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-124-FOR; Docket No. OSM-2016-0012; S1D1S SS08011000 SX064A000 232S180110; 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; partial approval of amendment. <SUM> <HD SOURCE="HED">SUMMARY:</HD> We, the Office of Surface Mining Reclamation and Enforcement (OSMRE), approve in part an amendment to the West Virginia regulatory program under the Surface Mining Control and Reclamation Act of 1977 (SMCRA or the Act). This amendment makes changes to the West Virginia Code of State Rules (CSR), authorized under the West Virginia Surface Coal Mining and Reclamation Act (WVSCMRA), relating to bonding requirements for operations seeking permit renewals, topsoil, inactive status, and contemporaneous reclamation. </SUM> <EFFDATE> <HD SOURCE="HED">DATES:</HD> Effective January 2, 2026. </EFFDATE> <FURINF> <HD SOURCE="HED">FOR FURTHER INFORMATION CONTACT:</HD> Mr. Justin Adams, Field Office Director, Charleston Field Office, Telephone: (304) 347-7158. 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 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) and (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> By letter dated June 14, 2016, and received by OSMRE on June 21, 2016 (Administrative Record No. WV-1606), the West Virginia Department of Environmental Protection (WVDEP) submitted to us an amendment regarding its approved regulatory program under West Virginia's Surface Mining Reclamation Regulations at CSR title 38, series 2. This amendment includes regulatory revisions to CSR title 38, series 2 with the passage of Committee Substitute for House Bill 117 (H.B. 117) of 2016 (Administrative Record No. WV-1606). <E T="03">See</E> 2016 W. Va. Acts ch. 5 (1st Extraordinary Session). The bill includes revisions related to contemporaneous reclamation, inactive status, topsoil, bonding requirements for permit renewals, and incremental bonding for permit renewals. We announced receipt of the proposed amendment in the April 3, 2019, <E T="04">Federal Register</E> (84 FR 12984). 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. We did not hold a public hearing or meeting because none was requested. The public comment period ended on May 3, 2019. <HD SOURCE="HD1">III. OSMRE's Findings</HD> We are partially approving the revisions proposed as described below. We made the following findings concerning West Virginia's amendment under SMCRA and the Federal regulations at 30 CFR 730.5, 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">Regulations.gov</E> . The following describes the substantive regulatory revisions that West Virginia submitted to OSMRE for approval on June 14, 2016 (Administrative Record No. WV-1606) (WV-124). West Virginia seeks to amend several administrative regulations at CSR 38-2-3.27 (Permit Renewals), CSR 38-2-7.6 (Forest land), CSR 38-2-7.7 (Wildlife), CSR 38-2-11.4.a.2 (Incremental Bonding), CSR 38-2-14.3 (Topsoil), CSR 38-2-14.11 (Inactive Status), CSR 38-2-14.15 (Contemporaneous Reclamation, Backfilling and Grading, Excess Spoil Disposal, Variance), and CSR 38-2-22.3(t)(4) (Coal Refuse—Abandonment Plan). <HD SOURCE="HD2">1. CSR 38-2-3.27 (Permit Renewals) and CSR 38-2-11.4.a.2 (Incremental Bonding)</HD> West Virginia has proposed to add language to these provisions to exempt operations that have received a waiver of the permit renewal requirement under CSR 38-2-3.27 from the restriction at CSR 38-2-11.4.a.2, which prohibits operators from changing between full permit bonding and incremental bonding after their initial choice to proceed under either system. The proposed addition also provides a process for changing the bonding system by allowing the operation to submit a bonding revision to the Secretary for approval. <E T="03">OSMRE Finding:</E> Subsequent to West Virginia's submission of this amendment, West Virginia submitted an amendment that included West Virginia Senate Bill 163 of 2018 (S.B. 163), 2018 W. Va. Acts ch. 141, by letter dated May 2, 2018 (Administrative Record No. WV-1613-A), which we docketed as WV-126-FOR. S.B. 163 contained various revisions to the West Virginia CSR, including significant revisions to section CSR 38-2-11.4 (Incremental Bonding). Among those revisions, West Virginia deleted the restriction at CSR 38-2-11.4.a.2, which stated “[o]nce the operator has chosen to proceed with bonding either the entire permit area or with incremental bonding, he shall continue bonding in that manner for the term of the permit.” We approved those revisions because they made the regulation substantively identical to the Federal counterpart provision at 30 CFR 800.11. <E T="03">See</E> 89 FR 19266 (Mar. 18, 2024). West Virginia's revision to CSR 38-2-11.4.a.2 under S.B. 163 of 2018, and our subsequent approval in WV-126-FOR on March 18, 2024 (89 FR 19262), supersedes the revision addressed in this amendment and renders it moot because it was meant to exempt certain surface mining operations from a restriction that no longer exists. Regarding the proposed language at CSR 38-2-3.27, neither S.B. 163 nor any subsequent amendment by West Virginia has altered this proposed language, but it now provides an exemption to a restriction in CSR 38-2-11.4.a.2 that no longer exists there. However, the restriction at CSR 38-2-11.4.a.2 comes almost verbatim from section 11 of WVSCMRA, W. Va. Code 22-3-11(a), which has not been amended and still exists. When we approved that statutory provision, we noted that Federal law does not specifically require that the operator's initial choice to bond the entire permit area or increments thereof be continued for the entire term of the permit, but also that West Virginia's proposal would not conflict with any Federal requirement. <E T="03">See</E> 60 FR 51900, 51905-06 (Oct. 4, 1995). Therefore, an exemption from this restriction would also not conflict with Federal law. While this vestigial reference to CSR 38-2-11.4.a.2 would not make the West Virginia program less stringent than SMCRA or less effective than the Federal regulations, we are not making a determination on the revision to CSR 38-2-3.27 at this time because it is unclear whether West Virginia intends the exemption to apply to W. Va. Code 22-3-11(a) or intends to remove it in concert with its revision to CSR 38-2-11.4.a.2. If West Virginia wants us to approve this amendment in the future, it should correct the reference and submit new language for our review. <HD SOURCE="HD2">2. CSR 38-2-14.3 (Topsoil), CSR 38-2-7.6.c. (Forest Land), and CSR 38-2-7.7.c. (Wildlife)</HD> West Virginia seeks to revise its requirements for the postmining land uses of forest land and wildlife, the use of topsoil relating to soil placement, and the use of soil substitute material in sections CSR 38-2-7.6 (Forest Land), CSR 38-2-7.7 (Wildlife), and CSR 38-2-14.3 (Topsoil). West Virginia has proposed to amend CSR 38-2-7.6.c. 7.6.d.1, 7.7.c, 7.7.d.1, 14.3.a, and 14.3.c to address conflicting uses of the terms “topsoil,” “topsoil substitute,” “soil,” and “soil substitute” that West Virginia has asserted were apparent in their review of a Petition made to OSMRE dated June 24, 2013 pursuant to 30 CFR part 733. Among other issues, the Petitioner alleged that WVDEP failed to enforce the SMCRA requirement at 30 U.S.C. 1265(b)(6) that operators “[r]estore the topsoil or best available subsoil which is best able to support vegetation . . . .”; however, they made no allegations of specific on-the-ground violations. To adequately evaluate the Petition, OSMRE requested information from WVDEP. In its response to OSMRE, WVDEP explained that the topsoil in portions of West Virginia is very thin and that WVDEP sometimes uses its discretion to allow the use of topsoil substitutes when an applicant has demonstrated the volume of topsoil on the permit is insufficient to meet the mandatory depth requirements for topsoil. <E T="03"> ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━ Preview showing 10k of 65k characters. Full document text is stored and available for version comparison. ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━