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-127-FOR; Docket No. OSM-2020-0003; S1D1S SS08011000 SX064A000 201S180110; S2D2S SS08011000 SX064A000 20XS501520]</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. <SUM> <HD SOURCE="HED">SUMMARY:</HD> We, the Office of Surface Mining Reclamation and Enforcement (OSMRE), are approving an amendment to the West Virginia regulatory program (the West Virginia program) under the Surface Mining Control and Reclamation Act of 1977 (SMCRA or the Act). This amendment revises West Virginia's regulatory program provisions related to entities authorized to issue surety bonds and the repair and compensation of damage resulting from subsidence. </SUM> <EFFDATE> <HD SOURCE="HED">DATES:</HD> Effective September 9, 2024. </EFFDATE> <FURINF> <HD SOURCE="HED">FOR FURTHER INFORMATION CONTACT:</HD> Mr. Michael Castle, Acting Director, Charleston Field Office Telephone: (304) 347-7158. <E T="03">Email: 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> Section 503(a) of the Act permits a State to assume primacy for the regulation of surface coal mining and reclamation operations on non-Federal and non-Indian lands within its borders by demonstrating that its approved State program includes, among other things, State laws and regulations that govern surface coal mining and reclamation operations in accordance with the Act and consistent with the Federal regulations. <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 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, <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 5, 2020 (Administrative Record No. 1640), West Virginia sent us an amendment to its program under SMCRA (30 U.S.C. 1201 <E T="03">et seq.</E> ), docketed as WV-127-FOR. The amendment consists of revisions made by West Virginia House Bill 4217 (HB 4217), which was signed by the Governor on March 25, 2020. HB 4217 seeks to modify language in West Virginia's regulations relating to companies that execute surety bonds and modify language relating to the correction of material damage from subsidence to a landowner's structures or facilities. We announced receipt of the proposed amendment in the December 16, 2020, <E T="04">Federal Register</E> (85 FR 81436). In the same document, we opened the public comment period and provided an opportunity for a public hearing or meeting on the adequacy of the amendment. Due to the COVID-19 restrictions, a virtual public hearing was held on January 14, 2021. The public comment period ended on January 15, 2021. <HD SOURCE="HD1">III. OSMRE's Findings</HD> The following are the findings we made concerning the amendment under SMCRA and the Federal regulations at 30 CFR 732.15 and 732.17. We are approving the amendment as described below. The full text of the program amendment is available for review at <E T="03">https://www.regulations.gov</E> . <HD SOURCE="HD2">A. Surety Bonds—CSR 38-2-11.3.a.3</HD> West Virginia seeks to revise CSR 38-2-11.3.a.3, which requires any company that executes surety bonds in the State to either: (i) be included on the United States Department of the Treasury's (Treasury Department) listing of approved sureties; or (ii) to submit proof to the West Virginia Department of Environmental Protection (WVDEP) that it holds a valid license issued by the West Virginia Insurance Commissioner and meets certain reporting obligations. The existing provision further requires any company not included on the Treasury Department's listing of approved sureties to diligently pursue application for such listing, submit proof of its efforts, and become listed within 4 years. The revision would specify that only those companies electing to qualify under the first part must diligently pursue application for listing with the Treasury Department if they do not currently possess that certification. In other words, companies that elect to submit proof of a valid license from the West Virginia Insurance Commissioner and meet certain reporting obligations would no longer be required to diligently pursue application for listing or be listed with the Treasury Department. <E T="03">OSMRE Finding:</E> West Virginia's existing requirement has no counterpart under SMCRA or the Federal implementing regulations. Section 509(b) of SMCRA, 30 U.S.C. 1259(b), requires that a coal mining operator execute a surety bond with a corporate surety licensed to do business in the State where the operation is located. <E T="03">See also</E> 30 CFR 800.20(a). West Virginia first began requiring surety companies to hold a current certificate of authority from the Treasury Department in 2001. <E T="03">See</E> 68 FR 67035, 67038 (Dec. 1, 2003). WVDEP stated at the time that the requirement “was adopted to address concerns about the financial solvency of sureties providing reclamation bonds in West Virginia. The WVDEP did not have the necessary resources or expertise to regularly and timely monitor the financial condition of sureties doing business in West Virginia.” 70 FR 77321, 77321-22 (Dec. 30, 2005). West Virginia then modified the requirement in 2005 to allow surety companies to diligently pursue a certificate from the Treasury Department, thereby removing a barrier to sureties that were in good financial condition but did not yet have the Treasury Department certificate, from providing reclamation bonds in West Virginia. West Virginia filed an emergency rule with the West Virginia Secretary of State on September 21, 2005, which the Secretary of State approved on an emergency basis on October 11, 2005. WVDEP also filed a legislative rule containing the same language with the Secretary of State on September 21, 2005 (Administrative Record No. WV-1442). WVDEP provided OSMRE with a copy of that proposed rule for an informal review, and we recommended revisions. West Virginia adopted our suggested revisions, and we approved the amendment on December 30, 2005 (70 FR 77321). Since 2005, WVDEP has learned that under W.Va. Code sec. 33-4-14, corporate sureties must annually submit to the West Virginia Insurance Commissioner a true quarterly statement of their financial condition, transactions, and affairs as of March 31, June 30, and September 30 in order to do business in West Virginia. As a consequence of the current amendment, WVDEP will be relying on the expertise and review of the West Virginia Insurance Commission, because it is responsible for the licensing, financial monitoring, and financial examination of the companies admitted to do business in West Virginia. As amended, we find the revision to be no less effective than the Federal regulation at 30 CFR 800.20(a), which states that a surety bond shall be executed by the operator and a corporate surety licensed to do business in the State where the operation is located, and no less stringent than section 509(b) of SMCRA. Therefore, we approve this amendment. <HD SOURCE="HD2">B. Owner Compensation—CSR 38-2-16.2.c.2</HD> West Virginia seeks to revise CSR 38-2-16.2.c.2 relating to the correction of material damage to any structures or facilities resulting from subsidence. The existing regulation requires operators to either repair the damage or compensate the owner for the full amount of diminution in value resulting from the subsidence. West Virginia proposes to revise this provision to state explicitly that the choice of remedy is the owners' and to replace the option of repair with an option to be compensated in the amount of the repair, subject to the limitation that the compensation not exceed one hundred and twenty percent (120%) of the pre-mining value of the structure or facility. The proposal also inserts new language clarifying that this section neither creates additional property rights nor can it be construed as vesting in WVDEP's secretary the jurisdiction to adjudicate property rights disputes. <E T="03">OSMRE Finding:</E> Currently, the language of West Virginia's requirement at CSR 38-2-16.2.c.2 is substantively identical to section 720(a)(1) of SMCRA, 30 U.S.C. 1309a(a)(1), and 30 CFR 817.121(c)(2). Section 720(a)(1) of SMCRA states that underground coal mining operations must promptly repair, or compensate for, material damage resulting from subsidence caused to any occupied residential dwelling and related structures and any noncommercial buildings. Section 720(a)(1) further elaborates that repair includes rehabilitation, restoration, or replacement; that compensation must be in the full amount of the diminution in value resulting from the subsidence; and that compensation may be accomplished by the purchase, prior to mining, of a noncancellable premium-prepaid insuranc ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━ Preview showing 10k of 30k characters. Full document text is stored and available for version comparison. ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━