West Virginia Regulatory Program

<RULE> DEPARTMENT OF THE INTERIOR <SUBAGY>Office of Surface Mining Reclamation and Enforcement</SUBAGY> <CFR>30 CFR Part 948</CFR> <DEPDOC>[SATS No. WV-125-FOR; Docket ID: OSMRE-2017-0003 S1D1S SS08011000 SX064A000 2340S180110; S2D2S SS08011000 SX064A000 23XS501520]</DEPDOC> <SUBJECT>West Virginia Regulatory Program</SUBJECT> <HD SOURCE="HED">AGENCY:</HD> Office of Surface Mining Reclamation and Enforcement, Interior. <HD SOURCE="HED">ACTION:</HD> Final rule; approval of amendment with deferral. <SUM> <HD SOURCE="HED">SUMMARY:</HD> We, the Office of Surface Mining Reclamation and Enforcement (OSMRE), are approving, with one deferral, an amendment to the West Virginia statutory program under the Surface Mining Control and Reclamation Act of 1977 (SMCRA or the Act). The amendment revises the West Virginia Surface Coal Mining and Reclamation Act (WVSCMRA) as contained in Senate Bill 687 of 2017. These revisions modify the WVSCMRA requirements related to the release of bonds and provisions related to the use of money from the Special Reclamation Water Trust Fund. We are deferring our decision on the removal of provisions pertaining to the long-range planning process for the selection and prioritization of sites to be reclaimed. </SUM> <EFFDATE> <HD SOURCE="HED">DATE:</HD> This rule is effective February 12, 2024. </EFFDATE> <FURINF> <HD SOURCE="HED">FOR FURTHER INFORMATION CONTACT:</HD> Mr. Michael Castle, Acting Field Office Director, Charleston Field Office, Telephone: (859) 260-3900. Email: <E T="03">osm-chfo@osmre.gov.</E> </FURINF> <SUPLINF> <HD SOURCE="HED">SUPPLEMENTARY INFORMATION:</HD> <EXTRACT> <FP SOURCE="FP-2">I. Background on the West Virginia Program</FP> <FP SOURCE="FP-2">II. Submission of the Amendment</FP> <FP SOURCE="FP-2">III. OSMRE's Findings</FP> <FP SOURCE="FP-2">IV. Summary and Disposition of Comments</FP> <FP SOURCE="FP-2">V. OSMRE's Decision</FP> <FP SOURCE="FP-2">VI. Statutory and Executive Order Reviews</FP> </EXTRACT> <HD SOURCE="HD1">I. Background on the West Virginia Program</HD> Subject to OSMRE's oversight, SMCRA section 503(a) permits a State to assume primacy for the regulation of surface coal mining and reclamation operations on non-Federal and non-Indian lands within its borders by demonstrating that its program includes, among other things, State laws and regulations that govern surface coal mining and reclamation operations in accordance with the Act and consistent with the Federal regulations. <E T="03">See</E> 30 U.S.C. 1253(a)(1) and (7). On the basis of these criteria, the Secretary of the Interior conditionally approved the West Virginia program on January 21, 1981. You can find background information on the West Virginia program, including the Secretary's findings, the disposition of comments, and conditions of approval of the West Virginia program in the January 21, 1981, <E T="04">Federal Register</E> (46 FR 5915). You can also find later actions concerning the West Virginia program and program amendments at 30 CFR 948.10, 948.12, 948.13, 948.15, and 948.16. <HD SOURCE="HD1">II. Submission of the Amendment</HD> By letter dated May 3, 2017 (Administrative Record No. 1608), and received by us on May 15, 2017, the West Virginia Department of Environmental Protection (WVDEP) submitted an amendment to its program under SMCRA, docketed as WV-125-FOR. The proposed amendment consists of statutory revisions to WVSCMRA contained in Senate Bill 687 of 2017 (S.B. 687) (approved April 26, 2017). <E T="03">See</E> 2017 W.Va. Acts ch. 86. Through S.B. 687, West Virginia seeks to revise statutory provisions related to the release of bonds and the use of money from the Special Reclamation Water Trust Fund to assure a reliable source of capital and operating expenses for the treatment of discharges from bond-forfeited sites. West Virginia also seeks to revise and reorganize the bond release requirements specific to when the different phases of a bond can be released and under what circumstances; it also preserves the requirement that no bond will be released until all reclamation requirements are met. We announced receipt of the proposed amendment in the April 8, 2019, <E T="04">Federal Register</E> (84 FR 13853) (Administrative Record No. 1617). In the same notice, we opened a public comment period and provided an opportunity for a public hearing on these provisions. The public comment period closed on May 8, 2019. We did not hold a public hearing or meeting because one was not requested. Letters were sent to various Federal agencies requesting comments (Administrative Record No. 1618), but none were received. For clarification, the summary of the April 8, 2019, proposed rule notice also unintentionally mentions revisions to pre-blasting and blasting requirements as being a part of this amendment. West Virginia had submitted other amendments to its blasting regulations that we had not yet addressed; therefore, in order to keep all changes to the blasting regulations together, we consolidated them into a separate amendment, which can be viewed at <E T="03">www.regulations.gov</E> by searching the Docket ID Number OSM-2016-0010-0002, or SATS No. WV-123-FOR. <HD SOURCE="HD1">III. OSMRE's Findings</HD> We are approving, with one deferral, the revisions proposed in WV-125-FOR as described below. The following are findings concerning West Virginia's amendment under SMCRA and the Federal regulations at 30 CFR 732.15 and 732.17. Any revisions that we do not specifically discuss below concerning non-substantive wording or editorial changes can be found in the full text of the program amendment available at <E T="03">www.regulations.gov,</E> searchable by the Docket ID Number referenced at the top of this notice. The following describes the substantive statutory revisions that WVDEP submitted to OSMRE for approval on May 3, 2017 (Administrative Record No. WV-1608). <E T="03">1. W. Va. Code 22-3-11(g)(1)—Bonds; amount and method of bonding; bonding requirements; special reclamation tax and funds; prohibited acts; period of bond liability.</E> West Virginia seeks to revise W. Va. Code 22-3-11(g)(1) to specify that moneys in the Special Reclamation Water Trust Fund are to be used to assure a reliable source of capital and operating expenses for the treatment of water discharges from forfeited sites where the WVDEP Secretary has obtained or applied for a National Pollutant Discharge Elimination System (NPDES) permit as of the effective date of WVSCMRA. The existing provision states only that the funds assure “a reliable source of capital to reclaim and restore water treatment systems on forfeited sites.” <E T="03">OSMRE's Findings:</E> The West Virginia alternative bonding system was conditionally approved by the Secretary on January 21, 1981 (46 FR 5915), and the condition of the approval was removed on March 1, 1983 (48 FR 8448). This approval was granted under section 509(c) of SMCRA, 30 U.S.C. 1259(c), which allows for the approval of an alternative bonding system that will achieve the objectives and purposes of section 509. In drafting section 509(c), Congress was not specific in prescribing how alternative bonding programs should be financed. The relevant analysis is whether the proposed alternative bonding system achieves the objectives and purposes of a conventional bonding system as expressed in section 509 of SMCRA and as implemented by 30 CFR 800.11(e). In the May 7, 2020, <E T="04">Federal Register</E> (85 FR 27139), we approved on a permanent basis revisions to W. Va. Code 22-3-11(g) made by West Virginia in 2008 that added language to provide that the Special Reclamation Water Trust Fund was created within the State Treasury, into and from which moneys would be paid for the purpose of assuring a reliable source of capital to reclaim and restore water treatment systems on forfeited sites. Previously, the expenditure for water treatment systems was limited to fees collected under the Special Reclamation Fund. The revisions West Virginia proposes through S.B. 687 clarify that in addition to assuring sufficient funds to cover capital costs, which generally relate to the construction of water treatment systems, the funds must also be sufficient to cover those systems' operating expenses. Both capital and operating costs must be accounted for to ensure compliance with the requirement in 30 CFR 800.11(e)(1) that the State have sufficient money to complete reclamation for any areas that may be in default at any time. In our 2020 approval, we made special mention of other language in this provision, which West Virginia now proposes to delete, that both funds are “for the purpose of designing, constructing, and maintaining water treatment systems.” <E T="03">See</E> 85 FR at 27152. The proposed text stating that the Special Reclamation Water Trust Fund moneys are to be used for both capital and operating expenses only calls special attention to the distinction and removes any ambiguity from West Virginia's requirements in light of the proposed deletion of “for the purpose of designing, constructing, and maintaining water treatment systems,” which we address below in the provision West Virginia has renumbered as paragraph (g)(2). S.B. 687 also clarifies that the money from the Special Reclamation Water Trust Fund is to be used where the Secretary has received or applied for an NPDES permit. As indicated in proposed paragraph (g)(2), addressed below, both funds are “for the reclamation and rehabilitation” of eligible lands, which we understand to mean that to the extent that any reclamation obligation is not expensed under the Special Reclamation Water Trust Fund, it will be expensed under the Special Reclamation Fund. Neither of these revisions materially change West Virginia's program as we approved it on May 7, 2020, and it continues to be no less stringent than ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━ Preview showing 10k of 41k characters. Full document text is stored and available for version comparison. ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━