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>[WV-116-FOR; OSM-2009-0008; S1D1S SS08011000 SX064A000 245S180110; 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; partial approval of amendment with 12 approved provisions, 5 provisions receiving qualified approval, and 1 not approved provision. <SUM> <HD SOURCE="HED">SUMMARY:</HD> We, the Office of Surface Mining Reclamation and Enforcement (OSMRE), approve in part 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 Coal Mining and Reclamation Act (WVSCMRA), the Code of West Virginia (W.Va. Code), and the West Virginia Code of State Rules (CSR). We approve 12 provisions, approving with understanding 5 provisions, and not approving 1 provision. </SUM> <EFFDATE> <HD SOURCE="HED">DATES:</HD> This rule is effective January 2, 2026. </EFFDATE> <FURINF> <HD SOURCE="HED">FOR FURTHER INFORMATION CONTACT:</HD> Mr. Justin Adams, Director, Charleston Field Office, Telephone: (304) 977-7450. 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 Review</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 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); 30 U.S.C. 1253(a)(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, <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> West Virginia revised its Code of State Regulations (CSR) and the West Virginia Code (W.Va. Code), as reflected in four bills enacted by the legislature in 2009: Senate Bill (SB) 153, SB 436, SB 600, and SB 1011. The amendment approved by this final rule covers a variety of topics, including continuing oversight by the Secretary of the West Virginia Department of Environmental Protection (WVDEP) of “approved persons” who prepare, sign, or certify mining permit applications and related materials; incidental boundary revisions (IBRs) to existing permits; deletion of the Coal Bonding Calculations Tables; changing the term “Bio-oil” to “Bio-fuel”; clarifying standards at CSR 38-2-9.3.f that pertain to West Virginia's regulatory program for revegetation success standards for areas developed for hayland or pasture use; and adjusting the per-ton coal tax. By letter dated May 11, 2009 (Administrative Record No. WV 1522), WVDEP submitted one of several amendments regarding its approved regulatory program under West Virginia's Surface Mining Reclamation Regulations at CSR title 38, series 2. This amendment includes regulatory revisions implemented by the passage of SB 153, which was adopted by the West Virginia Legislature on April 8, 2009, and signed into law by the Governor on April 30, 2009. SB 153 included provisions for the continued oversight of “approved persons” who prepare, sign, or certify mining permit applications and related materials. The bill also included provisions modifying IBR requirements for existing permits by clarifying that certain types of collateral activities are deemed parts of the primary mining operations and, therefore, subject to the same acreage limitations while providing additional criteria for the WVDEP Secretary to consider in evaluating an application for revision. The bill deletes the requirement that the Secretary must advertise all IBR applications and provide a 10-day public comment period and would instead allow IBRs deemed “insignificant” to be approved without public notice. In addition, the bill deleted the Coal Bonding Calculations Tables without changing the regulatory criteria the tables represented, changed the term “Bio-oil” to “Bio-fuel,” and clarified revegetation standards for hayland and pasture use. We initially determined that the change from “Bio-oil” to “Bio-fuel” was non-substantive and that soliciting public comment was unnecessary, but we later sought further clarification from WVDEP about the use of those terms, as further discussed below. By letter dated May 22, 2009 (Administrative Record No. WV 1521), WVDEP submitted two additional legislative enactments, SB 436 and Committee Substitute SB 600. SB 436 was adopted by the West Virginia Legislature on April 3, 2009, and was signed into law by the Governor on April 11, 2009. SB 600, which authorized changes to West Virginia's alternative bonding system, was passed by the Legislature on April 10, 2009, and was signed into law by the Governor on May 4, 2009, with an effective date of July 1, 2009. SB 436 amended W.Va. Code 22-3-8. In addition to non-substantive textual changes, SB 436 replaced references to certain defunct agencies at W.Va. Code 22-3-8(6)(A) by substituting their modern analogs. The May 22, 2009, letter advised that West Virginia considers the revisions authorized by SB 436 to be non-substantive changes and requested that they not be included in the proposed rule. Given the nature of the changes, we concurred with West Virginia's assessment and found them to be non-substantive changes. Therefore, we did not solicit public comment on these revisions in the October 21, 2009, proposed rule. Further, because the revisions amended a statutory provision of West Virginia's approved program, we are approving them without specific findings. SB 600, also transmitted by the May 22, 2009, letter, amended W.Va. Code 22-3-11. As stated in West Virginia's May 22, 2009, letter transmitting the amendment for approval on an interim basis, SB 600 amended Section 22-3-11 “to implement actuarial recommendations relating to the continuing fiscal viability of the Special Reclamation Fund.” The letter explained that the “legislation consolidates what has been known as `the 7-and-7.4 tax' (the 7.4 [cents per ton] portion of which is currently subject to annual renewal) into a 14.4 cent tax per ton of clean coal mined, reviewable every 2 years by the Legislature.” We approved the revision on an interim basis and solicited public comment in the <E T="04">Federal Register</E> on July 22, 2009 (74 FR 36113) (Administrative Record No. WV 1528). The public comment period on the interim rule closed on August 21, 2009. By letter dated July 6, 2009 (Administrative Record No. WV 1523), WVDEP also submitted a copy of SB 1011. SB 1011 amended the West Virginia Code at 22-3-10, 5B-2A-3, 5B-2A-5, 5B-2A-6, and 5B-2A-9. The amendments require surface mine reclamation plans to comport with approved master land use plans, as defined at CSR 145-8-2.11, and authorize surface mine reclamation plans to contain alternative postmining land uses. SB 1011 was passed by the West Virginia Legislature on June 2, 2009, and was signed into law by the Governor on June 17, 2009. In sum, West Virginia submitted a total of three letters relevant to this final rule (May 11, 2009, May 22, 2009, and July 9, 2009), transmitting four legislative enactments (SB 153, SB 436, SB 600, and SB 1011). As noted above, the changes enacted in SB 600 were adopted in an interim rule published on July 22, 2009 (74 FR 36113), and public comment was solicited. The changes reflected in SB 153, SB 436, and SB 1011 were announced in a notice of proposed rulemaking published in the <E T="04">Federal Register</E> on October 21, 2009 (74 FR 53972). In the October 21 notice, we opened the public comment period on the proposed rule and provided an opportunity for a public hearing or meeting on the adequacy of the proposed amendments (Administrative Record No. WV 1533). We did not hold a hearing or a meeting because none were requested. The public comment period closed on November 20, 2009. Additional administrative events in connection with WVDEP's 2009 submissions followed in 2010 and 2011. While responding to a request we submitted by email on July 26, 2010 (Administrative Record No. WV 1544), we asked WVDEP to provide a definition of “Bio-oil” and “Bio-fuel” and an explanation of the differences between them. WVDEP explained that bio-fuels “are a wide range of fuels which are derived from biomass.” WVDEP noted that the term bio-fuel “covers solid biomass, liquid fuels, and various biogases while bio-oil was limited to biodiesel.” Given WVDEP's explanation, we reopened the 15-day comment period on February 7, 2011 (76 FR 6589) in order to afford the public the opportunity to comment on the proposed amendment to change an allowed type of cropland po ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━ Preview showing 10k of 98k characters. Full document text is stored and available for version comparison. ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━