meeting on the adequacy
of the proposed amendments (Administrative Record No. WV 1533). We did
not hold a hearing or a meeting because none were requested. The public
comment period closed on November 20, 2009.
Additional administrative events in connection with WVDEP's 2009
submissions followed in 2010 and 2011. While responding to a request we
submitted by email on July 26, 2010 (Administrative Record No. WV
1544), we asked WVDEP to provide a definition of ``Bio-oil'' and ``Bio-
fuel'' and an explanation of the differences between them. WVDEP
explained that bio-fuels ``are a wide range of fuels which are derived
from biomass.'' WVDEP noted that the term bio-fuel ``covers solid
biomass, liquid fuels, and various biogases while bio-oil was limited
to biodiesel.'' Given WVDEP's explanation, we reopened the 15-day
comment period on February 7, 2011 (76 FR 6589) in order to afford the
public the opportunity to comment on the proposed amendment to change
an allowed type of cropland postmining land use from ``bio-oil'' to
``bio-fuel.'' We did not hold a hearing or a meeting because none were
requested. The public comment period closed on February 22, 2011.
In a November 9, 2011, response to our June 7, 2011, letter
(Administrative Record No. WV 1559), WVDEP submitted additional
clarification on its use of cropland for bio-fuel production as a
postmining land use (Administrative Record No. WV 1559). In addition,
WVDEP submitted West Virginia's Noxious Weed Act Rules (title 61,
series 14A) of 1976 and the Federal Noxious Weed List as of January 6,
2006 (Administrative Record No. WV 1574).
III. OSMRE's Findings
We approve in part and disapprove in part the revisions proposed by
West Virginia as described below. We made the following findings about
West Virginia's amendments as provided under SMCRA and the Federal
regulations at 30 CFR 730.5, 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
numbers referenced at the top of this notice.
1. CSR 38-2-3.15. Permit Applications: Approved Persons
West Virginia amended CSR 38-2-3.15 by changing a reference to
section ``13(b)(10)'' of the Act to ``13(b)(10)(C)'' to clarify when an
approved person must be a registered professional engineer or licensed
land surveyor. West Virginia also amended CSR 38-2-3.15.b by adding
language to require that an approved person's approval be in writing,
the approval is subject to annual renewal, and that approvals and
renewals be granted on the basis of the criteria set forth in
subsections 3.15.b.1 through 3.15.b.2.
While there is no direct Federal counterpart to this requirement,
we find that, as amended, subsections 3.15.a and 3.15.b are no less
effective than the Federal requirements pertaining to professional
certification and other application requirements under the provisions
of 30 CFR 777.11(c) (concerning application oath requirement),
777.13(b) and 780.14(c) (imposing various professional certification
requirements), and that these requirements are in accordance with
sections 507(b)(14) and 515(b)(10)(B)(ii) of SMCRA, 30 U.S.C.
1257(b)(14) and 1265(b)(10)(B)(ii) (setting professional certification
requirements for submission of cross-sections, maps, or plans, and for
design of siltation structures). For these reasons, we approve these
changes.
2. CSR 38-2-3.15.b.3. Permit Applications: Approved Persons
West Virginia has proposed to add new language at CSR 38-2-3.15.b.3
that requires an approved person, as defined in CSR 38-2-3.15.a, to use
a digital signature and requires such person to maintain the capability
of submitting documents bearing digital signatures to the Secretary.
This provision provides that a digital signature will have the same
effect as any other signature for the purposes of this subsection.
[[Page 55660]]
While there is no direct Federal counterpart to this requirement,
we find that, as amended, subsection 3.15.b.3 is no less effective than
the Federal requirements governing approved persons under the
provisions of 30 CFR 777.11 (concerning applications for permits,
revisions, and permit rights), 777.13, and 780.14(c) (imposing various
professional certification requirements) and is in accordance with
SMCRA provisions at 30 U.S.C. 1257(b)(14) and 1265(b)(10)(B)(ii)
(setting professional certification requirements for submission of
cross-sections, maps or plans, and for design of siltation structures).
Therefore, we approve these changes.
3. CSR 38-2-3.15.e. Disciplinary Action, Procedures, Imposition of
Conditions, Suspension, and Revocation of Approved Persons
West Virginia proposes to add a new provision at CSR 38-2-3.15.e
that would authorize the Secretary of WVDEP to take disciplinary
actions against a person approved to prepare, sign, or certify permit
applications, such as suspending or revoking that person's ``approved
person'' status in the event of fraud, negligence, or other enumerated
behaviors.
While there is no direct Federal counterpart to these new
provisions, we find that, as amended, CSR 38-2-3.15.e is no less
effective than the Federal requirements governing approved persons
under the provisions of 30 CFR 777.11 (concerning applications for
permits, revisions, and permit rights), 777.13, and 780.14(c) (imposing
various professional certification requirements) and is in accordance
with SMCRA provisions at 30 U.S.C. 1257(b)(14) and 1265(b)(10)(B)(ii)
(setting professional certification requirements for submission of
cross-sections, maps or plans, and for design of siltation structures).
Therefore, we approve this new provision.
4. CSR 38-2-3.15.f. Disciplinary Action, Procedures, Imposition of
Conditions, Suspension, and Revocation of Approved Persons
West Virginia proposes to add a new provision at CSR 38-2-3.15.f,
which provides that a person adversely affected by the Secretary taking
one or more actions against them under CSR 38-2-3.15.e will receive
notice of the action and receive the right to request a hearing to
challenge the Secretary's decision.
While there is no direct Federal counterpart to these new
provisions, we find that, as amended, CSR 38-2-3.15.f is no less
effective than the Federal requirements governing approved persons
under the provisions of 30 CFR 777.11 (concerning applications for
permits, revisions, and permit rights), 777.13, and 780.14(c)(imposing
various professional certification requirements) and is in accordance
with SMCRA provisions at 30 U.S.C. 1257(b)(14) and 1265(b)(10)(B)(ii)
(setting professional certification requirements for submission of
cross-sections, maps or plans, and for design of siltation structures).
Therefore, we approve this new provision.
5. CSR 38-2-3.28.b.1. Permit Revision
The prior version of CSR 38-2-28.b.1 provided that where a permit
revision constitutes a significant departure from the terms and
conditions of the existing permit that may result in a significant
impact in certain defined areas, it will be deemed to be a significant
revision and be subject to the public notice requirements of CSR 38-2-
3.2.a and CSR 38-2-3.2.b. West Virginia now proposes to make such
permit revisions also subject to the public notice requirements at CSR
38-2-3.2.c. and CSR 38-2-3.2.d. CSR 38-2-3.2.c requires the Secretary
to provide notice to State and Federal governmental agencies of such
permit revisions and CSR 38-2-3.2.d requires the Secretary to maintain
a file containing public comments and other similar materials and to
publish or notify certain parties when a permit or revision is issued.
Section 511 of SMCRA (30 U.S.C. 1261) and the Federal regulations
at 30 CFR 774.13 set forth the Federal requirements for permit
revisions. Except as discussed below, we find that West Virginia's
requirements are in accordance with section 511 of SMCRA and no less
effective than the Federal requirements at 30 CFR 774.13.
The Federal regulations at 30 CFR 778.21 require submission of
proof of publication of an advertisement notifying the public of a
permit application, significant permit revision, or permit renewal to
be filed with the regulatory authority no less than 4 weeks after the
last date of publication; the requirements for the advertisement must
comply with the requirements of 30 CFR 773.6(a)(1). West Virginia also
requires proof of publication of the advertisement for a permit action
at CSR 38-2-3.2.g, once the application is deemed technically complete.
However, West Virginia's proposed revisions to CSR 38-2-3.28.b.1 do not
also include a reference to the proof of publication rules at CSR 38-2-
3.2.g. We are nevertheless approving the West Virginia's changes to CSR
38-2-28.b.1 with the understanding that West Virginia will also require
proof of publication of the advertisement for permit actions, including
permit revisions, once they are deemed technically complete, as
provided by CSR 38-2-3.2.g and 30 CFR 778.21. If we determine in the
future that West Virginia is implementing this provision differently,
we may require West Virginia to submit a program amendment to revise
their program to reflect our understanding of this provision.
6. CSR 38-2-3.29.a. Incidental Boundary Revisions (IBRs)
West Virginia proposes to delete language prohibiting the use of
IBRs to abate a violation where encroachment beyond the permit area is
involved, unless an equal amount of acreage is deleted from the permit
area.
The Federal requirements governing IBRs are set forth in section
511(a)(3) of SMCRA (30 U.S.C. 1261(a)(3)) and 30 CFR 774.13(d). The
Federal requirements do not specifically address the potential use of
IBRs to abate violations. However, section 511(a)(3) of SMCRA and 30
CFR 774.13(d) clearly provide that any extensions to an area covered by
a permit except IBRs must be made by application for another permit.
IBRs are intended to allow for limited or minor adjustments in permit
boundaries to account for landslides, sinkholes, or other unanticipated
events.
While there is no discussion in the preamble of the Federal
regulations that mentions the use of IBRs to abate violations, we have
discussed in our original approvals that the use of IBRs to abate
violations would be contrary to the intent of SMCRA, especially when an
operator intentionally removes coal beyond an original permit boundary.
55 FR 21316 (May 23, 1990); 61 FR 6520 (Feb. 21, 1996). We recognize
that there could be a situation where a State regulatory authority
would order an operator to obtain an IBR as part of its remedial
measures to abate an unanticipated event that would require an operator
to go outside the original permit area to abate the violation. In this
type of instance, the operator has no intent to remove coal beyond the
existing permit area or to mine additional acreage.
Therefore, except as discussed below, we find that the proposed
deletion at CSR 38-2-3.29.a is in accordance with the Federal IBR
requirements at section 511(a)(3) of SMCRA and consistent with 30 CFR
774.13(d). Furthermore, we are approving the proposed deletion of the
language at CSR 38-2-3.29.a, which reads, ``or to abate a violation
where encroachment beyond the permit
[[Page 55661]]
boundary is involved, unless an equal amount of acreage covered under
the IBR for encroachment is deleted from the permitted area and
transferred to the encroachment area.'' We have long maintained that an
IBR cannot be used for the primary purpose of increasing the size of
the area from which coal may be removed. Furthermore, only minor
adjustments in the area for coal removal may occur so long as the total
area permitted for coal removal is not increased.
Therefore, we are approving the deletion at CSR 38-2-3.29.a with
the understanding that the primary purpose of an IBR cannot be to
provide for coal removal. In a situation where coal removal is
intentional and the primary purpose for operations conducted outside of
the existing permit area, we expect WVDEP to require an operator to
remove acreage from the permitted area and transfer it to the
encroachment area. If we determine, in the future, that West Virginia
is implementing this provision differently, we may require West
Virginia to submit a program amendment to revise their program to
reflect our understanding of this provision.
7. CSR 38-2-3.29.b.2. Incidental Boundary Revisions--Acreage Limitation
West Virginia proposes to add language that will increase its IBR
acreage limitation and apply its waiver provisions for underground
mining operations to other mining operations, including, but not
limited to, loadout operations, coal refuse disposal operations, and
coal preparation operations. The Federal regulations at 30 CFR
774.13(d), like W.Va. Code 22-3-19(b)(3) and section 511 of SMCRA (30
U.S.C. 1261(a)(3)), provide that any extensions to the area covered by
a permit, except IBRs, must be made by application for a new permit.
However, the term IBR is not defined in SMCRA, the Federal regulations,
or applicable West Virginia law. West Virginia attempted to fill this
void by defining it through its regulations.
In the May 23, 1990 Federal Register (55 FR 21316), we found West
Virginia's original IBR requirements to be consistent with SMCRA and no
less effective than the Federal regulations because the proposed State
criteria recognized the distinct differences between surface and
underground mining operations as required by section 516(a) of SMCRA
(30 U.S.C. 1266(a)), and the criteria gave reasonable meaning to the
term ``IBR'' in that such revisions would result in only minor or
insignificant changes to the permit area. On February 21, 1996, we
approved additional State revisions that allowed IBRs for underground
mines in West Virginia to be larger than 50 acres when an applicant
demonstrated the need for a larger IBR, and because no IBRs would be
authorized by West Virginia where additional coal removal is the
primary purpose of the IBR. 61 FR 6520.
While the term ``IBR'' is not specifically defined in the Federal
regulations, the term ``incidental'' at least implies that such
revisions be minor in nature, so as not to cause significant changes to
the environment or to the considerations upon which permit conditions
and permit approval are based. With this amendment, West Virginia is
proposing to increase the IBR acreage limitation for mining operations
other than coal removal, including loadouts, coal refuse disposal, and
coal preparation operations.
When we approved West Virginia's IBR requirements in the May 23,
1990, Federal Register (55 FR 21316), the different IBR acreage limits
for surface mines and underground mines were recognized. We
acknowledged that surface disturbances for underground mines were
generally smaller, more static, and of a longer term than for surface
mines. Therefore, we found that the IBR acreage limitation for
underground mining operations of 150 percent of the original permitted
acreage or a maximum of 50 acres, whichever is less, throughout the
life of the permit was not inconsistent with the Federal requirements.
In addition, we approved West Virginia's waiver provision allowing
larger IBR acreage limits for underground mining operations when the
need for such facilities (for purposes of site development or for
construction of air shafts, fan ways, vent holes, roads, staging areas,
etc.) could be demonstrated by the operator. 61 FR 6520 (Feb. 21,
1996). Again, this provision was approved and limited to underground
mining operations because of the distinct differences between surface
and underground mining operations and because coal removal cannot be
the primary purpose of an IBR.
Under the proposed amendment, West Virginia now wants to apply its
IBR acreage limitation and its waiver provision for underground mining
operations to other mining operations, including, but not limited to,
loadout operations, coal refuse disposal operations, and coal
preparation operations. In essence, this would allow IBRs for these
types of surface mining operations to be larger than 50 acres. While
these operations may be undertaken in support of underground mining
activities, they are, by definition, surface mining operations.
As previously mentioned, we initially approved West Virginia's IBR
acreage limitation criteria because of the distinct differences between
underground and surface coal mining operations, and West Virginia's
waiver provision was limited to facilities solely associated with
underground mining operations. Under the proposed amendment, the
distinction between surface and underground mining operations would no
longer exist, and West Virginia would be free to grant waivers that
could allow unlimited acreage under an IBR for various types of surface
mining operations. Permit boundary extensions of this size could exceed
the ``incidental'' limitations authorized by Federal law and can only
be granted under a new permit or permit amendment.
We have long maintained that IBRs were not intended to add area to
construct such facilities as coal preparation plants, coal mine waste
disposal areas, etc. Given that IBRs can only provide for minor or
insignificant shifts in a permit area, the proposed State amendment
conflicts with the intent and purpose of the Federal IBR requirements.
Therefore, we find that the proposed changes to CSR 38-2-3.29.b.2 are
inconsistent with the Federal IBR requirements at section 511(a)(3) of
SMCRA (30 U.S.C. 1261(a)(3)) and 30 CFR 774.13(d), and we are not
approving these changes.
8. CSR 38-2-3.29.d. Incidental Boundary Revisions
West Virginia proposes to delete language about the findings that
the Secretary must make before approving IBRs. Currently, the Secretary
must make six required findings before approving an IBR. As proposed,
West Virginia intends to delete four of these required findings: the
requirement for the Secretary to find that approval of the IBR does not
constitute a change in the postmining land use; that approval will only
involve lands for which an approved probable hydrologic consequences
(PHC) determination is applicable; that approval does not constitute a
change in the mining method; and that approval will not result in
adverse environmental impacts of a larger scope or different nature
from those described in the approved permit. Due to the proposed
deletion of these four IBR findings, West Virginia proposes to renumber
CSR 38-2-3.29 subsections d.5 and d.6 as subsections d.1 and d.2,
respectively.
[[Page 55662]]
The provision that West Virginia proposes to amend sets forth
findings the WVDEP Secretary must make in approving an IBR. As
discussed below in Finding 9, West Virginia has proposed criteria at
CSR 38-2-3.29.e to clarify what constitutes significant and non-
significant IBRs and the public notice requirements for each. The
Federal regulations are silent regarding the difference between a
significant and an insignificant IBR.
However, because West Virginia will require that significant IBRs
be subject to the notice and comment procedures applicable to
significant permit revisions, and because the Federal regulations
provide broad discretion to the regulatory authority to establish
guidelines for determining what constitutes a significant revision, we
find that the resulting regulation, with West Virginia's proposed
deletions, is consistent with the Federal IBR requirements in section
511(a)(3) of SMCRA (30 U.S.C. 1265(a)(3)) and is as effective as 30 CFR
774.13(d) (IBR requirements) and 30 CFR 774.13(b)(2) (permit revision
requirements). Therefore, we approve these revisions.
9. CSR 38-2-3.29.e. Incidental Boundary Revisions--Criteria for
``Significant'' Classification
West Virginia proposes to add new language setting forth a standard
for determining whether an IBR should be deemed significant or non-
significant, to add new language about the review of IBR applications
to determine if an updated PHC determination or an updated cumulative
hydrologic impact assessment is required, and to delete language that
gives the Secretary the authority to require IBR applications to be
advertised and to provide for a 10-day public comment period.
The proposed amendment provides criteria to be used by the
Secretary for determining that an IBR is ``significant.'' The criteria
that West Virginia proposes to use, appearing in subsections 3.29.e.1.A
through 3.29.e.1.G, duplicate some of the existing criteria in
subsection 3.28.b.1, used for determining whether a permit revision is
significant. The proposed amendment also provides that ``significant''
IBRs are subject to the public notice requirements at CSR 38-2-3.2.a
through CSR 38-2-3.2.d. West Virginia proposes to add CSR 38-2-
3.29.e.2, which would provide that where an IBR constitutes only an
``insignificant'' departure from the terms and conditions of an
existing permit, it will be deemed to be non-significant, which
requires no public notice.
We must caution that, in using largely the same criteria to define
significant IBRs as are used in the case of significant permit
revisions, there may be conflicts in West Virginia's regulations, such
as the restriction on adding acreage through a permit revision. In
contrast, an IBR provides for minor or insignificant shifts in permit
boundaries, which could result in adding acreage. However, neither
SMCRA nor the Federal regulations require public notice or a public
comment period for the approval of an IBR.
West Virginia proposes to make significant IBRs subject to its
public notice requirements at CSR 38-2-3.2.a through CSR 38-2-3.2.d.
However, these subsections do not include the requirement for proof of
publication, which appears at CSR 38-2-3.2.g. The Federal regulations
at 30 CFR 778.21 require proof of publication for a significant
revision of a permit.
Therefore, consistent with requirements for permit revisions, we
are approving CSR 38-2-3.29.e.1 with the understanding that West
Virginia will require proof of publication of the advertisement for a
significant IBR as required by CSR 38-2-3.2.g and 30 CFR 778.21. If we
determine, in the future, that West Virginia is implementing this
provision differently, we may require West Virginia to submit a program
amendment to revise their program to reflect our understanding of this
provision.
10. CSR 38-2-7.8. Bio-Fuel Crop Land
In our proposed rule dated October 21, 2009, announcing receipt of
and a comment period on the proposed amendment, we stated that West
Virginia's proposed changes to their program, deleting ``Bio-oil'' and
replacing it with ``Bio-fuel'' were non-substantive as applied to
postmining land use of hayland or pasture. As explained in Section II
above, WVDEP subsequently explained that ``Biofuels cover are [sic] a
wide range of fuels which are derived from biomass. The term covers
solid biomass, liquid fuels and various biogases while bio-oil was
limited to biodiesel.'' See Administrative Record No. 1544. Given these
definitions, we also reopened public comment.
After the public comment period closed, we sent a letter dated June
7, 2011, (Administrative Record No. WV 1559) to WVDEP seeking
additional clarification of West Virginia's rule change from ``Bio-
oil'' to ``Bio-fuel'' at CSR 38-2-7.8. WVDEP responded first by email
on September 8, 2011, and, after we requested further clarification of
the terms on November 2, 2011, WVDEP provided a final response in an
email dated November 9, 2011, which provided West Virginia's procedures
and rules dealing with noxious weeds (Administrative Record No. WV
1574). As part of this communication, West Virginia recognized that it
cannot restrict the use of non-native plants as long as they are
biofuel sources and are not considered invasive, toxic, or noxious
under State or Federal law. WVDEP will not authorize biofuel as a
postmining land use on sites requesting a mountaintop approximate
original contour (AOC) variance unless the plans include a financial
commitment to build a biofuel plant.
Given WVDEP's clarification, we find that West Virginia's change
from bio-oil to bio-fuel for cropland or pasture as postmining land use
on all surface mining operations neither renders West Virginia's
proposed bio-fuel cropland revisions at CSR 38-2-7.8 less effective
than the Federal requirements at 30 CFR 779.19, 780.18, 780.23, 783.19,
785.14, 816.111, 816.116, 816.133 and Part 824 nor inconsistent with
sections 507(d), 508(a), 515(b)(2), 515(b)(19), and 515(c) of SMCRA (30
U.S.C. 1257(d), 1258(a), 1265(b)(2), 1265(b)(19), and 1265(c)). We
therefore approve these changes with the understanding that West
Virginia's bio-fuel cropland requirements will be implemented in the
manner described above. As with bio-oil cropland, bio-fuel cropland can
be approved for all mining operations with variances from approximate
original contour and in accordance with revegetative success standards
provided that they meet the regulatory requirements in SMCRA and the
implementing Federal regulations, and that the plans include a
financial commitment to build a bio-fuel plant. In the future, if we
determine that West Virginia is implementing this provision
differently, we may require West Virginia to submit a program amendment
to revise their program to reflect our understanding of this provision.
11. CSR 38-2-9.3.f. Revegetation Success Standards
West Virginia proposes to amend its regulatory program's
revegetation success standards by deleting the phrase ``Where the post
mining land use requires legumes and perennial grasses,'' and replacing
it with the phrase ``For areas to be developed for hayland or pasture
use.'' The proposed revision would make the introductory format of CSR
38-2-9.3.f conform with the other provisions included in CSR 38-2-9.3
by providing for specific
[[Page 55663]]
postmining land uses instead of the types of vegetative cover to be
evaluated. Legumes and grasses would still qualify as appropriate
vegetative cover where the postmining land use is ``hayland or pasture
use.''
Because WVDEP is only changing the nomenclature from `legumes and
perennial grasses' to `hayland and pasture use' and is not adjusting
the revegetation standards or the vegetative cover allowed, we find the
proposed amendment to CSR 38-2-9.3.f (concerning success standards for
evaluating vegetative cover and productivity for hayland and pasture
use) as effective as the Federal revegetation success standards at 30
CFR 816.116(b)(1) and 817.116(b)(1). Therefore, we approve this
amendment.
12. CSR 38-2-11. Site Specific Bonding Tables
West Virginia is proposing to delete the Coal Bonding Calculations
Tables 1, 2, 3, and 4 at CSR 38-2-11.5 for surface mines, underground
mines, coal preparation plants, and coal refuse sites. In addition,
West Virginia is proposing to delete language at CSR 38-2-11.5.c
through CSR 38-2-11.5.f referring to the Bonding Calculations Tables.
Inclusion of the bonding tables in West Virginia's initial program
submittal was discretionary and intended to demonstrate how the bond
rates would be calculated for individual permitted sites. West Virginia
now seeks to delete these tables as part of its regulatory program. The
criteria for calculating bond remain the same as stated in the existing
State regulations. Because removal of the tables does not alter the
process of determining bond amounts or the regulations that govern the
calculations at 30 CFR 800.14, this revision would make no change to
substantive law. Therefore, we approve this revision.
13. W.Va. Code 5B-2A-3. Definitions
West Virginia proposes to add, at W.Va. Code 5B-2A-3(a)(3), a
definition for the term ``Operator'' that cross references the existing
definition for that term given at W.Va. Code 22-3-3(n). West Virginia
also proposes to add the following definition for ``Renewable and
alternative energy'' at W.Va. Code 5B-2A-3(a)(4):
(4) ``Renewable and alternative energy'' means energy produced or
generated from natural or replenishable resources other than
traditional fossil fuels or nuclear resources and includes, without
limitation, solar energy, wind power, hydropower, geothermal energy,
biomass energy, biologically derived fuels, energy produced with
advanced coal technologies, coalbed methane, fuel produced by a coal
gasification or liquefaction facility, synthetic gas, waste coal, tire-
derived fuel, pumped storage hydroelectric power or similar energy
sources.
We find that the proposed definition for ``operator'' is in
accordance with the definition at found at section 701(13) of SMCRA (30
U.S.C. 1291(13)) and consistent with the definition for ``operator''
found at 30 CFR 701.5. While there is no direct Federal counterpart to
the proposed definition for ``Renewable and alternative energy,'' we
find that, as amended, these definitions added at W.Va. Code 5B-2A-3
are no less stringent than the definitions in section 701 of SMCRA (30
U.S.C. 1291) and are no less effective than the Federal requirements at
30 CFR 700.5 and 30 CFR 701.5. Therefore, these revisions are approved.
14. W.Va. Code 5B-2A-5. Powers and Duties
W.Va. Code 5B-2A-5(8) provides that the West Virginia Office of
Coalfield Community Development (OCCD) may, on its own initiative or by
request of a community near a mining operation, offer assistance to
facilitate the development of economic or community assets. The
previous version of W.Va. Code 5B-2A-5(8) continued: ``Such assistance
may include the preparation of a master land use plan pursuant to the
provisions of section nine of this article.'' West Virginia has
proposed to amend this sentence to replace ``may,'' which is
discretionary, with ``shall,'' which is ambiguous but, in this context,
is intended to make the preparation of a master land use plan required.
While there is no direct Federal counterpart to this requirement,
we find that, as amended, this change is no less stringent than section
508 of SMCRA (30 U.S.C. 1258) and no less effective than the Federal
requirements of 30 CFR 780.23. Therefore, we approve this change.
15. W.Va. Code 5B-2A-6. Community Impact Statement
West Virginia proposes to add a new provision at W.Va. Code 5B-2A-
6(9), which would require the community impact statement to include the
operator's acknowledgment of recommendations and infrastructure
components identified by the master land use plan. West Virginia has
also proposed to move the prior provisions of W.Va. Code 5B-2A-6(d) to
5B-2A-6(e) and add a new provision at W.Va. Code 5B-2A-6(d), which
would require the local, county, or regional development authorities in
the vicinity of a surface mining operation to provide a written
acknowledgment of receipt of the community impact statement to the
OCCD. The former provisions of W.Va. Code 5B-2A-6(d), which provides
the effective date of W.Va. Code 5B-2A-6, has been moved to newly
created W.Va. Code 5B-2A-6(e). At W.Va. Code 5B-2A-6(e)(1), West
Virginia has proposed to replace ``the effective date of this article''
with ``June 11, 1999.''
Under the proposed revisions, operators must not only develop
community impact statements but also must provide an acknowledgement of
the recommendations of any approved master land use plan that pertains
to the land to be mined and any infrastructure components needed to
accomplish the postmining land use required by the plan. While there is
no direct Federal counterpart to this requirement, we find that, as
amended, the new language added at W.Va. Code 5B-2A-6 is no less
effective than the Federal requirements in 30 CFR 780.23, 784.15,
784.16, 816/817.133 and Part 824, and no less stringent than SMCRA
sections 507, 508, and 515(b), (c), (d) and (e) (30 U.S.C. 1257, 1268,
1265(b), (c) and (e)). Therefore, we approve the revisions.
16. W.Va. Code 5B-2A-9. Securing Developable Land and Infrastructure
W.Va. Code 5B-2A-9(f) generally describes that State and local
government entities are responsible for determining land and
infrastructure needs in the general area of mining operations and
describes the creation, revision, and review of a master land use plan.
At W.Va. Code 5B-2A-9(f), West Virginia proposes to delete a provision
that ``[p]articipation in a master land use plan is voluntary.'' At
W.Va. Code 5B-2A-9(f)(1), which describes the target West Virginia
governmental units responsible for developing a master land use plan,
West Virginia proposes to replace ``State, local, county or regional
development or redevelopment authorities'' with ``[t]he county
commission or other governing body for each county in which there are
surface mining operations that are subject to this article.'' This
change would require those authorities to determine land and
infrastructure needs and develop a master land use plan along certain
lines; the revision also adds several examples to a non-exclusive list
of postmining land uses to be considered. In addition, West Virginia
proposes to add language to the end of W.Va. Code 5B-2A-9(f)(1) that
would allow a county commission or other governing body of a county to
designate a regional development or redevelopment authority to assist
in the
[[Page 55664]]
development of a master land use plan and to add that such commission
may adopt a master land use plan developed after July 1, 2009, only
after a reasonable public comment period.
West Virginia proposes to delete the prior version of W.Va. Code
5B-2A-9(f)(2), which required OCCD to review and WVDEP to approve, any
master land use plan to ensure compliance with W.Va. Code 22-3-10. West
Virginia proposes to add a requirement that OCCD assists in the
development of the master land use plan on request of a county or
designated development or redevelopment authority. West Virginia
proposes to renumber W.Va. Code 5B-2A-9(f)(3) to W.Va. Code 5B-2A-
9(f)(4) and add new provisions at W.Va. Code 5B-2A-9(f)(3)(A) through
W.Va. Code 5B-2A-9(f)(3)(D). These new provisions would require OCCD
and WVDEP to review master land use plans existing as of July 1, 2009,
to determine compliance with the amended rules and regulations, require
that master land use plans be submitted to OCCD to be approved or
disapproved within 3 months of submission, require OCCD to review
approved master land use plans every 3 years, provide stipulations for
submission and public comment of updated master land use plans, and
require the county or designated development authority to submit a
supplemental master land use plan if a prior plan was disapproved by
OCCD.
Under these requirements, an operator must include in the surface
mining permit application a master land use plan developed by the
county or by the development or redevelopment authority and approved by
OCCD. Infrastructure component standards must be in place before the
respective county development or redevelopment authority may accept
ownership of property donated pursuant to a master land use plan. As
provided in the introduction to W.Va. Code 5B-2A-9(f), no provision of
W.Va. Code 5B-2A-9 may be construed as modifying the requirements of
WVSCMRA (W.Va. Code 22-3-1 et seq.). Even as modified, and even with
the new requirement for a master land use plan in the permit
application, the Secretary still retains oversight over permit issuance
and compliance with WVSCMRA. This includes ensuring that permits
satisfy reclamation plan requirements at W.Va. Code 22-3-10 and comply
with the requirement to restore the approximate original contour at
W.Va. Code 22-3-13.
While there are no direct Federal counterparts to these
requirements about master land use plans, we find that, as amended,
W.Va. Code 5B-2A-9 is not inconsistent with the Federal requirements at
30 CFR 780.23, 784.15, 784.16, 816/817.133 and Part 824 and is in
accordance with SMCRA sections 507, 508, and 515(b)-(e) (30 U.S.C.
1257, 1258, 1265(b)-(e)). Therefore, we approve these changes.
17. W.Va. Code 22-3-10. Reclamation Plan Requirements
West Virginia proposes to add new language to W.Va. Code 22-3-10
providing a non-exclusive list of alternative postmining land uses,
allowing the Secretary to approve postmining land uses not specified in
the master land use plan under certain circumstances, allowing an
operator to seek a permit revision to include a postmining land use
approved in a master land use plan, and specifying the effective date
of these amendments.
The revised provisions are intended to require that surface mine
reclamation plans conform with master land use plans approved by OCCD
or to authorize surface mine reclamation plans that include
alternative, non-conforming postmining land uses under certain
circumstances. Although there are no specific requirements governing
compliance with master land use plans in SMCRA, we find that, except as
discussed below, the proposed revisions at W.Va. Code 22-3-10(a)(3),
(b), and (d) are in accordance with the provisions at SMCRA sections
507, 508, and 515(b)-(e) (30 U.S.C. 1257, 1258, 1265(b)-(e)) and
consistent with the Federal regulations at 30 CFR 780.23, 784.15,
784.16, 816/817.133, and are therefore approved.
West Virginia's proposed changes to W.Va. Code 5B-2A-9(f)(2) would
remove the requirement that WVDEP approve a master land use plan
ensuring compliance with W.Va. Code 22-3-10. West Virginia's proposed
changes also include, at W.Va. Code 22-3-10(a)(3)(A), a requirement
that the postmining land use proposed in any reclamation plan must
comport with the land use that is specified in the master land use plan
approved by OCCD. West Virginia has proposed to add, at W.Va. Code 22-
3-10(a)(3)(C), a provision stating that a postmining land use complying
with a master land use plan approved in accordance with W.Va. Code 5B-
2A-1 et seq., satisfies the requirements for an alternative postmining
land use and also satisfies the variance requirements at W.Va. Code 22-
3-13, if applicable to the proposed use. This scheme could arguably
allow OCCD to approve a proposed postmining land use that does not meet
the applicable reclamation and postmining land use requirements set
forth in W.Va. Code 22-3-10 and W.Va. Code 22-3-13. While West Virginia
has added new provisions that require a master land use plan to be
submitted to WVDEP and OCCD for review at W.Va. Code 5B-2A-9(f), this
section does not contain any further mention of WVDEP's oversight over
such plans or describe a consequence if WVDEP finds that the plan fails
to comply with WVSCMRA.
However, the proposed changes have made master land use plans a
required part of the reclamation plan proposed at the permit
application or permit revision stage. WVDEP still retains oversight
over permitting actions and must ensure that the reclamation plan,
including the master land use plan, complies with WVSCMRA, including
reclamation plan requirements at W.Va. Code 22-3-10 and performance
standards at W.Va. Code 22-3-13. Approval of a master land use plan by
OCCD does not create a safe harbor allowing a postmining land use that
is inconsistent with West Virginia's reclamation plan, an alternative
postmining land use, or the AOC requirements at W.Va. Code 22-3-1 et
seq.
We are approving these changes with the understanding that WVDEP
will continue to ensure compliance of the reclamation plan, including
any master land use plan, with WVSCMRA. WVDEP must review any such plan
to ensure they meet the requirements of the reclamation plan, the
alternative postmining land use, and the AOC variance requirements of
the approved program to ensure that WVSCMRA continues to accord with
sections 508 and 515 of SMCRA. If we determine, in the future, that
West Virginia is implementing this provision differently, we may
require West Virginia to submit a program amendment to revise their
program to reflect our understanding of this provision.
18. W.Va. Code 22-3-11. Bonds
The prior version of W.Va. Code 22-3-11(h)(1) contained a two-stage
special reclamation tax on each ton of coal extracted. The tax was to
be initially assessed at seven and four-tenths cents per ton for the
first 12 months after the tax was established, increasing an additional
seven cents per ton effective July 1, 2009. We approved West Virginia's
alternative bonding provisions on an interim basis in the July 22,
2009, Federal Register (74 FR 36113), and in the same notice provided
for a public comment period and an opportunity for a public hearing. We
subsequently approved an increase in the tax to twenty-seven and nine-
tenths cent, per actuarial recommendations, in
[[Page 55665]]
the July 11, 2012, Federal Register (77 FR 40793), and provided an
opportunity for public comment. West Virginia has proposed to amend
W.Va. Code 22-3-11(h)(1) by removing obsolete references to the
expired, lesser rate, and reorganizing W.Va. Code 22-3-11(h)(1) for
clarity. In addition, the prior language of this subsection required
the additional seven cent tax to be reviewed and, if necessary,
adjusted annually by the legislature on recommendation of the Special
Reclamation Fund Advisory Council. West Virginia has proposed to
replace this with a requirement that the legislature review the tax
rate every 2 years to determine whether it should be continued. The
existing requirement that the special reclamation tax cannot be reduced
``until the Special Reclamation Fund and Special Reclamation Water
Trust Fund have sufficient moneys to meet the reclamation
responsibilities of the state'' is left intact.
Pursuant to the Administrative Procedure Act at 5 U.S.C.
553(b)(3)(B), we found that good cause existed to approve the revisions
on an interim basis, without notice and the opportunity for comment,
which would have delayed collection of the increased special
reclamation tax, contrary to the public interest.
In addition, as provided by W.Va. Code 22-1-17(g), the Special
Reclamation Fund Advisory Council is required to submit annually to the
legislature and the governor a report on the adequacy of the special
reclamation tax and the fiscal condition of the special reclamation
fund. The report is to include a recommendation on whether any
adjustments to the special reclamation tax should be made.
Therefore, we find the proposed State revisions to W.Va. Code 22-3-
11(h)(1), when read in combination with existing W.Va. Code 22-1-17(g),
to be consistent with the Federal alternative bonding requirements at
section 509(c) of SMCRA (30 U.S.C. 1259) and no less effective than the
Federal alternative bonding requirements at 30 CFR 800.11(e).
Accordingly, we approve the changes.
West Virginia's proposed alternative bonding provisions, as
discussed above, are approved on a permanent basis.
IV. Summary and Disposition of Comments
Public Comments
On July 22, 2009, we published a Federal Register notice (74 FR
36113) announcing our approval on an interim basis of West Virginia's
alternative bonding revisions enacted in SB 436 and SB 600 and
submitted by letter dated May 22, 2009 (Administrative Record No. WV
1521). The July 22 notice requested public comments on the revisions
(Administrative Record No. WV 1528).
On October 21, 2009, we published a Federal Register notice (74 FR
53972) (Administrative Record No. WV 1533) and asked for public
comments on additional program amendments, as submitted by WVDEP in
letters dated May 11, 2009, and July 6, 2009 (Administrative Record
Nos. WV 1522 and WV 1523). Several of the revisions were enacted in SB
153 and SB 1011 and the remainder were the result of WVDEP rulemaking
under existing statutory authority. On November 20, 2009, the West
Virginia Highlands Conservancy (WVHC) requested an extension of the
comment period (Administrative Record No. WV 1542). An extension was
granted, and the comment period closed on December 18, 2009
(Administrative Record No. WV 1542).
On February 7, 2011, we published another Federal Register notice
(76 FR 6589) concerning one of the revisions proposed in the October
21, 2009, notice, in particular, a provision authorizing postmining use
of cropland for bio-fuel production. We also reopened the comment
period on this one revision (Administrative Record No. WV 1554). The
comment period closed on February 22, 2011.
By letter dated December 17, 2009, WVHC submitted written comments
on the October 21, 2009, notice (Administrative Record No. WV 1541). No
other public comments were received.
1. WVHC explained that the unchanged original language of
subsection 3.29.a establishes a generally positive limitation on the
use of IBRs. However, WVHC stated that the proposed deletion in
subsection 3.29.a of the prohibition on use of IBRs to address
unauthorized mining outside of the original permit areas is
unexplained. According to WVHC, an unexplained amendment that expands
the use of IBRs to circumstances where such use is now unauthorized is
arbitrary and capricious. WVHC contends that West Virginia has a legal
obligation to justify every expansion in the use of IBRs in lieu of
permit revisions.
OSMRE Response: WVDEP proposed to delete language prohibiting the
use of IBRs to abate a violation where encroachment beyond the permit
area is involved, unless an equal amount of acreage is deleted from the
permit area. As discussed above in Finding 6, the Federal regulations
do not specifically provide for the use of IBRs to abate violations. It
could be argued that the proposed deletion at subsection 3.29.a is
meant to allow an operator to conduct an operation outside the permit
area without obtaining a new permit or to obtain an IBR to abate a
violation without requiring the acreage to be deleted from the
permitted area and transferred to the encroachment area. However, there
is no positive grant of any such right to conduct mining operations
outside the permitted area. While the rule with its proposed deletion
is still no less stringent than SMCRA and no less effective than the
Federal regulations, we will continue to monitor the implementation of
IBR provisions in West Virginia to ensure that WVDEP continues to
require operators whose primary purpose is coal removal to delete
acreage from the permitted area and transfer it to the encroachment
area.
2. WVHC also stated that the authority in subsection 3.29.b.2
allowing use of IBRs to expand the permit areas of other mining
operations, including but not limited to loadout operations, coal
refuse disposal operations and coal preparation operations, is
unexplained and, therefore, arbitrary and capricious. According to
WVHC, WVDEP has a legal obligation to justify every expansion in the
use of IBRs in lieu of permit revisions. In addition, WVHC commented
that all the other (mining) operations are conducted primarily or
exclusively on the surface and, therefore, logically should be subject
to the same limitations on IBR use as surface mining operations,
OSMRE Response: As discussed above in Finding 7, WVDEP proposes to
increase its IBR acreage limitation and apply its waiver provisions for
underground mining operations to certain surface activities associated
with underground mining operations, including, but not limited to,
loadout operations, coal refuse disposal operations, and coal
preparation operations. In the 1990s, we initially approved West
Virginia's 50-acre limitation on IBR waivers for underground mining
because of the distinct differences between underground and surface
coal mining operations. West Virginia's waiver provision, allowing
expansion up to 50 acres, was limited to underground mining operations.
This would not be the case under the proposed amendment, which
effectively ignores the distinction between surface and underground
mining operations in the IBR context, and West Virginia would be free
to grant waivers that could allow unlimited acreage under an IBR for
[[Page 55666]]
surface mining operations. Therefore, as explained in Finding 7, we are
not approving the language proposed in WVDEP's revision that states
``and other mining operations including but not limited to loadout
operations, coal refuse disposal operations and coal preparation
operations.'' As a result, West Virginia's rationale for the proposed
language need not be explained.
3. WVHC further stated that the proposed deletion of four of six
required findings in subsection 3.29.d that the Secretary must make
before approving an IBR is unexplained and, thus, arbitrary and
capricious. According to WVHC, the removal of these required findings
is inconsistent with SMCRA and the applicable Federal requirements.
OSMRE Response: As explained above in Finding 8, the language that
West Virginia is proposing to delete sets forth criteria that are used
by the Secretary to determine whether an IBR should be approved. In
their place, West Virginia has adopted similar criteria in new
subsection 3.29.e, as discussed in Finding 9. We are approving West
Virginia's proposal for subsection 3.29.e, with the caution that the
use of the new criteria may result in internal program inconsistency.
The Federal regulations are silent about the difference between a
significant and an insignificant IBR. However, because West Virginia
will require that significant IBRs be subject to the notice and comment
procedures applicable to significant permit revisions except as
discussed above and because the Federal regulations provide wide
discretion to the regulatory authority to establish guidelines for
determining what constitutes a significant revision, we determined that
West Virginia's proposed deletion and the remaining required findings
for IBRs at subdivision 3.29.d are as stringent as the Federal IBR
requirements in section 511(a)(3) of SMCRA and are no less effective
than either 30 CFR 774.13(d) or the permit revision requirements at 30
CFR 774.13(b)(2). In addition, we are requiring proof of advertisement
of all significant IBRs in accordance with CSR 38-2-3.2.g. and 30 CFR
778.21.
4. In addition, WVHC stated that the proposed requirement at
subsection 3.29.e, which provides that the Secretary will review each
IBR application to determine if an updated PHC determination or
cumulative hydrologic impact assessment (CHIA) is required, is
arbitrary and capricious because the proposed requirement fails to
incorporate existing reasonable, science-based criteria for making the
required determination; instead, according to WVHC this provision makes
the determination entirely discretionary with the Secretary. WVHC also
stated the proposed requirement that the Secretary determine the
significance of each IBR based only on the information provided in the
IBR application is also arbitrary and capricious. The WVHC commented
that the use of the word ``significant'' in establishing criteria for
determining the significant nature of a proposed IBR creates a circular
unenforceable definition that will effectively allow the Secretary to
dispense with public participation. According to WVHC, in the approval
of any IBR, WVDEP must establish and apply specific, reasonable, and
non-discretionary criteria for dispensing with the public participation
requirements. Finally, WVHC noted that rulemaking and IBR approvals by
WVDEP have increasingly allowed changes that are no longer incidental
but rather substantial alterations to active permits. The latest
proposal, according to the WVHC, takes that abuse one step further and
should be denied.
OSMRE Response: WVHC expresses concerns with the standards imposed
by the proposed amendment in two instances: (1) when the agency
determines whether an IBR is significant, such that public comment is
required before approving it; and (2) when the agency determines
whether an IBR requires an updated PHC or CHIA. We do not agree that
either concern demands a change in the proposed rule.
As to the first point (whether an IBR is significant), we agree
with the WVHC that use of the term ``significant'' in the proposed
amendment provides little guidance to the agency beyond applying its
technical expertise and exercising sound professional judgment in
assessing significance. But we believe the guidelines can be
implemented successfully because the agency must construe the word
``significant'' in a manner consistent with its commonly understood
meaning and in a manner that is reasonable under the factual
circumstances present. Importantly, the regulation guides the agency in
this task by identifying seven circumstances in which significance
should be considered, as set out in subsections 3.29.e.1.A through
3.29.e.1.G. WVHC construes the proposed amendment as providing that an
application is the ``only'' basis for determining significance. We do
not read the regulation to provide such an exclusive limitation. It is
incumbent upon the agency to use any available information to determine
whether an IBR is significant instead of limiting itself solely to the
information contained in the IBR application.
As to the second point (whether an updated PHC or CHIA is
required), WVHC has contended that that the absence of a standard (or
``science-based criteria'') for making the first determination required
in subsection 3.29.e (i.e., whether an updated PHC or CHIA is required
when approving an IBR) makes the proposed amendment entirely
discretionary and subject to ``agency whim.'' We agree the IBR
provision vests the agency with very broad discretion in making the
update determination, but it establishes the same authority as is
provided in the context of permit revisions. See CSR 38-2-3.28.b.1.
That subsection states, in almost identical language, that each permit
revision ``shall be reviewed . . . to determine if an [updated PHC or
CHIA] is required'', and does so, like the provision in in subsection
3.29.e, without specifying any standards. WVHC does not identify any
principle of law that prohibits a broad grant of discretionary
authority, and we are unaware of any. We further note that statutes and
regulations frequently make broad grants of authority and vest
considerable discretion in administrative agencies, just as WVDEP has
done in the case of permit revisions in subsection 3.28.b.1. The
agency, nonetheless, is not unbounded in making its update on a PHC
determination. It must apply its technical expertise and exercise sound
professional judgment, reaching a conclusion that is rational,
supported by the record, and based on a consideration of all relevant
factors.
As discussed above in Finding 9, because of the internal program
inconsistency that could result due to the change, we are approving
this part of the amendment with the understanding that West Virginia's
proposal that the criteria set forth in subsection 3.29.e for
determining whether a permit revision is significant be used only as
guidance. With this caveat, we are approving West Virginia's proposed
changes at subdivision 3.29.e when determining what constitutes a
significant and non-significant IBR. In addition, we are approving
subsection 3.29.e with the understanding that WVDEP will require proof
of publication of the advertisement for a significant IBR as required
by subdivision 3.2.g.
Therefore, our partial approval of subdivision 3.29.e is contingent
on our understanding as set forth in Finding 9.
5. WVHC also commented that the special reclamation tax of 14.4
cents per ton of prepared coal at 22-3-11(h)(1)
[[Page 55667]]
continues to be insufficient to assure the long-term viability of the
Special Reclamation Fund to provide sufficient moneys for West Virginia
to meet its reclamation responsibilities under the law.
OSMRE Response: As described in Finding 18 and in the interim rule
as published in the July 22, 2009, Federal Register (74 FR 36113), West
Virginia consolidated and increased its special reclamation and
additional taxes, into a special reclamation tax with a rate of 14.4
cents per ton of clean coal mined, reviewable every 2 years by the
Legislature, instead of annually. This statutory revision was adopted
by the Legislature and approved by the Governor upon the recommendation
of the Special Reclamation Fund Advisory Council (Advisory Council).
Subsequently, we approved in the July 11, 2012 Federal Register (77 FR
40794) an increase of the rate of the special reclamation tax to
twenty-seven and nine-tenths cents per ton of clean coal mined. This
rate increase was based on actuarial recommendations relating to the
continued fiscal viability of the Fund. The Advisory Council's purpose
is ``to ensure the effective, efficient and financially stable
operation of the special reclamation fund.'' See W.VA. Code 22-1-17.
Despite this, WVHC claims that the tax rate will be ``insufficient to
assure the long-term viability of the Special Reclamation Fund,'' but
the commenter neither offers any basis for this statement nor offers
any or data to support it, which leaves the assertion conclusory.
In addition, the law provides that the tax may not be reduced until
the Special Reclamation Fund and the Special Reclamation Water Trust
Fund have sufficient moneys to meet the reclamation responsibilities of
West Virginia established in this section. West Virginia's 2021
actuarial report, assuming a funding rate of twenty-seven and nine-
tenths cents per ton and new permits at current bond values, the
Special Reclamation Fund and the Special Reclamation Water Trust Fund
are projected to have sufficient revenue to last through 2039. Given
that land and water reclamation costs, water treatment standards, and
economic conditions are constantly changing, it is difficult to say for
certain how much money these Funds will need to assure their long-term
viability. Thus, it is a matter that West Virginia is obligated to
closely monitor. West Virginia has made significant progress in
completing land reclamation at its backlog of bond forfeiture sites,
including treating pollutional discharges at those sites that needed
it. Furthermore, as provided by 22-1-17(g), the Advisory Council is
continuing to use its technical expertise to monitor these Funds and
recommend adjustments in their revenue rates to ensure their financial
solvency. We will continue to monitor the Advisory Council's progress
in ensuring the long-term financial stability of these Funds.
6. WVHC indicated that the proposed changes in section 22-3-10 of
the West Virginia Code lend undue weight to master land use plans that
are often approved with little input from people living in small,
somewhat isolated communities in hollows where most large mining
operations occur. WVHC also stated that the proposed changes add
``renewable and alternative energy uses'' to the mix of acceptable
postmining land uses. WVHC questioned why West Virginia defined these
uses at 5B-2A-3 if they are already acceptable under State law.
OSMRE Response: As discussed in Findings 14 through 17 above, we
determined that the revised provisions are intended to require that
surface mine reclamation plans conform with master land use plans and
to authorize surface mine reclamation plans to contain alternative,
non-conforming postmining land uses under certain circumstances.
Although there are no specific requirements governing master land use
plans in SMCRA, we determined, except as discussed below, that the
proposed revisions are no less stringent than SMCRA and no less
effective than the Federal regulations.
We made this determination, in part, based on 5B-2A-9 which
provides that ``no provision of this section may be construed as
modifying the requirements of'' WVSCMRA. However, compliance with a
master land use plan, as described in the discussion of subsection
10(a)(3)(C) above, will not necessarily ensure that the approved
postmining land use will satisfy West Virginia's alternative postmining
land use and AOC variance provisions. Nothing in the master land use
plan can be inconsistent with or supersede any reclamation plan,
alternative postmining land use, or AOC variance requirements of West
Virginia's approved regulatory program.
In response to WVHC's specific comments, we agree that master land
use plans should neither be given undue weight nor supersede an
approved reclamation plan. The proposed changes have made master land
use plans a required part of the reclamation plan proposed at the
permit application or permit revision stage. WVDEP still retains
oversight over permitting actions and is still required to ensure that
the reclamation plan, including the master land use plan, complies with
WVSCMRA, including reclamation plan requirements at W.Va. Code 22-3-10
and performance standards at W.Va. Code 22-3-13. We have approved these
changes with the understanding that WVDEP will still exercise its
authority to ensure compliance of the master land use plan with
WVSCMRA, particularly regarding other requirements of the reclamation
plan, the alternative postmining land use, and the AOC variance
requirements of the approved program to ensure that WVSCMRA continues
to accord with sections 508 and 515 of SMCRA.
Federal Agency Comments
On June 17, 2009, in accordance with 30 CFR 732.17.17(h)(11)(i) and
503(b) of SMCRA, we requested comments from various Federal agencies on
West Virginia's proposed changes to its alternative bonding system
submitted by letter dated May 22, 2009 (Administrative Record No. WV
1524).
In response, OSMRE received responses from the Natural Resources
Conservation Service (NRCS), the Mine Safety and Health Administration
(MSHA), the U.S. Department of Energy (DOE), and the Bureau of Land
Management (BLM); each stated that they had no comments. See
Administrative Record No. WV 1525 (NRCS), Administrative Record No. WV
1526 (MSHA), Administrative Record No. WV 1527 (DOE), and
Administrative Record No. WV 1531 (BLM).
On October 27, 2009, we again wrote various State and Federal
agencies with an actual or potential interest in the West Virginia
program and requested comments concerning the proposed State amendments
submitted by letters dated May 11, 2009, and July 6, 2009. Those
amendments related to changes in West Virginia's surface mining
reclamation regulations and in reclamation plan requirements
(Administrative Record No. WV 1535).
NRCS, DOE, and MSHA each responded that they had no comments. See
Administrative Record No. WV 1534 (NRCS), Administrative Record No. WV
1539 (DOE), and Administrative Record No. WV 1540 (MSHA).
On December 9, 2010, we requested comments from various State and
Federal agencies on WVDEP's proposal to change the term bio-oil
cropland to bio-fuel cropland (Administrative Record No. WV 1549).
On January 7, 2011, the NRCS (Administrative Record No. WV 1551)
responded with concerns that WVDEP, in consultation with the West
Virginia Department of Agriculture, may release the performance bond
based solely upon
[[Page 55668]]
the performance of converting the land use to cropland for the purpose
of bio-fuel production. The NRCS suggested that language should be
included to allow for a postmining land use for bio-fuel cropland or
grasslands that includes adequate rotations to prevent erosion, such as
cover crops, permanent close-grown grasses, or vegetation, before bond
release.
States are required to encourage operators to establish diverse,
non-invasive native vegetative species as part of the postmining land
use of a surface mining reclamation operation. While it is West
Virginia's practice to do so, West Virginia cannot restrict the use of
non-native plants if they are grown as a bio-fuel source as long as
they are not considered invasive, toxic or noxious under State or
Federal law. Under West Virginia's approved program, operators who
choose biofuel as an alternative postmining land use will have to
demonstrate that their reclamation plans control erosion and prevent
the degradation of the soil resource and nearby water resources.
As set forth in Finding 10, West Virginia has acknowledged that
WVDEP will not authorize bio-fuel as a postmining land use on sites
requesting a mountaintop AOC variance unless the plans, financial
commitment, and construction schedule for a plant facility to convert
the cellulose, plant, or algae to bio-fuel are approved before permit
issuance and reaffirmed at the time of final bond release, and the
plant is located on-site or within a reasonable driving distance of the
area. In addition, West Virginia will require the operator to comply
with revegetation standards and use approved statistical sampling
methods for assessing revegetation success prior to approving final
bond release for any site that has a postmining land use of bio-fuel
cropland.
On January 7, 2011, the MSHA's Office of Standards, Regulations and
Variances (OSRV) (Administrative Record No. WV 1552) responded to our
request for comments on the bio-oil/bio-fuel change. The OSRV responded
that they disagree with WVDEP's statement: ``Biofuels cover a wide
range of fuels which are derived from biomass. The term covers solid
biomass while bio-oil was limited to biodiesel.'' OSRV considers bio-
oil to not be limited to biodiesel because bio-oil can be upgraded to
gasoline and aviation fuel. OSRV feels that the two terms are
interchangeable and opines that West Virginia's change was non-
substantive. In contrast, on January 14, 2011, the DOE (Administrative
Record No. WV 1553) responded to our request for comments on the bio-
oil/bio-fuel change. The DOE agreed with WVDEP that changing the term
from ``Bio-fuel'' from ``Bio-oil'' is a useful change. According to
DOE, the term bio-fuel covers a wide range of fuels derived from
biomass that includes solid biomass, liquid fuels, and gaseous fuels
such as synthetic natural gas, syngas, hydrogen, and various bio-gases
while bio-oil is limited in scope to mostly biodiesel.
It is not necessary for us to weigh in on the proper scope of the
terms ``bio-oil'' and ``bio-fuel.'' For purposes of our consideration
of this proposed amendment, because West Virginia considers bio-fuel to
be broader and covering a wider range of fuels than bio-oil, we have
considered this change to be substantive. As a result, we solicited
additional public comments.
U.S. Environmental Protection Agency (EPA) Comments
Under Federal regulations at 30 CFR 732.17(h)(11)(i) and (ii), we
are required to solicit comments and 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 (CWA) (33 U.S.C. 1251 et seq.) or the Clean Air Act (CAA) (42
U.S.C. 7401 et seq.). As we determined that none of the proposed State
revisions pertained to air or water quality standards, EPA's
concurrence was not requested. However, OSMRE solicited comments from
EPA, along with the other Federal agencies, on the three occasions
mentioned above.
On July 28, 2009 (Administrative Record No. WV 1530), the EPA
responded to our June 17, 2009, request, (Administrative Record No. WV
1524) concerning West Virginia's alternative bonding system, commonly
referred to as the Special Reclamation Fund. The EPA stated that it did
not have any specific comments/proposed edits at this time. In
addition, EPA noted that implementation of West Virginia's regulations,
including the proposed amendments, must comply with the CWA, the
regulations implementing the National Pollutant Discharge Elimination
System (NPDES), and other relevant environmental statutes and
regulations. EPA also noted that, pursuant to 30 U.S.C. 1292, SMCRA and
its implementing regulations, including WVDEP's proposed amendments, do
not supersede, modify, amend or repeal the CWA and its implementing
regulations. In other words, any discharges associated with surface
mining operations must comply with the CWA.
On June 22, 2010 (Administrative Record No. WV 1543), in response
to our letter dated October 27, 2009 (Administrative Record No. WV
1522), the EPA responded to our request for comments on proposed
revisions to West Virginia's permanent surface coal mining regulatory
program. The EPA stated that, whereas subsection 3.29.d.4, proposed for
deletion, required a finding that an IBR ``will not result in adverse
environmental impacts of a larger scope or different nature from those
described in the approved permit,'' this same criterion set forth in
proposed 3.29.e. would serve only as ``guidance'' in determining
whether an IBR is significant. EPA also stated that approval of an IBR
may ``require a major modification of the applicable NPDES permit (see
40 CFR 122.62(a)(1)) before an approved IBR could be implemented. In
addition, an IBR may encompass activities that trigger the new source
provisions of the NPDES regulations.''
In response, we note that the proposed amendment includes criteria
that are to be used as guidance by WVDEP for making a determination as
to whether an IBR is significant or insignificant. As noted above in
Finding 9, we have cautioned that West Virginia's proposal may result
in internal program inconsistency. We agree that the new IBR provisions
must be implemented in accordance with all SMCRA, CWA, and regulatory
provisions cited by the EPA. Finally, we agree that there may be
occasions when approval of an IBR may require a major modification of
the applicable NPDES permit before the IBR can be implemented, and that
an IBR may encompass activities that trigger the NPDES new source
regulations.
EPA also noted a concern that the changes to West Virginia's NPDES
Rule for Coal Mining Facilities in SB 153, 47 CSR, series 30, could
have the potential to affect water quality, citing, for instance, the
adverse water quality effects associated with the placement of valley
fills in streams; degraded water quality by alkaline mine drainage; and
impaired aquatic life.
In response, we acknowledge that decisions on changes to West
Virginia's NPDES regulations for coal mining facilities are solely
within EPA's purview.
The EPA noted its concern that, if SB 1011 is implemented in its
current form, it may have adverse water quality impacts because it
legislates a preference for postmining land use that does not encourage
consideration of environmental impacts arising from the postmining land
use and may be at odds with current science that suggests a
[[Page 55669]]
need for revised mine design to increase postmining slopes to avoid
infiltration. In addition, the bill makes no provision for any site-
specific determination about the water quality impacts associated with
a dual project purpose.
Noting that the list of renewable and alternative energy uses in SB
1011 is not all-encompassing, EPA points out that the list does not
encourage localities to consider reforestation or returning the land to
its previous natural conditions.
An operator must include a master land use plan developed by the
county or by a development or redevelopment authority and approved by
OCCD in the reclamation plan that accompanies a permit application.
Infrastructure component standards must be in place before the county
or other relevant authority can accept ownership of property donated
pursuant to a master land use plan. No provision therein may be
misconstrued as modifying the requirements of WVSCMRA.
Operators must not only develop community impact statements but
provide an acknowledgement of the recommendations of any approved
master land use plan that pertains to the land to be mined and any
infrastructure components needed to accomplish the postmining land use
required by the plan.
The EPA also indicated that SB 1011 encourages mining projects to
create flat-top lands instead of slopes, citing a growing body of
science pointing to the slope's ability to prevent infiltration and the
discharge of total dissolved solids. The effort of SB 1011, according
to the EPA, does not encourage slopes in connection with master land
use plans or their incorporation in reclamation plans and site-specific
projects, which would avoid the infiltration of the dissolved solids.
The EPA recognizes that the PHC and CHIA may partially address this
concern but notes that, historically, issues related to water budget
have been addressed more often than not.
The amendment requires that surface mine reclamation plans conform
with master land use plans and authorizes surface mine reclamation
plans to contain alternative, non-conforming postmining land uses under
certain circumstances. Revisions were approved with the understanding
that postmining land uses involving ``renewable and alternative
energy'' for mountaintop removal mining operations with variances from
AOC and in accordance with revegetative success standards provided that
they meet the regulatory requirements in SMCRA and Federal regulations
and that the plans include a financial commitment to build a bio-fuel
plant. Master land use plans and postmining land uses authorized under
this section must comply with the reclamation and other postmining land
use requirements of West Virginia's approved program.
In addition, any water quality impacts associated with such
postmining land uses are expected to be addressed in the reclamation
plans and must comply with the approved State program. However, we
agree that compliance with a master land use plan may not necessarily
ensure that the approved postmining land use will satisfy West
Virginia's alternative postmining land use and AOC variance provisions
of its approved program. Therefore, we have approved W.Va. Code 22-3-
10(a)(3)(C) with the understanding that WVDEP retains the ability to
ensure compliance of the master land use plan with WVSCMRA,
particularly regarding other requirements of the reclamation plan, the
alternative postmining land use, and the AOC variance requirements of
the approved program to ensure that WVSCMRA continues to accord with
sections 508 and 515 of SMCRA, as discussed above in Finding 17.
V. OSMRE's Decision
Based on the above findings, we partially approve, with exceptions,
West Virginia's program amendments submitted by letters dated May 11,
2009 (Administrative Record No. WV 1522), May 22, 2009 (Administrative
Record No. WV 1521), and July 6, 2009 (Administrative Record No. WV
1523).
As discussed in Finding 5, we approve West Virginia's permit
revision requirements at subparagraph 3.28.b.1 with the understanding
that WVDEP will require proof of publication of the advertisement for
permit revisions as provided by subdivision 3.2.g and 30 CFR 778.21.
As discussed in Finding 6, we approve the proposed deletion of the
IBR language regarding the abatement of a violation at subdivision
3.29.a with the understanding that the primary purpose of an IBR cannot
be to provide for coal removal. In a situation where coal removal is
intentional and the primary purpose for operations conducted outside of
the existing permit area, we expect WVDEP to require an operator to
delete acreage from the permitted area and transfer it to the
encroachment area.
As discussed in Finding 7, we do not approve the proposed IBR
revision at subparagraph 3.29.b.2 which reads, ``and other mining
operations including but not limited to loadout operations, coal refuse
disposal operations and coal preparation operations.''
As discussed in Finding 9, we approve new subsection 3.29.e with
the understanding that West Virginia will require proof of publication
of the advertisement for a significant IBR as required by subdivision
3.2.g.
As discussed in Finding 10, we approve West Virginia's bio-fuel
cropland requirements at subsection 7.8 with the understanding that
they be implemented in the manner described therein.
As discussed in Finding 17, we approve the changes to W.Va. Code
22-3-10(a)(3)(C) with the understanding that WVDEP retains the ability
to ensure compliance of the master land use plan with WVSCMRA,
particularly regarding other requirements of the reclamation plan, the
alternative postmining land use, and AOC variance requirements of the
approved program to ensure that WVSCMRA continues to accord with
sections 508 and 515 of SMCRA.
To implement this decision, we amend 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. Section 503(a)
of SMCRA requires that West Virginia's program demonstrate that West
Virginia has the capability of carrying out the provisions of the Act
and meeting its purposes. SMCRA requires consistency of State and
Federal standards.
VI. Statutory and Executive Order Review
Executive Order 12630--Government 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 and 13563--
Improving Regulation and Regulatory Review
Executive Order 12866 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
[[Page 55670]]
OMB review under Executive Order 12866.
Executive Order 13771--Reducing Regulation and Controlling Regulatory
Costs
State program amendments are not regulatory actions under Executive
Order 13771 because they are exempt from review under Executive Order
12866.
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 notice 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 West Virginia
regulatory program or 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 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 Tribal right to self-
governance and 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 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 (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 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 (NTTAA) (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 OMB 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.
Congressional Review Act
This rule is not a major rule under 5 U.S.C. 804(2). 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.
[[Page 55671]]
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.
Ben H. Owens,
Acting 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 948.12 is amended 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 proposed incidental boundary revision
(IBR) regulation clause at subparagraph 3.29.b.2 which reads, ``and
other mining operations including but not limited to loadout
operations, coal refuse disposal operations and coal preparation
operations'' that was submitted in the State program amendment dated
May 11, 2009.
* * * * *
0
3. Section 948.15 is amended by adding a new entry to the table 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
Original amendment submission publication of Citation/description
dates final rule
------------------------------------------------------------------------
* * * * * * *
May 11, 2009, May 22, 2009, December 3, 2025. CSR 38-2-3.15
July 6, 2009. (approved); 38-2-
3.28.b.1 (qualified
approval); 38-2-
3.29.a (qualified
approval); 38-2-
3.29.b.2 (not
approved); 38-2-
3.29.d. (approved);
38-2-3.29.e.
(qualified
approval); 38-2-7.8.
(qualified
approval); 38-2-
9.3.f. (approved);
38-2-11 (approved);
W.Va. Code 5B-2A-3
(approved); 5B-2A-5
(approved); 5B-2A-6
(approved); 5B-2A-9
(approved); 22-3-
10(a)(3) (qualified
approval); 22-3-11
(approved).
------------------------------------------------------------------------
[FR Doc. 2025-21782 Filed 12-2-25; 8:45 am]
BILLING CODE 4310-05-P
</pre><script data-cfasync="false" src="/cdn-cgi/scripts/5c5dd728/cloudflare-static/email-decode.min.js"></script></body>
</html>Indexed from Federal Register on December 3, 2025.
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