Rule2025-21791
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 an amendment to the West Virginia regulatory program under the Surface Mining Control and Reclamation Act of 1977 (SMCRA or the Act). This amendment makes changes to the West Virginia Code of State Rules (CSR), authorized under the West Virginia Surface Coal Mining and Reclamation Act (WVSCMRA), relating to bonding requirements for operations seeking permit renewals, topsoil, inactive status, and contemporaneous reclamation.
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 55649-55658]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2025-21791]
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 948
[SATS No. WV-124-FOR; Docket No. OSM-2016-0012; S1D1S SS08011000
SX064A000 232S180110; S2D2S SS08011000 SX064A000 23XS501520]
West Virginia Regulatory Program
AGENCY: Office of Surface Mining Reclamation and Enforcement, Interior.
ACTION: Final rule; partial approval of amendment.
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SUMMARY: We, the Office of Surface Mining Reclamation and Enforcement
(OSMRE), approve in part an amendment to the West Virginia regulatory
program under the Surface Mining Control and Reclamation Act of 1977
(SMCRA or the Act). This amendment makes changes to the West Virginia
Code of State Rules (CSR), authorized under the West Virginia Surface
Coal Mining and Reclamation Act (WVSCMRA), relating to bonding
requirements for operations seeking permit renewals, topsoil, inactive
status, and contemporaneous reclamation.
DATES: Effective January 2, 2026.
FOR FURTHER INFORMATION CONTACT: Mr. Justin Adams, Field Office
Director, Charleston Field Office, Telephone: (304) 347-7158. Email:
<a href="/cdn-cgi/l/email-protection#8fe0fce2a2ece7e9e0cfe0fce2fdeaa1e8e0f9"><span class="__cf_email__" data-cfemail="3d524e50105e555b527d524e504f58135a524b">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
I. Background on the West Virginia Program
II. Submission of the Amendment
III. OSMRE's Findings
IV. Summary and Disposition of Comments
V. OSMRE's Decision
VI. Statutory and Executive Order Reviews
I. Background on the West Virginia Program
Subject to OSMRE's oversight, 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) and (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
By letter dated June 14, 2016, and received by OSMRE on June 21,
2016 (Administrative Record No. WV-1606), the West Virginia Department
of Environmental Protection (WVDEP) submitted to us an amendment
regarding its approved regulatory program under West Virginia's Surface
Mining Reclamation Regulations at CSR title 38, series 2. This
amendment includes regulatory revisions to CSR title 38, series 2 with
the passage of Committee Substitute for House Bill 117 (H.B. 117) of
2016 (Administrative Record No. WV-1606). See 2016 W. Va. Acts ch. 5
(1st Extraordinary Session). The bill includes revisions related to
contemporaneous reclamation, inactive
[[Page 55650]]
status, topsoil, bonding requirements for permit renewals, and
incremental bonding for permit renewals.
We announced receipt of the proposed amendment in the April 3,
2019, Federal Register (84 FR 12984). In the same document, we opened
the public comment period and provided an opportunity for a public
hearing or meeting on the adequacy of the amendment. We did not hold a
public hearing or meeting because none was requested. The public
comment period ended on May 3, 2019.
III. OSMRE's Findings
We are partially approving the revisions proposed as described
below. We made the following findings concerning West Virginia's
amendment 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://Regulations.gov">Regulations.gov</a>.
The following describes the substantive regulatory revisions that
West Virginia submitted to OSMRE for approval on June 14, 2016
(Administrative Record No. WV-1606) (WV-124).
West Virginia seeks to amend several administrative regulations at
CSR 38-2-3.27 (Permit Renewals), CSR 38-2-7.6 (Forest land), CSR 38-2-
7.7 (Wildlife), CSR 38-2-11.4.a.2 (Incremental Bonding), CSR 38-2-14.3
(Topsoil), CSR 38-2-14.11 (Inactive Status), CSR 38-2-14.15
(Contemporaneous Reclamation, Backfilling and Grading, Excess Spoil
Disposal, Variance), and CSR 38-2-22.3(t)(4) (Coal Refuse--Abandonment
Plan).
1. CSR 38-2-3.27 (Permit Renewals) and CSR 38-2-11.4.a.2 (Incremental
Bonding)
West Virginia has proposed to add language to these provisions to
exempt operations that have received a waiver of the permit renewal
requirement under CSR 38-2-3.27 from the restriction at CSR 38-2-
11.4.a.2, which prohibits operators from changing between full permit
bonding and incremental bonding after their initial choice to proceed
under either system. The proposed addition also provides a process for
changing the bonding system by allowing the operation to submit a
bonding revision to the Secretary for approval.
OSMRE Finding: Subsequent to West Virginia's submission of this
amendment, West Virginia submitted an amendment that included West
Virginia Senate Bill 163 of 2018 (S.B. 163), 2018 W. Va. Acts ch. 141,
by letter dated May 2, 2018 (Administrative Record No. WV-1613-A),
which we docketed as WV-126-FOR. S.B. 163 contained various revisions
to the West Virginia CSR, including significant revisions to section
CSR 38-2-11.4 (Incremental Bonding). Among those revisions, West
Virginia deleted the restriction at CSR 38-2-11.4.a.2, which stated
``[o]nce the operator has chosen to proceed with bonding either the
entire permit area or with incremental bonding, he shall continue
bonding in that manner for the term of the permit.'' We approved those
revisions because they made the regulation substantively identical to
the Federal counterpart provision at 30 CFR 800.11. See 89 FR 19266
(Mar. 18, 2024). West Virginia's revision to CSR 38-2-11.4.a.2 under
S.B. 163 of 2018, and our subsequent approval in WV-126-FOR on March
18, 2024 (89 FR 19262), supersedes the revision addressed in this
amendment and renders it moot because it was meant to exempt certain
surface mining operations from a restriction that no longer exists.
Regarding the proposed language at CSR 38-2-3.27, neither S.B. 163
nor any subsequent amendment by West Virginia has altered this proposed
language, but it now provides an exemption to a restriction in CSR 38-
2-11.4.a.2 that no longer exists there. However, the restriction at CSR
38-2-11.4.a.2 comes almost verbatim from section 11 of WVSCMRA, W. Va.
Code 22-3-11(a), which has not been amended and still exists. When we
approved that statutory provision, we noted that Federal law does not
specifically require that the operator's initial choice to bond the
entire permit area or increments thereof be continued for the entire
term of the permit, but also that West Virginia's proposal would not
conflict with any Federal requirement. See 60 FR 51900, 51905-06 (Oct.
4, 1995). Therefore, an exemption from this restriction would also not
conflict with Federal law.
While this vestigial reference to CSR 38-2-11.4.a.2 would not make
the West Virginia program less stringent than SMCRA or less effective
than the Federal regulations, we are not making a determination on the
revision to CSR 38-2-3.27 at this time because it is unclear whether
West Virginia intends the exemption to apply to W. Va. Code 22-3-11(a)
or intends to remove it in concert with its revision to CSR 38-2-
11.4.a.2. If West Virginia wants us to approve this amendment in the
future, it should correct the reference and submit new language for our
review.
2. CSR 38-2-14.3 (Topsoil), CSR 38-2-7.6.c. (Forest Land), and CSR 38-
2-7.7.c. (Wildlife)
West Virginia seeks to revise its requirements for the postmining
land uses of forest land and wildlife, the use of topsoil relating to
soil placement, and the use of soil substitute material in sections CSR
38-2-7.6 (Forest Land), CSR 38-2-7.7 (Wildlife), and CSR 38-2-14.3
(Topsoil).
West Virginia has proposed to amend CSR 38-2-7.6.c. 7.6.d.1, 7.7.c,
7.7.d.1, 14.3.a, and 14.3.c to address conflicting uses of the terms
``topsoil,'' ``topsoil substitute,'' ``soil,'' and ``soil substitute''
that West Virginia has asserted were apparent in their review of a
Petition made to OSMRE dated June 24, 2013 pursuant to 30 CFR part 733.
Among other issues, the Petitioner alleged that WVDEP failed to
enforce the SMCRA requirement at 30 U.S.C. 1265(b)(6) that operators
``[r]estore the topsoil or best available subsoil which is best able to
support vegetation . . . .''; however, they made no allegations of
specific on-the-ground violations. To adequately evaluate the Petition,
OSMRE requested information from WVDEP. In its response to OSMRE, WVDEP
explained that the topsoil in portions of West Virginia is very thin
and that WVDEP sometimes uses its discretion to allow the use of
topsoil substitutes when an applicant has demonstrated the volume of
topsoil on the permit is insufficient to meet the mandatory depth
requirements for topsoil. See, e.g., CSR 38-2-7.6.c.3. WVDEP also
explained that a soil substitute must not only be capable of supporting
tree growth but must also provide ground cover needed to control
erosion and sedimentation leaving the site. Finally, WVDEP showed that
its topsoil replacement regulations, regulations granting variances,
and postmining land use regulations all complied with the requirements
of the approved State program in its approval of soil media in
reclamation. In our response, we found that Petitioner did not appear
to present any allegations in this section and, thus, determined
Petitioners' allegation would not be evaluated.
West Virginia has proposed three minor revisions to CSR 38-2-14.3,
including the insertion of an explicit reference to the definition of
``topsoil'' at CSR 38-2-2.128 to CSR 38-2-14.3.a (which definition is
already part of the approved State program), replacing ``Top Soil
Substitutes'' with ``Substitute material'' in the title to CSR 38-2-
14.3.c, and replacing ``resulting soil medium'' with ``resulting
substitute
[[Page 55651]]
material'' in CSR 38-2-14.3.c.2. West Virginia has also proposed two
more substantive changes. The existing first sentence of CSR 38-2-
14.3.a requires that, before disturbance of an area, topsoil will be
removed in a separate layer and either immediately redistributed or
segregated and stockpiled in a separate stable location as specified in
the preplan. West Virginia has proposed to insert, as the next
sentence, ``[p]rovided, however, if topsoil is less than 6 inches
thick, the permittee may remove the topsoil and the unconsolidated
materials immediately below the topsoil and treat the mixture as
topsoil.'' West Virginia has also proposed to begin CSR 38-2-14.3.c
with a similar, related provision: ``[w]here the topsoil is of
insufficient quantity or poor quality for supporting and maintaining
the approved postmining land use substitute material may be approved by
the Secretary.''
West Virginia has also proposed to change CSR 38-2-7.6.c.2-3 and
CSR 38-2-7.7.c.2-3 to replace instances of the word ``topsoil'' with
``soil'' and to provide for the use of soil substitutes. Even as
amended, CSR 38-2-7.6.c.2 and CSR 38-2-7.7.c.2 explicitly cross-cite to
the extensive requirements for soil substitutes at CSR 38-2-7.6.c.1 and
CSR 38-2-14.3.c. West Virginia has also proposed to remove the word
``soil'' at various places at CSR 38-2-7.6.d.l and CSR 38-2-7.7.d.1,
addressing liming and fertilizing when the soil pH is below 5.0. One
instance of the word ``soil'' remains in each provision, and taken
altogether, the regulation makes it clear that liming is required if
the soil or substitute material pH is less than 5.0.
Even with these changes, the soil or soil substitute is required to
be capable of supporting and maintaining the approved postmining land
use, its capability for such must be based on the results of
appropriate chemical and physical analysis of overburden and topsoil,
and the nutrients and soil amendments must be applied to redistributed
surface soil to support the approved postmining land use and meet
revegetation requirements.
OSMRE Finding: Neither SMCRA nor the Federal implementing
regulations define the term ``soil'' by itself. The Federal regulations
instead define ``soil horizons'' as four contrasting layers of soil
that are differentiated on the basis of field characteristics and
laboratory data. 30 CFR 701.5. The four master soil horizons, in
descending order of depth, are the A, E, B, and C horizons. Both the
Federal regulations and West Virginia's CSR define ``Topsoil'' as the A
and E soil horizon layers, while the Federal regulations add that the B
horizon is ``often called the subsoil.'' 30 CFR 701.5; CSR 38-2-2.126.
Because ``topsoil'' and ``subsoil'' are placed in specific soil
horizons, any use of the word ``soil'', without other descriptors,
could include any of the four soil horizons, singularly or in
combination.
SMCRA and its implementing regulations permit the use of topsoil
substitutes in certain circumstances. See, e.g., 30 U.S.C. 1265(b)(6)
(``or best available subsoil''); 30 CFR 816.22. The revisions that West
Virginia proposes to add to its program bring CSR 38-2-14.3 closer in
line with the Federal regulations at 30 CFR 816.22. Like West
Virginia's proposed addition to CSR 38-2-14.3.a, 30 CFR 816.22(a)(2)
provides ``[i]f topsoil is less than 6 inches thick, the operator may
remove the topsoil and the unconsolidated materials immediately below
the topsoil and treat the mixture as topsoil.'' West Virginia's
proposed addition to CSR 38-2-14.3.c. reflects 30 CFR 816.22(a)(ii) and
(b), which together allow the regulatory authority to approve the use
of select overburden materials as a substitute for, or supplement to,
existing topsoil where the topsoil is of insufficient quantity or poor
quality for sustaining vegetation. While West Virginia's proposed
addition is written to ensure supporting and maintaining the approved
postmining land use, 30 CFR 816.22 refers to sustaining vegetation.
West Virginia's regulations include paragraphs CSR 38-2-14.3.c.1 and
CSR 38-2-14.3.c.2, which require that the substitute material be
equally suitable for sustaining vegetation as the existing topsoil and
that the material is the best reasonably available in the permit area
to support vegetation. 30 CFR 816.22(b); CSR 38-2-14.3.c.1-2. We
concluded before that these provisions are ``substantively identical to
the Federal requirements.'' See 55 FR 21304, 21326 (May 23, 1990).
Nothing in West Virginia's proposed additions change that conclusion.
Because they are in accordance with SMCRA and consistent with the
Federal regulations, we approve these amendments.
3. CSR 38-2-14.11--Inactive Status
West Virginia seeks to amend CSR 38-2-14.11 (Procedures to Obtain
Inactive Status) in several areas. CSR 38-2-14.11.a.1-9 provides a list
of requirements that must be satisfied before the Secretary allows a
permittee to cease mining and reclamation operations for a period of
thirty days or more. West Virginia has proposed to change one of these
requirements at CSR 38-2-14.11.a.6, which required the permittee to
make a detailed showing ``that the cessation is necessary because of
temporary market conditions which are likely to change in the period
for which the temporarily inactive status is sought.'' West Virginia
has proposed to amend this requirement to remove references to
temporary or changing market conditions, and simply state that the
permittee must show that ``cessation is necessary due to market
conditions.''
West Virginia has proposed to delete CSR 38-2-14.11.c, which
provided for a notice and public comment period for inactive status
requests. West Virginia has also proposed to amend CSR 38-2-14.11.d to
remove a reference to the deleted public review process, delete a
provision limiting the total time granted for inactive status to three
(3) years, and delete a provision requiring the applicant to
demonstrate the need for extension due to of litigation, labor strike,
or if equipment is kept on the permit during the inactive period. With
West Virginia's revision, an extension could be granted if an applicant
shows that the extensions are necessary and that all provisions of CSR
38-2-14.11.a are satisfied.
West Virginia also has proposed to amend CSR 38-2-14.11.e and CSR
38-2-14.11.f to change the period within which inactive preparation
plants, load-out facilities, and underground mining operation must be
capable of resuming operations from sixty days to 180 days.
Furthermore, West Virginia has proposed to delete the provision at CSR
38-2-14.11.h (related to duration of inactive status for preparation
plants, load-out facilities, underground mining operations, and coal
refuse sites) that required a permittee to maintain full-cost bonding
in effect for the life of the operation, allowing instead that such
bonding will remain in effect until the permittee requests termination
of inactive status and requests a recalculation of the bond in
accordance with W. Va. Code 22-3-11, W. Va. Code 22-3-12, and CSR 38-2-
11 (Insurance and Bonding).
OSMRE Finding: Regarding the proposed change to the market
conditions showing, the Federal regulations at 30 CFR 816.131 and
817.131 require that a permittee who is seeking inactive status must
submit to the regulatory authority a notice of its intention to cease
or abandon mining and reclamation operations, include a statement of
the exact number of acres that will have been affected in the permit
area, the extent and kind of reclamation of those areas that will have
been accomplished, and identify the backfilling, regrading,
revegetation, environmental monitoring, and water treatment activities
that will continue
[[Page 55652]]
during the temporary cessation. The Federal regulations do not require
any finding from the regulatory authority that the cessation is
necessary due to market conditions, labor strike, litigation, or upon a
showing that the permittee will keep operable equipment onsite.
Regarding the proposed removal of the public notice and comment
period for inactive status applications and extension requests, while
the Federal regulations do require public review for permit
applications, significant revisions to a permit, or renewals of a
permit, they do not require public review for permittee applications
for temporary cessation of operations. 30 CFR 773.6, 816.131, and
817.131.
Regarding the proposed changes to procedures and time limits for
obtaining inactive status, the Federal regulations addressing
applications for temporary cessation of operations only require a
permittee to submit to the regulatory authority a notice that includes
a statement of the exact number of acres that will have been affected
in the permit area before such temporary cessation, the extent and kind
of reclamation of those areas which will have been accomplished, and
identification of the backfilling, regrading, revegetation,
environmental monitoring, and water treatment activities that will
continue during the temporary cessation. 30 CFR 816.131(b) and
817.131(b). West Virginia's regulations, even as amended, contain
safeguard provisions before a permittee may obtain inactive status.
These include that the site must remain in full compliance with all
standards of the program and permit, including but not limited to
contemporaneous reclamation; no outstanding violations or penalties are
allowed to exist; significant coal reserves for the mine must remain;
all disturbed acreage is bonded; and all required and necessary
backfilling, regrading, revegetation, environmental monitoring, and
water treatment activities will continue on the mine site. See CSR 38-
2-14.11.a.1-9. The proposed amendments do not alter the force or effect
of those West Virginia provisions that fulfill the minimum Federal
requirements.
Accordingly, we approve of the proposed revisions because they are
no less stringent than SMCRA and are as effective as Federal
regulations at 30 CFR 816.131 and 817.131. We also note that, while no
renumbering is apparent on the face of West Virginia's submission,
subsequent corrective renumbering to these provisions may occur without
our approval.
4. CSR 38-2-14.15--Contemporaneous Reclamation, Backfilling and
Grading, Excess Spoil Disposal, Variance
i. Time and Distance Provisions
West Virginia has proposed to revise many provisions that placed
time and distance limits on different types of mining operations. West
Virginia proposed to amend CSR 38-2-14.15.b.1, which prohibits more
than thirty-five acres of disturbed and unreclaimed acreage on an
operation consisting only of a single seam contour mining operation,
without augering, on steep or non-steep slopes. West Virginia has
proposed to strike the thirty-five acre limit. Furthermore, CSR 38-2-
14.15.b.1 continued to require that grading and backfilling shall
follow the mineral removal by a period not to exceed sixty days or a
distance of 1,500 linear feet. West Virginia has proposed to add,
``[p]roviding the provisions of 14.15.d are satisfied'', incorporating
by reference the requirements for excess spoil disposal fills.
CSR 38-2-14.15.b.2 provides that for single seam contour mining and
augering or highwall mechanical mining operations on steep or non-steep
slopes, grading and backfilling must be completed within a certain time
limit. West Virginia seeks to extend the time limit from thirty days to
180 days. West Virginia has also proposed to revise CSR 38-2-14.15.b.3,
which formerly provided that, for augering or highwall mechanical
mining operations only on steep or non-steep slopes, the grading and
backfilling must follow the augering or highwall mechanical mining by a
period not to exceed thirty days or a distance of not more than 1,000
linear feet. West Virginia has proposed to increase the time limit and
highwall length to sixty days and 1,500 linear feet respectively.
West Virginia has proposed to revise CSR 38-2-14.15.b.4 to strike a
provision that applied to all area mining operations, limiting the
maximum open pit size to 3,000 linear feet and requiring that
backfilling and grading occur within 180 days of mineral removal. West
Virginia has proposed to replace these general provisions with new
language specifying time and distance limits for single seam mining
operation as opposed to multiple seam operations. In the proposed
language, single seam area operations retain the former time and
distance limits. The proposed language would add that multiple seam
operations are limited to 3,000 feet for the initial pit with
subsequent cuts of the next underlying seam occurring within 180 days,
while backfilling and grading would be required within 180 days of
mineral removal from the lowest seam to be mined. West Virginia has
also proposed to implement these time and distance rules that
distinguish between single seam and multiple seam operations at CSR 38-
2-14.15.b.5, CSR 38-2-14.15.b.6.A, and CSR 38-2-14.15.b.6.B.2.
West Virginia has proposed to strike certain exceptions to time and
distance requirements at CSR 38-2-14.15.b.6.B.1 relating to pre-
stripping or benching on entire coal seam removal operations that use
draglines with a bucket capacity of greater than forty-five cubic
yards. CSR 38-2-14.15.b.6.B.1 prohibits pre-stripping or benching
operations from exceeding 400 acres for any single permit, and that
such cannot precede dragline operations more than twenty-four months
unless otherwise approved by the Secretary, or as necessary to satisfy
AOC+ requirements, specific postmining land use requirements, or
special materials handling facilities requirements. The proposed
changes would leave exceptions simply at the discretion of the
Secretary, striking the list of additional exceptions beginning ``or as
necessary to satisfy. . . .'' West Virginia has also proposed to strike
the final sentence of CSR 38-2-14.15.b.6.B.1, which required that all
fill construction must occur during the pre-stripping or benching phase
of the operation and be conducted in accordance with CSR 38-2-14.15.d.
Similar to the proposed changes to CSR 38-2-14.15.b.6.B.1, West
Virginia has proposed to strike the additional enumerated exceptions to
the time requirement at CSR 38-2-14.15.d.1 for the construction of
excess spoil disposal fills, which required that spoil fills cannot
have a period of inactivity exceeding 180 days unless otherwise
approved by the Secretary or certain other conditions exist. The
proposed amendment would leave such exceptions to the discretion of the
Secretary. West Virginia has also proposed to strike CSR 38-2-14.15.d.3
in its entirety. This provision required that operations that propose
excess spoil disposal fills designed with erosion protection zones must
bond the proposed fill areas based upon the maximum amount per acre
specified in W. Va. Code 22-3-12(b)(1). This would allow the amount of
bond required to be posted for such operations to be between $1,000 and
$5,000 per acre, rather than requiring bond to be set at the maximum of
$5,000 per acre.
OSMRE Finding: The Federal regulations formerly provided schedules
for backfilling and grading time and distance requirements for several
types of mining operations at 30 CFR 816.101,
[[Page 55653]]
but these have been suspended indefinitely. See 57 FR 33875 (July 31,
1992). The only remaining Federal guidance on timing is at 30 CFR
816.100 and 817.100, which state that contemporaneous reclamation
efforts, including backfilling, grading, topsoil replacement, and
revegetation must occur as contemporaneously as practicable. As a
result, neither SMCRA nor the Federal regulations provide specific time
and distance requirements for backfilling and grading, and there is no
Federal counterpart to the time and distance limits which West Virginia
has proposed to amend at CSR 38-2-14.15.b.1-4 and CSR 38-2-
14.15.b.6.B.1. Furthermore, neither SMCRA nor the Federal regulations
provide time requirements for the construction of excess spoil fills or
an inactivity period that match those at CSR 38-2-14.15.d.1 which West
Virginia has proposed to amend. As we noted in our prior approval of
CSR 38-2-14.15.d.3, which required that operations that propose excess
spoil disposal fills that are designed with erosion protection zones
must bond the proposed fill areas at a set amount, no direct Federal
counterpart of this provision exists. See 85 FR 27139 (May 7, 2020).
Because the proposed changes and deletions at CSR 38-2-14.15.b and
CSR 38-2-14.15.d will not make these regulations less stringent than
sections 515(b)(16) and (b)(22) of SMCRA (30 U.S.C. 1265(b)(16) and
(b)(22)) or less effective than the Federal regulations at 30 CFR
816.71, 816.100, and 816.102, we approve these proposed amendments.
ii. Variance
West Virginia has proposed to amend CSR 38-2-14.15.g, which
specifies that when the Secretary has approved a permit variance from
one or more standards related to the contemporaneous reclamation, the
amount of bond will be based on the maximum amount per acre specified
in W. Va. Code 22-3-12(b)(1). West Virginia has added language that
such bond shall remain in effect until the permittee requests
termination of variance and requests a recalculation of the bond.
OSMRE Finding: West Virginia law sets the minimum bond for a permit
at $10,000 and require the per acre bond to be set between $1,000 and
$5,000 dollars per acre, vesting the Secretary with substantial
discretion to choose the proper amount of bond required based on a
large number of site and operation parameters. W.Va. Code 22-3-11; CSR
38-2-11.5. SMCRA and the Federal regulations also set the minimum bond
amount for a permit at $10,000. 30 U.S.C. 1259(a); 30 CFR 800.14(b).
Neither SMCRA nor the Federal regulations provide specific per-acre
bonding fees, leaving such to the discretion of the regulatory
authority based on the site conditions and the nature of the mining
operation. 30 U.S.C. 1259(a); 30 CFR 800.14(a). SMCRA and the Federal
regulations also allow the bond amount to be adjusted upward or
downward by the regulatory authority, as affected land acreages are
increased or decreased or where the cost of future reclamation changes.
30 U.S.C. 1259(e); 30 CFR 800.15. We find that the proposed revision,
allowing recalculation of the bond at the termination of a variance, is
no less effective than the Federal provisions at 30 CFR 800.11, and no
less stringent than section 509 of SMCRA (30 U.S.C. 1259). Therefore,
we approve this amendment.
5. CSR 38-2-22.3.t.4--Coal Refuse--Abandonment Plan
CSR 38-2-22.3.t.4 states ``[a]t abandonment, all fine refuse in the
impoundment pool shall be covered with a minimum three foot layer of
coarse refuse or other fill material prior to topsoiling unless
otherwise approved by the Secretary.'' West Virginia has proposed to
replace the phrase ``prior to topsoiling'' with the phrase ``prior to
being covered with the non-toxic and non-combustible material.'' This
material is described in further detail at CSR 38-2-22.3.t.5. This
revision is related to the foregoing amendments addressing terminology
differences between ``topsoil'', ``soil'', and ``soil substitutes''.
OSMRE Finding: Neither SMCRA nor the Federal regulations at 30 CFR
780.25(c)-(e), 784.16(c)-(e), 816/817.81, 816/817.83, and 816/817.84,
which relate to coal processing waste banks, dams, embankments, and
impoundments, specify any type of soil or material that should be used
for the coarse refuse layer covering fine refuse in an impoundment
pool. We approve of the proposed revision regarding coal refuse
disposal abandonment plans because we find that it is no less stringent
than sections 515(b)(5), (11), (13), and (f) of SMCRA (30 U.S.C.
1265(b)(5), (11), (13), and (f)) and no less effective than the Federal
regulations at 30 CFR 780.25(c)-(e), 784.16(c)-(e), 816.81, 817.81,
816.83, 817.83, 816.84, and 817.84.
IV. Summary and Disposition of Comments
Public Comments
We asked for public comments (Administrative Record No. 1616) on
the amendment (Document ID No. OSM-2016-0012). None were submitted.
Federal Agency Comments
On April 5, 2019 (Administrative Record No. 1616), under 30 CFR
732.17(h)(11)(i) and section 503(b) of SMCRA, we requested comments on
the amendment from various Federal agencies with an actual or potential
interest in the West Virginia program. We received comments from one
agency.
By letter dated April 26, 2019 (Administrative Record No. 1625),
the United States Forest Service (USFS) within the Department of
Agriculture responded with a list of thirty-three (33) comments, which
we have summarized, grouped, and addressed in the following 11 general
comments.
Comment 1: USFS commented on CSR 38-2-7.6.c.2 as follows. The term
`topsoil' refers to a specific type of soil that has a nutrient status
to support seedbed establishment. Topsoil specifically refers to soils
that are higher in organic matter and often available nutrients as
opposed to subsoil. Also, topsoil has a specific legal definition as
defined by the USDA with regard to soil designated as Prime Farmland
and other special designations such as hydric soils. It is highly
recommended to not leave root balls in the soil or soil substitute.
Once this organic material decomposes, it will leave a depression on
the surface which on slopes could become instability concerns. It is
recommended to only leave them on the soils. Leaving them on the soils
will increase organic matter of the soil or soil substitute and also
aid in sediment/erosion retention.
OSMRE Response: As explained in more detail in our finding in
section III.2, neither SMCRA nor the Federal implementing regulations
define the term ``soil'' by itself; instead, the Federal regulations
instead define ``soil horizons'' as four contrasting layers of soil
that are differentiated on the basis of field characteristics and
laboratory data. 30 CFR 701.5.
West Virginia's proposed revisions bring CSR 38-2-14.3 closer in
line with the Federal regulations at 30 CFR 816.22, which permit the
use of topsoil substitutes. Like West Virginia's proposed addition to
CSR 38-2-14.3.a, 30 CFR 816.22(a)(2) provides ``[i]f topsoil is less
than 6 inches thick, the operator may remove the topsoil and the
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unconsolidated materials immediately below the topsoil and treat the
mixture as topsoil.'' West Virginia's proposed addition to CSR 38-2-
14.3.c. reflects 30 CFR 816.22(a)(ii) and (b), which together allow the
regulatory authority to approve the use of select overburden materials
as a substitute for, or supplement to, existing topsoil where the
topsoil is of insufficient quantity or poor quality for sustaining
vegetation. West Virginia's regulations include subsections CSR 38-2-
14.3.c.1 and CSR 38-2-14.3.c.2, which require that the substitute
material be equally suitable for sustaining vegetation as the existing
topsoil, and that the material is the best reasonably available in the
permit area to support vegetation. 30 CFR 816.22(b); CSR 38-2-14.3.c.1-
2.
Substitute materials usually have adequate nutritional value but
lack organic matter and a seed pool. The topsoil/soil substitute
process under CSR 38-2-14.3.c requires comparing the chemical and
physical analysis of proposed substitute materials to the existing
soil. Substitutes are selected based on nutrient analyses and the
ability to meet the proposed postmining land use. Also, by allowing the
removal of subsoil with the topsoil under the proposed changes to CSR
38-2-14.3.a, most of the seed pool and organic matter will be captured
and redistributed. Incorporating root balls in and on the surface adds
organic matter, helps salvage the seed pool, and creates perches for
birds to further distribute seeds.
Regarding USFS's comment that root balls left in the soil could
decompose and cause instability issues on slopes, we have discovered
that salvaging and redistributing the organic matter, including root
balls, the topsoil, and the subsoil, all in one process is more
efficient to the operator than salvaging and redistributing these
materials in separate steps. It also helps minimize the compaction of
the growth medium by reducing the number of times the operator must
pass over the growth medium with heavy equipment to redistribute these
materials. West Virginia has salvaged and redistributed organic matter,
including root balls during the reclamation process for the last 15
years, and no stability issues have resulted from this practice. When
the root balls buried in the growth medium decompose, it could also
create an undulating feature to the surface, which would mimic a more
natural condition.
While we appreciate the explanation and concerns raised by the
USFS, as explained above, the amendment as proposed is in accordance
with SMCRA and consistent with the Federal regulations. Thus, as
explained above, we are approving the amendment.
Comment 2: USFS commented on CSR 38-2-7.6.d, stating that, if the
desired postmining land use is tree establishment or grass/herbaceous
cover, soil medium, whether that be native topsoil/subsoil or
alternative soil-like material, ``soil'' instead of crushed rock will
be necessary for the success of revegetation. It is suggested to leave
the word ``soil'' or include ``soil or soil substitute pH.'' It is also
recommended that soil tests be taken and sent to a lab for fertilizer/
lime recommendations.
OSMRE Response: Topsoil substitutes have been used for decades in
West Virginia for forestland, wildlife habitat, and other postmining
land uses that require the establishment of trees with good results.
The resulting growth medium is more than just crushed rock.
Furthermore, the proposed changes to CSR 38-2-7.6.c.2 require that
``the use of soil substitutes may be approved by the Secretary
providing the applicant demonstrates: the volume of soil on the permit
area is insufficient to meet the depth requirements of 7.6.c.l, the
substitute material consists of at least 75% sandstone, has a composite
paste pH between 5.0 and 7.5, has a soluble salt level of less than 1.0
mmhos/cm, and is in accordance with 14.3.c.'' The requirements at CSR
38-2-14.3.c provide many requirements for the quality of substitute
material, including that such must be capable of supporting and
maintaining the approved postmining land use, that this determination
be based on the results of appropriate chemical and physical analysis
of overburden and topsoil, that such analyses include at a minimum
depth, thickness, and areal extent of the substitute structure or soil
horizon, pH, texture class, percent coarse fragments and nutrient
content, and that there is a certification of this analysis made by a
qualified laboratory.
The growth medium is described by the plan preparer, a registered
professional forester for permits with a forestland postmining land use
or a biologist employed by the West Virginia Division of Natural
Resources for permits with a wildlife postmining land use. The
resulting growth medium is usually a mixture of substitute material
(crushed rock), pre-mining native soil (subsoil and as much topsoil as
possible), and organic material. Standards for success under CSR 38-2-
7.6.f for forestland, and CSR 38-2-7.7.f for wildlife, also mandate the
number of live trees per acre and percent of ground cover for bond
release.
With the requirements of the planting plan preparer under CSR 38-2-
7.6.b.1.A and CSR 38-2-7.7.b.1.A, the soil substitutes requirements of
CSR 38-2-7.6.c and CSR 38-2-7.7.c, the standards of success of CSR 38-
2-7.6.f and CSR 38-2-7.7.f, and the certification process under CSR 38-
2-14.3.c, the resulting growth medium should never be just crushed
rock.
We can infer that the pH is referring to the soil or soil
substitutes in CSR 38-2-7.6.d.l and in CSR 38-2-7.7.d.1 from context.
The term soil appears to have been removed to clarify its application
to substitutes in addition to topsoil or subsoil.
Soil testing for lime and fertilizer is required at CSR 38-2-
14.3.d: ``[n]utrients and soil amendments in the amounts determined by
soil tests shall be applied to the redistributed surface soil layer so
that it supports the approved postmining land use and meets the
revegetation requirements of section 9 of this rule. These tests shall
include nutrient analysis and lime requirement tests. Results of these
tests shall be submitted to the Secretary with the final planting
report as required by this rule.'' These soil tests are usually taken
by the operator before hydroseeding the lime, fertilizer, and seed all
in one process. The substitute process also requires testing of the
soil and the proposed substitutes. Acid-base accounting is also
required on all rock layers in the mineral removal area. Also, the
planting plan at CSR 38-2-9.2.g.2 requires that ``[t]he proposed
treatment to neutralize acidity'' be applied, and at CSR 38-2-9.2.g.4
``[t]he application rates and analysis of fertilization'' be noted.
We appreciate the comment, but we do not agree that retaining the
word ``soil'' or replacing it with ``soil or soil substitute pH'' is
necessary for this portion of West Virginia's program to be in
accordance with SMCRA and consistent with the Federal regulations. As
proposed, West Virginia's proposal complies with both 30 CFR 816.22 and
CSR 38-2-14.3. We also do not agree that soil tests be taken and sent
to a lab for fertilizer/lime recommendations in this amendment because
the requirement for soil tests to be taken and sent to a lab for
fertilizer/lime recommendations is already addressed under 30 CFR
816.22, CSR 38-2-14.3, and CSR 38-2-9.2.i.1, and this amendment does
not change that requirement.
Comment 3: USFS commented on CSR 38-2-7.7.d.2, suggesting that this
language become the primary requirement instead of providing the
[[Page 55655]]
minimum/maximum rates and then providing this as the secondary option.
OSMRE Response: We value USFS's suggestion, but, in approving
program amendments, we can only consider the submissions of the State,
and West Virginia did not submit any proposed changes to CSR 38-2-
7.7.d.2. Thus, we are not making any changes as a result of this
comment.
Comment 4: USFS suggested the addition of this language:
``Fertilizer and lime rates will be based on soil testing performed by
State certified laboratories.''
OSMRE Response: Under West Virginia's program at CSR 38-2-14.3.d,
soil tests, including nutrient analysis and lime requirement tests,
must be performed and submitted to the State. Likewise, under CSR 38-2-
9.2.g.2, the planting plan must contain a statement on how to treat to
neutralize acidity. CSR 38-2-7.6.d.1 requires specific liming
requirements for a postmining land use of forestland. This standard
must be clearly stated in the permit application (planting plan) and is
based on past performance. Alternate rates are available, if stated in
the planting plan and based on the revegetation species. While we
appreciate USFS's suggestion, because this portion of the West Virginia
program, as amended, is in accordance with SMCRA and consistent with
the Federal regulations, we are not making any changes.
Comment 5: USFS commented on CSR 38-7.7.e, regarding revegetation
and seeding methods that provide initial seeding, which includes a
mixture of erosion control species and natives, and then a subsequent
seeding with the desired native species.
OSMRE Response: While we applaud the use of native species, we are
concerned with requiring native species in the temporary seed mixtures,
permanent seed mixtures, and tree and shrub mixtures. The provision at
CSR 38-2-7.7.e.l requires that ``cover shall consist of a combination
of native and domesticated non-competitive and non-invasive cool and
warm species grasses and other herbaceous vine or shrub species
including legume species and shrubs.'' Most ground covers are
established by hydroseeding seed, lime, and fertilizer all in one
process. Surface mining permits can cover a very large area, so it is
important to complete this process as efficiently as possible. Rarely
will the entire mine area be hydroseeded more than once, so the erosion
control species should be included with the desired native ground
covers. The cost and availability of native seed must also be
considered, especially on this scale. Flexibility must be allowed in
the species mix to match the site-specific conditions over the entire
State. Therefore, we are not making any changes to our decision as a
result of this comment.
Comment 6: USFS commented on CSR 38-2-14.3.a stating that it
recommends changing the provision to read as follows:
Provided, however, if the topsoil is less than 6 inches thick,
the permittee may remove a general 6 inches of the surface material
to stockpile separately and then remove the remaining subsoil
material to stockpile separately. During redistribution, the
``subsoil'' stockpile will be redistributed first, followed by the
``topsoil'' stockpile. Stockpiled topsoil and subsoil shall remain
in place until . . .
USFS added that it is not recommended to allow topsoil to be mixed
with full subsoil plus unconsolidated rock material because it will
make nutrients, organic material, and microbes that are beneficial for
the planting medium unavailable for plant uptake during reclamation.
Even though ``topsoil'' may be less than 6 inches, the benefits of
topsoil, (organic matter, microbiological component, available plant
nutrients, etc.) even if the horizon is 1-2 inches, are important and
necessary for successful reclamation. USFS recommended that CSR 38-2-
14.3 specifies a depth of material that may be removed and included
below the topsoil.
OSMRE Response: We agree with the USFS that topsoil is extremely
important for reforestation purposes. However, it is extremely
difficult to salvage and redistribute a thin layer of topsoil on the
steep slopes of southern West Virginia for reforestation purposes.
Stripping and redistributing this material along with the subsoil and/
or weathered sandstone just below the topsoil has proven very
effective. Stripping and redistributing this material in one step are
also more efficient for the operator and reduce the number of times the
operator must pass over the growth medium, minimizing the compaction of
this material. Stockpiling of topsoil can also be detrimental to the
biota. We encourage stripping of this material and immediately
redistributing the material in the contemporaneous reclamation.
The West Virginia State program is consistent with this practice
and that espoused in the Forestry Reclamation Approach (FRA) as
advocated by the Appalachian Regional Reforestation Initiative (ARRI),
which recommends a four-foot-thick growth medium comprised of topsoil,
soil, or the best available material. The FRA provides that mixing
these materials provides an excellent growth medium for reforestation
purposes. Topsoil provides organic material, biota, and a seed pool.
Subsoil provides fines for moisture retention. Substitute materials
such as weathered and unweathered sandstone provides pore space, which
allows for aeration, root penetration, and infiltration of water, and
mimics a more natural soil surface for reforestation purposes than
using just soil. Mixing these materials has proven very effective for
mine land reforestation plan to avoid stockpiling.
Likewise, the West Virginia program at CSR 38-2-7.6.c.1 and
7.7.c.1, states that ``[e]xcept for valley fill faces, soil or soil
substitutes shall be redistributed in a uniform thickness of at least
four feet across the mine area.'' Thus, the West Virginia State program
ensures that enough soil and soil substitutes will be stripped and
redistributed to meet the requirements of SMCRA. Therefore, we are
making no changes to our approval of this portion of the program
amendment as a result of this comment.
Comment 7: USFS commented on CSR 38-2-14.3.c. that the term
``topsoil'' should be replaced with the term ``Soil Substitute
Material''.
OSMRE Response: While we recognize that West Virginia's program
could have been clearer, we note that the proposed title of subsection
c of CSR 38-2-14.3, ``Substitutes material,'' appears within section
CSR 38-2-14.3, which is entitled ``Topsoil.'' This structure provides
some clarity for a reader to understand that this section refers to
soil substitutes in general. Thus, whatever potential ambiguity that
there may be, we do not find it rises to the level for us to deny this
portion of the program amendment proposed by West Virginia.
Comment 8: USFS commented on subsection 14.3.c. to recommend that
West Virginia use the suggested language: ``This determination of
capability shall be based on the results of appropriate chemical and
physical analysis of overburden and topsoil material. An analysis of
overburden material shall include at a minimum depth, thickness, pH,
geochemical analysis, and areal extent of the material wanting to be
used as substitute. An analysis of substitute topsoil material shall
include at a minimum pH, texture, structure, percent coarse fragments,
and nutrient content. A certification for all analyses for desired
substitute material shall be made by a qualified laboratory stating
such.''
OSMRE Response: Although we believe the process contained in West
Virginia's program as part of the soil analyses required in the pre-
mining
[[Page 55656]]
native soil inventory at CSR 38-2-7.6.b.1.A.1 and in the substitute
process under CSR 38-2-14.3.c captures the geochemical analyses
recommended in the USDA comment, we recommend that West Virginia
consider the USFS comment if it makes future revisions to this aspect
of its State program. However, this comment does not indicate that the
current West Virginia program is not in accordance with SMCRA or
inconsistent with the Federal regulations; thus, we still approving
this portion of the amendment as proposed by West Virginia.
Comment 9: The USFS recommended that West Virginia change the
language of CSR 38-2-14.3.c.l. The USDA also stated that if the
permittee is proposing substitute material due to insufficient
quantity, but acceptable quality, the proposed substitute material
should be of equal or greater suitability for sustaining vegetation and
existing topsoil. If the permittee is proposing substitute material due
to sufficient quantity, but poor quality, the proposed substitute
material should be suitable for sustaining vegetation and the intended
postmining land use designation;''
OSMRE Response: CSR 38-2-14.3.c.l requires that the proposed
substitute material is equally suitable for sustaining vegetation as
the existing topsoil. We recognize that the language that USFS is
proposing could be a good alternative, but, as proposed by West
Virginia, this program amendment is consistent with 30 CFR 816.22;
therefore, we are approving this part of West Virginia's program as
proposed.
Comment 10: USFS suggested that the following statement be added to
CSR 38-2-14.3.c.3: ``The analyses were conducted using standard testing
procedures. These methodologies along with the QA/QC will be included
in a final report along with the results of the analyses.''
OSMRE Response: While we understand the point USFS is making with
this proposed addition, such a requirement is not necessary for the
amendment to be in accordance with SMCRA and consistent with the
Federal regulation.
Comment 11: USFS commented on CSR 38-2-22.3.t.4, suggesting that
changing the term ``top soiling'' to ``being covered with the non-toxic
and non-combustible material'' is overly inclusive of potential
material. The USFS recommends consistency with the rewording used
previously in the document for topsoiling, such as ``soil or suitable
soil substitute.''
OSMRE Response: While we understand the concern of the USFS, West
Virginia's proposal is in accordance with SMCRA and consistent with the
Federal regulations and we are approving this part of West Virginia's
as proposed. We also note that, at abandonment, all fine refuse in the
impoundment pool must be covered with a minimum three-foot layer of
coarse refuse or other fill material before being covered with the non-
toxic and non-combustible material unless otherwise approved by the
Secretary. Replacing the term ``topsoil'' with the phrase ``being
covered with the non-toxic and non-combustible material'' will make the
language more consistent with other provisions of the rule. This cover
is intended as a growth medium but concerns over the chemistry and
combustibility of this material are paramount.
Environmental Protection Agency (EPA) Concurrence and Comments
Under 30 CFR 732.17(h)(11)(ii), we are required to get a written
concurrence from EPA for those provisions of the program amendment that
relate to air or water quality standards issued under the authority of
the Clean Water Act (33 U.S.C. 1251 et seq.) or the Clean Air Act (42
U.S.C. 7401 et seq.). OSMRE determined that none of the proposed State
revisions pertain to air or water quality standards. Therefore, we did
not ask EPA to concur on the amendment. However, on April 5, 2019,
under 30 CFR 732.17(h)(11)(i), we requested comments from the EPA on
the amendment (Administrative Record No. 1616). The EPA did not respond
to our request.
State Historical Preservation Officer (SHPO) and the Advisory Council
on Historic Preservation (ACHP)
Under 30 CFR 732.17(h)(4), we are required to request comments from
the SHPO and ACHP on amendments that may have an effect on historic
properties. On April 5, 2019, we requested comments on West Virginia's
amendment (Administrative Record No. 1616). We did not receive comments
from the SHPO or ACHP.
V. OSMRE's Decision
Based on the above findings, we are approving in part the amendment
(WV-124) that West Virginia submitted on June 14, 2016 (Administrative
Record WV-1606). In particular, we are approving the proposed
amendments to CSR 38-2-7.6.c-d (Forest land), CSR 38-2-7.7.c-d
(Wildlife), CSR 38-2-14.3 (Topsoil), CSR 38-2-14.11 (Inactive Status),
CSR 38-2-14.15.b.1 through CSR 38-2-14.15.b.6.B.2 (Contemporaneous
Reclamation, Backfilling and Grading), CSR 38-2-14.15.d.1-3 (Excess
Spoil Disposal), CSR 38-2-14.15.g (Variance), and CSR 38-2-22.3(t)(4)
(Coal Refuse--Abandonment Plan). We are making no determination about
CSR 38-2-3.27 (Permit Renewals) because it is moot. We are also making
no determination about CSR 38-2-11.4.a.2 (Incremental Bonding) because
the proposed amendment contains an apparent reference to an obsolete
provision that must be corrected or clarified before we can review.
To implement this decision, we are amending the Federal
regulations, at 30 CFR part 948, which codify decisions concerning the
West Virginia program. In accordance with the Administrative Procedure
Act (5 U.S.C. 533), this rule will take effect 30 days after the date
of publication. Section 503(a) of SMCRA (30 U.S.C. 1253(a)) requires
that the State's program demonstrate that the State 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 Reviews
Executive Order 12630--Governmental Actions and Interference With
Constitutionally Protected Property Rights
This rule would not result in 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 Order 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 (OMB Memo M-94-3), the approval of State program amendments is
exempted from OMB 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 document meets the criteria of section 3 of
Executive Order
[[Page 55657]]
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 most of
an amendment to the West Virginia program submitted and drafted by the
State except for certain provisions that we deem to be moot as
explained in our finding at section III.1 above. Thus, our approval of
this rule is consistent with the direction to provide maximum
administrative discretion to States.
Executive Order 13175--Consultation and Coordination With Indian Tribal
Governments
The Department of the Interior strives to strengthen its
government-to-government relationship with Tribes through a commitment
to consultation with Tribes and recognition of their right to self-
governance and Tribal sovereignty. We have evaluated this rule under
the Department's consultation policy and under the criteria in
Executive Order 13175 and have determined that it has no substantial
direct effects on the distribution of power and responsibilities
between the Federal Government and Tribes.
The basis for this determination is that our decision on the West
Virginia program does not include Indian lands as defined by SMCRA or
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
significant energy action under the definition in Executive Order
13211, a statement of energy effects is not required.
Executive Order 14192--Unleashing Prosperity Through Deregulation
State program amendments are not regulatory actions under Executive
Order 14192 because they are exempt from review under Executive Order
12866 (OMB Memo M-94-3).
National Environmental Policy Act
Consistent with sections 501(a) and 702(d) of SMCRA (30 U.S.C.
1251(a) and 1292(d), respectively) and the U.S. Department of the
Interior Departmental Manual, part 516, section 13.5(A), State program
amendments are not major Federal actions within the meaning of section
102(2)(C) of the National Environmental Policy Act (42 U.S.C.
4332(2)(C).
Paperwork Reduction Act
This rule does not include requests and requirements of an
individual, partnership, or corporation to obtain information and
report it to a Federal agency. As this rule does not contain
information collection requirements, a submission to the Office of
Management and Budget under the Paperwork Reduction Act (44 U.S.C. 3501
et seq.) is not required.
Regulatory Flexibility Act
This rule will not have a significant economic impact on a
substantial number of small entities under the Regulatory Flexibility
Act (5 U.S.C. 601 et seq.). The State submittal, which is the subject
of this rule, is based upon corresponding Federal regulations for which
an economic analysis was prepared, and certification made that such
regulations would not have a significant economic effect upon a
substantial number of small entities. In making the determination as to
whether this rule would have a significant economic impact, the
Department relied upon the data and assumptions for the corresponding
Federal regulations.
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.
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. In Sec. 948.15 amended the table by adding a new entry in
chronological
[[Page 55658]]
order by ``Date of final publication'' to read as follows:
Sec. 948.15 Approval of West Virginia regulatory program amendments.
* * * * *
----------------------------------------------------------------------------------------------------------------
Original amendment submission date Date of final publication Citation/description
----------------------------------------------------------------------------------------------------------------
* * * * * * *
June 14, 2016........................... December 3, 2025........... CSR 38-2-3.27 (no determination); CSR 38-
2-11.4.a.2 (moot, no determination); CSR
38-2-7.6.c.2-3 (approved); CSR 38-2-
7.6.d.1 (approved); CSR 38-2-7.7.c.2-3
(approved); CSR 38-2-7.7.d.1 (approved);
CSR 38-2-14.3 (approved); CSR 38-2-14.11
(approved); CSR 38-2-14.15.b.1 through
CSR 38-2-14.15.b.6.b.2 (approved); CSR
38-2-14.15.d.1-3 (approved); CSR 38-2-
14.15.g (approved); CSR 38-2-22.3(t)(4)
(approved).
----------------------------------------------------------------------------------------------------------------
[FR Doc. 2025-21791 Filed 12-2-25; 8:45 am]
BILLING CODE 4310-05-P
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