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-118-FOR (partial); Docket ID: OSM-2011-0009; SATS No. WV-126-FOR; Docket ID: OSM-2019-0012; S1D1S SS08011000 SX064A000 220S180110;S2D2S SS08011000 SX064A000 220XS501520]</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 in part, disapproval of amendment in part. <SUM> <HD SOURCE="HED">SUMMARY:</HD> We, the Office of Surface Mining Reclamation and Enforcement (OSMRE), are approving 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 Surface Coal Mining and Reclamation Act (WVSCMRA), the Code of West Virginia (W.Va. Code), and the West Virginia Code of State Rules (CSR). </SUM> <EFFDATE> <HD SOURCE="HED">DATES:</HD> This rule is effective April 17, 2024. </EFFDATE> <FURINF> <HD SOURCE="HED">FOR FURTHER INFORMATION CONTACT:</HD> Mr. Michael Castle, Acting 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 Finding</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, 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 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). Based on 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 finding, 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 West Virginia's 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> <HD SOURCE="HD2">WV-118-FOR</HD> By letter dated April 25, 2011, received by us on May 2, 2011 (Administrative Record Number WV-1561), the West Virginia Department of Environmental Protection (WVDEP) submitted an amendment to its program under SMCRA, docketed as WV-118-FOR. The proposed amendment consists of regulatory revisions to the West Virginia Surface Mining Reclamation Regulations at CSR Title 38, Series 2, as contained in Committee Substitute for Senate Bill 121 of 2011. <E T="03">See</E> 2011 W.Va. Acts ch. 109. As is discussed more fully below, because West Virginia has made multiple submissions with respect to the same or similar provisions of statue and regulations, only a portion of the original submission from West Virginia will be addressed in this final rule. The remaining portion of WV-118 will be addressed in a subsequent final rule. Relevant to this Notice, Senate Bill 121 authorizes regulatory revisions codifying an emergency rule issued on December 16, 2009, which amend the existing West Virginia coal mining regulations by adding trust funds and annuities as approved forms of financial assurance instruments. We announced receipt of the proposed amendment in the November 2, 2011, <E T="04">Federal Register</E> (76 FR 67637). In the same notice, we opened a public comment period and provided an opportunity for a public hearing on these provisions (Administrative Record Number WV-1573). The public comment period closed on December 2, 2011. We received responses from three Federal agencies stating that they had no comments. <HD SOURCE="HD2">WV-126-FOR</HD> By letters dated May 2, 2018 (Administrative Record Nos. WV-1613A, in part, and WV-1613B), WVDEP submitted an amendment to its program under SMCRA, docketed as WV-126-FOR. The amendment contains revisions to the WVSCMRA and the West Virginia Surface Mining Reclamation Regulations at CSR 38-2-1 <E T="03">et seq.,</E> as contained in Committee Substitutes for Senate Bills 163 and 626 of 2018. <E T="03">See</E> 2018 W.Va. Acts chs. 141, 152. Senate Bill 163 seeks to revise regulatory provisions involving definitions, reclamation, the environmental security account for water quality, water quality enhancement and modifying sections on incremental bonding, release of bonds, forfeiture of bonds, effluent limitations, and blasting. Senate Bill 626 seeks to revise statutory provisions about the method in which permit applications, permit revisions, and informal conferences are advertised under WVSCMRA and make several editorial corrections about items such as position titles and agency names. We announced the receipt of the proposed amendment in the February 14, 2020, <E T="04">Federal Register</E> (85 FR 8497). 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. The public comment period ended on March 16, 2020. We did not hold a public hearing or meeting because one was not requested. We received one public comment that is addressed below in the Public Comments section of part IV, Summary and Disposition of Comments. When announcing the proposed amendment, we removed the blasting portion of Senate Bill 163 from the proposed rule and subsequently announced it on February 10, 2020, (85 FR 7476), as a part of the West Virginia program amendment WV-123-FOR. West Virginia had previously submitted an amendment to its blasting regulations that had not been approved; therefore, in order to keep all changes to the blasting regulations together, we consolidated them into WV-123-FOR. WVDEP-Division of Mining and Reclamation (DMR) sent a letter to the Regional Director, Interior Regions 1 and 2, dated February 3, 2020. In its letter, West Virginia asked us to prioritize part of the WV-118-FOR submission, in particular changes to CSR 38-2-11.3.f pertaining to financial assurance requirements, which also relates to requirements to release bonds and forfeiture of bonds. These changes are discussed in detail below. <HD SOURCE="HD1">III. OSMRE's Findings</HD> We are approving in part and disapproving in part the revisions proposed in WV-118 and WV-126 as described below. We made the following findings concerning West Virginia's amendment as provided 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 Numbers referenced at the top of this notice. <HD SOURCE="HD2">Statutory Revisions</HD> The following describes the substantive statutory revisions that WVDEP submitted to OSMRE for approval on May 2, 2018 (Administrative Record WV-1613-B) (WV-126). <HD SOURCE="HD3">1. W.Va. Code 22-3-9(a)(6). Permit Application Requirements and Contents</HD> West Virginia submitted a revision to this statutory provision that would remove the requirement that an applicant's advertisement of its permit application must be published in a newspaper of general circulation in the locality of the proposed permit area at least once a week for four successive weeks and add in its place a requirement that an applicant's advertisement must be on a form and in a manner prescribed by the Secretary, which manner may be electronic. <E T="03">OSMRE Finding:</E> We are not approving this section of the amendment as it is less stringent than sections 507(b)(6) and 513(a) of SMCRA (30 U.S.C. 1257(b)(6) and 1263(a)) and less effective than the Federal regulations at 30 CFR 773.6. Updating the public notification process to include electronic means is desirable. However, SMCRA specifically requires that permit applications, significant revisions, or renewal of a permit must be announced with an advertisement in a local newspaper of general circulation in the locality of the mining and reclamation operation at least once a week for four consecutive weeks. As one of the commenters notes, West Virginia cannot ensure that electronic public notice will reach the same audience contemplated by SMCRA's newspaper requirement. Therefore, while adding electronic means is encouraged, the elimination of the newspaper requirement renders the proposal less stringent and less effective than the Federal requirements. <HD SOURCE="HD3">2. W.Va. Code 22-3-20. Public Notice; Written Objections; Public Hearings; Informal Conferences</HD> West Virginia submitted two revisions to this statutory provision consistent with its proposed revision to section 22-3-9(a)(6), above. The first revision, concerning subsection (a), would remove the requirement that, at the time of submission, the applicant must place the advertisement of its permit application or permit revision in a local newspaper of general circulation in the county of the proposed surface mining operation at least once a week for four ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━ Preview showing 10k of 88k characters. Full document text is stored and available for version comparison. ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━