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-128-FOR; Docket ID: OSM-2022-0004; S1D1S SS08011000 SX064A000 242S180110; S2D2S SS08011000 SX064A000 24XS501520]</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. <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 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 House Bill 4758 of 2022. The revisions require the West Virginia Department of Environmental Protection (WVDEP) to develop and maintain a database to track reclamation liabilities, including water treatment, at coal mining operations in the state of West Virginia that were permitted after August 3, 1977, and for which the SMCRA permit has yet to be completely released. The database of reclamation liabilities will serve to inform management and operation of WVDEP's Special Reclamation Program. </SUM> <EFFDATE> <HD SOURCE="HED">DATES:</HD> The effective date is August 27, 2025. </EFFDATE> <FURINF> <HD SOURCE="HED">FOR FURTHER INFORMATION CONTACT:</HD> Mr. Justin Adams, Field Office Director, Charleston Field Office. Telephone: (304) 977-7177, 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, 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 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> <HD SOURCE="HD2">WV-128-FOR</HD> By letter dated August 23, 2021 (Administrative Record No. 1658), we required the West Virginia Department of Environmental Protection (WVDEP) to submit a program amendment that ensures appropriate tracking of existing reclamation liabilities (including water treatment) at coal mining operations. This tracking must ensure that information about existing reclamation liabilities is accurate and up-to-date and must enable an accurate assessment of the solvency of the State's Special Reclamation Fund and the Special Reclamation Water Trust Fund. To comply with our request, the West Virginia Legislature passed a revision to WVSCMRA contained in House Bill 4758 of 2022 (H.B. 4758) (approved March 28, 2022). <E T="03">See</E> 2022 W. Va. Acts ch. 130. H.B. 4758 amends section 22-3-11(i)(2) of WVSCMRA, W. Va. Code 22-3-11(i)(2), to require WVDEP to develop and maintain a database to track existing reclamation liabilities, including water treatment, at coal mining operations in the state of West Virginia that were permitted after August 3, 1977, and for which the SCMRA permit has yet to be completely released. By letter dated March 29, 2022 (Administrative Record No. 1666), West Virginia sent us the amendment to its program under SMCRA, which we docketed as WV-128-FOR. We announced receipt of the proposed amendment in the May 23, 2023, <E T="04">Federal Register</E> (88 FR 33025) (Administrative Record No. 1670). This can be viewed at <E T="03">www.regulations.gov</E> by searching the Docket ID Number OSM-2022-000 or SATS No. WV-128-FOR. In the same notice, we opened a public comment period and provided an opportunity for a public hearing on this provision. The public comment period closed on June 22, 2023. 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. <HD SOURCE="HD2">WV-125-FOR and WV-126-FOR</HD> In the January 12, 2024, <E T="04">Federal Register</E> (89 FR 2133), we deferred our decision on West Virginia's proposal (WV-125-FOR) to delete provisions from W. Va. Code 22-3-11(g)(2) regarding the development of a long-range planning process for the selection and prioritization of sites to be reclaimed. <E T="03">Id.</E> at 2134-35 and 2138 (codifying our deferral at 30 CFR 948.12(k)(1)). Likewise, in the March 18, 2024, <E T="04">Federal Register</E> (89 FR 19262), we did not approve West Virginia's proposal (WV-126-FOR) to delete from its regulations subsections a. and e. of CSR 38-2-12.5, which direct WVDEP's collection, analysis and reporting on sites where bond has been forfeited, including data relating to the quality of water being discharged from the forfeited sites. <E T="03">Id.</E> at 19270-71 and 19273 (codifying our decision at 30 CFR 948.12(k)(10), later corrected to (l)(10) by notice in the <E T="04">Federal Register</E> on January 17, 2025 (90 FR 5628). With West Virginia's submission of WV-128-FOR, we will revisit these proposed changes to the West Virginia program. <HD SOURCE="HD1">III. OSMRE's Findings</HD> We are approving the revisions proposed in WV-128-FOR as described below, as well as those revisions initially proposed in WV-125-FOR and WV-126-FOR. The following are our findings concerning West Virginia's amendment under SMCRA and the Federal regulations at 30 CFR 730.5, 732.15 and 732.17. <HD SOURCE="HD2">1. W. Va. Code 22-3-11(i)(2)(C)—Relating to the Management of the Special Reclamation Program</HD> New subparagraph (C) of W. Va. Code 22-3-11(i)(2) requires the Secretary of the WVDEP to develop and maintain a database to track existing reclamation liabilities, including water treatment, at coal mining operations in West Virginia that were permitted after August 3, 1977, and for which the SCMRA permit has yet to be completely released. The proposed addition also requires that this information be updated on a quarterly basis beginning July 2022 to ensure that actuarial studies of the special reclamation fund and special reclamation water trust fund are based on current data. <E T="03">OSMRE Findings:</E> In our August 23, 2021, letter to WVDEP, we acknowledged the complexity and potential impacts of bond forfeitures on the West Virginia-approved State program, particularly on the solvency of WVDEP's financial assurance program, which ensures funds are available to carry out reclamation responsibilities if a permittee is no longer able to do so. We also indicated that the West Virginia program had not taken sufficient steps to ensure the compilation of complete and accurate estimations of all outstanding reclamation obligations on active permits. SMCRA requires that, before issuing a SMCRA permit, an applicant must obtain a bond that is “sufficient to assure the completion of the reclamation plan if the work had to be performed by the regulatory authority in the event of forfeiture.” 30 U.S.C. 1259(a). The West Virginia program has historically relied on two principal sources of funding to ensure that sufficient funds are available for reclamation: financial assurances backed by third-party providers ( <E T="03">e.g.,</E> surety bonds) and two State funds—the State's Special Reclamation Fund (SRF) and Special Reclamation Water Trust Fund (SRWTF), which are funded mostly through a reclamation tax on coal produced in the State. Through our recent review with WVDEP of the West Virginia financial assurance program, we determined that the West Virginia program contained the same or similar deficiencies that we described in our approval of various amendments to West Virginia's program in the May 29, 2002, <E T="04">Federal Register</E> (67 FR 37610) (Administrative Record Number 1308). Our 2002 approval relied on the justification that WVDEP's methods for collecting and maintaining this information would improve and that the amendments would provide the recently created Special Reclamation Fund Advisory Council (Advisory Council), auditors, and ultimately the West Virginia Legislature with accurate and up-to-date information regarding the extent of reclamation obligations that could fall to the State. However, our recent review revealed that the program required additional improvements and that various deficiencies had since been raised between WVDEP and the Advisory Council but had not been corrected. We elaborated in our August 23, 2021, letter to DEP that the programmatic deficiencies may have resulted in leaving unfunded environmental liabilities that may not have been discovered until after forfeiture. The information from existing p ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━ Preview showing 10k of 33k characters. Full document text is stored and available for version comparison. ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━