90 FR 142 pgs. 35417-35421 - West Virginia Regulatory Program
Type: RULEVolume: 90Number: 142Pages: 35417 - 35421
Pages: 35417, 35418, 35419, 35420, 35421Docket number: [SATS No. WV-128-FOR; Docket ID: OSM-2022-0004; S1D1S SS08011000 SX064A000 242S180110; S2D2S SS08011000 SX064A000 24XS501520]
FR document: [FR Doc. 2025-14193 Filed 7-25-25; 8:45 am]
Agency: Interior Department
Sub Agency: Surface Mining Reclamation and Enforcement Office
Official PDF Version: PDF Version
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 948
[SATS No. WV-128-FOR; Docket ID: OSM-2022-0004; S1D1S SS08011000 SX064A000 242S180110; S2D2S SS08011000 SX064A000 24XS501520]
West Virginia Regulatory Program
AGENCY:
Office of Surface Mining Reclamation and Enforcement, Interior.
ACTION:
Final rule; approval of amendment.
SUMMARY:
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.
DATES:
The effective date is August 27, 2025.
FOR FURTHER INFORMATION CONTACT:
Mr. Justin Adams, Field Office Director, Charleston Field Office. Telephone: (304) 977-7177, Email: osm-chfo@osmre.gov.
SUPPLEMENTARY INFORMATION:
I. Background on the West Virginia Program
II. Submission of the Amendment
III. OSMRE's Findings
IV. Summary and Disposition of Comments
V. OSMRE's Decision
VI. Statutory and Executive Order Reviews
I. Background on the West Virginia Program
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. See 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, Federal Register (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.
II. Submission of the Amendment
WV-128-FOR
[top] 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). See 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
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, Federal Register (88 FR 33025) (Administrative Record No. 1670). This can be viewed at www.regulations.gov 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.
WV-125-FOR and WV-126-FOR
In the January 12, 2024, Federal Register (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. Id. at 2134-35 and 2138 (codifying our deferral at 30 CFR 948.12(k)(1)). Likewise, in the March 18, 2024, Federal Register (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. Id. at 19270-71 and 19273 (codifying our decision at 30 CFR 948.12(k)(10), later corrected to (l)(10) by notice in the Federal Register 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.
III. OSMRE's Findings
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.
1. W. Va. Code 22-3-11(i)(2)(C)-Relating to the Management of the Special Reclamation Program
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.
OSMRE Findings: 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.g., 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, Federal Register (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 permits and bond forfeited permits must be up-to-date and accurate to adequately inform the Advisory Council's projections and recommendations. The accuracy of that information is also vital to our joint review of the West Virginia program, as well as our ultimate ability to determine whether the West Virginia program complies with 30 CFR 800.11(e)(1), which provides that OSMRE may approve a State's alternative bonding system only if it assures "that the regulatory authority will have available sufficient money to complete the reclamation plan for any areas which may be in default at any time." Therefore, we had determined, in accordance with 30 CFR 732.17(c), that West Virginia was required to submit a program amendment to ensure tracking of existing reclamation liabilities (including water treatment) at mining operations. We also explained that this improvement to tracking liabilities must reflect revisions or changes to the activities occurring at relevant sites and occur with such frequency that the actuarial studies are informed by current data.
[top] The addition of subparagraph (C) to W. Va. Code 22-3-11(i)(2) effectively supersedes what the West Virginia program had attempted to accomplish through the existing provision at W. Va. Code 22-3-11(g)(2) and its implementing regulations at CSR 38-2-12.5. Section 22-3-11(g)(2) of WVSCMRA previously required WVDEP to develop a long-range planning process for the selection and prioritization of bond forfeiture sites for reclamation, and CSR 38-2-12.5 required, among other things, that WVDEP create an inventory of all bond forfeiture sites and report annually to the West Virginia Legislature data regarding acid mine drainage at these sites. Unlike these existing provisions, West Virginia's current amendment
2. W. Va. Code 22-3-11(g)(2)-Relating to the Special Reclamation Fund; and CSR 38-2-12.5-Relating to the Inventory of All Sites Where Bonds Have Been Forfeited
In the January 12, 2024, Federal Register (89 FR 2133), we deferred our decision on West Virginia's proposed deletion of language from W. Va. Code 22-3-11(g)(2) that had required the development of a long-range planning process for the selection and prioritization of sites to be reclaimed to avoid inordinate short-term obligations of the fund's assets of such magnitude that the solvency of the fund was jeopardized. Relying on the same reason that they comprise a necessary component of fulfilling the requirements of an alternative bonding system- i.e., the ability to compile, review, and report data relevant to the financial health of the system on a regular basis, we also did not approve West Virginia's proposed deletion of its implementing regulations at CSR 38-2-12.5, particularly subsection a., which required the Secretary of WVDEP to create an inventory of all sites for which bonds had been forfeited, and subsection e., which required the Secretary of WVDEP to submit a detailed annual report to the West Virginia Legislature of acid mine drainage from bond forfeiture sites. See 89 FR 19262, 19270-71 (Mar. 18, 2024). In light of our approval of W.Va. Code 22-3-11(i)(2)(C) above, we are now revisiting those decisions.
OSMRE's Findings: West Virginia's long-range planning process for selection and prioritization of sites to be reclaimed has been addressed by us in previous decisions, specifically in the Federal Register notices of October 4, 1995, (60 FR 51900) and May 29, 2002, (67 FR 37610). In both instances, we explained in detail that for West Virginia's Special Reclamation Fund and its Special Reclamation Water Trust Fund to remain solvent requires an inventory of sites requiring reclamation. Without this inventory, it is virtually impossible for the Special Reclamation Advisory Council to accurately assess the liabilities that would be included in its alternative bonding system. We further emphasized this fact in our letter to the WVDEP dated August 23, 2021, (Administrative Record No. 1659). On March 29, 2022, WVDEP submitted WV-128-FOR, discussed above, to develop and maintain a database to track all Title V liabilities of SMCRA permits and bond forfeiture sites to better inform the management and operation of the WVDEP's Special Reclamation Program (Administrative Record No. 1666). Because we are approving West Virginia's creation and maintenance of an inventory to track reclamation liabilities, including water treatment, we find that the long-range planning process is no longer necessary to ensure the sufficiency of West Virginia's alternative bonding system. Therefore, we approve the deletion of that language from W.Va. Code 22-3-11(g)(2). Likewise, because reclamation liabilities entail the cost to the State of completing the reclamation plans and, therefore, necessarily include tracking several factors relevant to cost in addition to water quality, we find the provisions at CSR 38-2-12.5.a and e are no longer necessary and approve their deletion.
IV. Summary and Disposition of Comments
Public Comments
We asked for public comments on the amendment and received a letter from Appalachian Mountain Advocates (AMA) dated June 22, 2023 (Administrative Record No. 1671), as counsel for the Sierra Club and the West Virginia Highlands Conservancy (together, Community Groups).
AMA states in its letter that the Community Groups are concerned that the amendment is "insufficient to ensure compliance with SMCRA implementing regulations." The Community Groups raised concerns that the amendment does not provide West Virginia or OSMRE with enough detail to make an informed determination that West Virginia will have sufficient money to complete any reclamation plan for any areas that may be in default at any time. The Community Groups requested that OSMRE require two additional points-first, that WVDEP make the database publicly available online, and second, that WVDEP makes a written determination and analysis, based on the database, on January 1 of each year about whether West Virginia Special Reclamation Fund and Special Reclamation Water Trust Fund have sufficient funds to complete the reclamation plan for any areas which may be in default at that time. The Community Groups further assert that their concerns are exacerbated by a lack of indication by WVDEP that it has completed its database and by certain actions or omissions by the Advisory Council in its annual report filed January 1, 2023.
[top] First, while SMCRA does dictate the manner in which certain records are made available to the public, see, e.g., 30 CFR 700.14, 840.14 and 842.16 (availability of records), it does not generally supersede State open records laws, which would cover the availability of the database. Thus, we are approving this provision with the understanding that WVDEP will make information from the database available to the public in a manner that is, at a minimum, consistent with West Virginia's open records law at W. Va. Code 29B-1-1 et seq. and that WVDEP will use the database to report annually to the Advisory Council, which, in turn, will report to the Governor and the West Virginia Legislature.
Second, although we understand the commenter's concern, we decline to require an annual written determination by WVDEP as to the sufficiency of the West Virginia Special Reclamation Fund and the Special Reclamation Water Trust Fund. When conducting our oversight, we rely on the actuarial reports, the Advisory Commission reports, and our regular inspections, and other activities to determine whether West Virginia's alternative bonding system is capable of satisfying the requirements of 30 CFR 800.11. While a finding, such as the commenter's suggest, may provide additional information for our oversight, that requirement is not contained within the statutory text submitted to us by West Virginia; thus, we cannot approve or disapprove such a requirement and the lack of such a requirement does not make the proposed amendment not in accordance with SMCRA or inconsistent with the Federal regulations. Our subsequent oversight of West Virginia's implementation of the database will focus on the accuracy of the data, the solvency of the Funds, and whether any future amendments may be necessary.
Federal Agency Comments
On April 12, 2022, under 30 CFR 732.17(h)(11)(i) and section 503(b) of SMCRA or 884.14(a)(2) and 884.15(a), we requested comments on the amendment from various Federal agencies with an actual or potential interest in the West Virginia program (Administrative Record No. 1672). We did not receive any comments.
Environmental Protection Agency (EPA) Concurrence and Comments
Under 30 CFR 732.17(h)(11)(ii), we are required to get a written concurrence from EPA for those provisions of the program amendment that relate to air or water quality standards issued under the authority of the Clean Water Act (33 U.S.C. 1251 et seq. ) or the Clean Air Act (42 U.S.C. 7401 et seq. ). None of the revisions West Virginia proposed in this amendment pertain to air or water quality standards. Therefore, we did not ask the EPA to concur on the amendment.
State Historical Preservation Officer (SHPO) and the Advisory Council on Historic Preservation (ACHP)
Under 30 CFR 732.17(h)(4), we are required to request comments from the SHPO and ACHP on amendments that may have an effect on historic properties. On April 12, 2022, we requested comments on West Virginia's amendment (Administrative Record No.1672). We did not receive comments.
V. OSMRE's Decision
Based on the above findings, we find that the proposed amendment is in accordance with SMCRA and consistent with the Federal regulations, and we are approving this amendment to the West Virginia regulatory program under WVSCMRA, sent to us on March 29, 2022 (Administrative Record No. 1666). We are approving this provision with the understanding that WVDEP will make information from the database available to the public consistent with State open records laws and use such information to report annually to the Advisory Council, which in turn reports to the West Virginia Governor and the West Virginia Legislature. We are also approving West Virginia's deletion of language from W. Va. Code 22-3-11(g)(2) and CSR 32-2-12.5.a and 12.5.e, which we did not approve from amendments docketed at WV-125-FOR and WV-126-FOR, respectively, in anticipation of reviewing those revisions in concert with the current amendment. To implement this decision, we are amending the Federal regulations at 30 CFR part 948 that codify decisions concerning the West Virginia program. In accordance with the Administrative Procedure Act, this rule will take effect 30 days after the date of publication.
VI. Statutory and Executive Order Reviews
Executive Order 12630-Governmental Actions and Interference With Constitutionally Protected Property Rights
This rule would not result in a taking of private property or otherwise have taking implications that would result in private property being taken for government use without just compensation under the law. Therefore, a takings implication assessment is not required. This determination is based on an analysis of the Federal regulations that set minimum performance standards for alternative bonding systems.
Executive Orders 12866-Regulatory Planning and Review, 13563-Improving Regulation and Regulatory Review
Executive Order 12866 provides that the Office of Information and Regulatory Affairs in the Office of Management and Budget (OMB) will review all significant rules. Pursuant to OMB guidance dated October 12, 1993 (OMB Memo M-94-3), the approval of State program amendments is exempted from OMB review under Executive Order 12866. Executive Order 13563, which reaffirms and supplements Executive Order 12866, retains this exemption.
Executive Order 12988-Civil Justice Reform
The Department of the Interior has reviewed this rule as required by section 3 of Executive Order 12988. The Department determined that this Federal Register document meets the criteria of section 3 of Executive Order 12988, which is intended to ensure that the agency review its legislation and proposed regulations to eliminate drafting errors and ambiguity; that the agency write its legislation and regulations to minimize litigation; and that the agency's legislation and regulations provide a clear legal standard for affected conduct rather than a general standard, and promote simplification and burden reduction. Because section 3 focuses on the quality of Federal legislation and regulations, the Department limited its review under this Executive Order to the quality of this Federal Register document and changes to the Federal regulations. The review under this Executive Order did not extend to the language of the State regulatory program amendment that West Virginia drafted.
Executive Order 13132-Federalism
This rule has potential Federalism implications as defined under section 1(a) of Executive Order 13132. Executive Order 13132 directs agencies to "grant the States the maximum administrative discretion possible" with respect to Federal statutes and regulations administered by the States. West Virginia, through its approved regulatory program, implements and administers SMCRA and its implementing regulations at the State level. This rule approves an amendment to the West Virginia program submitted and drafted by the State and thus is consistent with the direction to provide maximum administrative discretion to States.
Executive Order 13175-Consultation and Coordination With Indian Tribal Governments
[top] The Department of the Interior strives to strengthen its government-to-government relationship with Tribes through a commitment to consultation with Tribes and recognition of their right to self-governance and Tribal sovereignty. We have evaluated this rule under the Department's consultation policy and under the criteria in Executive Order 13175 and have determined that it has no substantial direct effects on the distribution of power and responsibilities between the
Executive Order 13211-Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use
Executive Order 13211 requires agencies to prepare a Statement of Energy Effects for a rulemaking that is (1) considered significant under Executive Order 12866 and (2) likely to have a significant adverse effect on the supply, distribution, or use of energy. Because this rule is exempt from review under Executive Order 12866 and is not significant energy action under the definition in Executive Order 13211, a Statement of Energy Effects is not required.
National Environmental Policy Act
Consistent with sections 501(a) and 702(d) of SMCRA (30 U.S.C. 1251(a) and 1292(d), respectively) and the U.S. Department of the Interior Departmental Manual, part 516, section 13.5(A), State program amendments are not major Federal actions within the meaning of section 102(2)(C) of the National Environmental Policy Act (42 U.S.C. 4332(2)(C)).
Paperwork Reduction Act
This rule does not include requests and requirements of an individual, partnership, or corporation to obtain information and report it to a Federal agency. As this rule does not contain information collection requirements, a submission to the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. 3501 et seq. ) is not required.
Regulatory Flexibility Act
This rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ). The State submittal, which is the subject of this rule, is based upon Federal regulations that set minimum performance standards for alternative bonding systems, for which an economic analysis was prepared, and certification made that such regulations would not have a significant economic effect upon a substantial number of small entities. In making the determination as to whether this rule would have a significant economic impact, the Department relied upon the data and assumptions for the related Federal regulations.
Small Business Regulatory Enforcement Fairness Act
This rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. This rule: (a) does not have an annual effect on the economy of $100 million; (b) will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions; and (c) does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises. This determination is based on an analysis of the Federal regulations that set minimum performance standards for alternative bonding systems, which were determined not to constitute a major rule.
Unfunded Mandates Reform Act
This rule does not impose an unfunded mandate on State, local, or Tribal governments or the private sector of more than $100 million per year. The rule does not have a significant or unique effect on State, local, or Tribal governments or the private sector. This determination is based on an analysis of the Federal regulations that set minimum performance standards for alternative bonding systems, which were determined not to impose an unfunded mandate. Therefore, a statement containing the information required by the Unfunded Mandates Reform Act (2 U.S.C. 1531 et seq. ) is not required.
List of Subjects in 30 CFR Part 948
Intergovernmental relations, Surface mining, Underground mining.
Ben Owens,
Acting Regional Director, Interior Regions 1 & 2.
For the reasons set out in the preamble, 30 CFR part 948 is amended as follows:
PART 948-WEST VIRGINIA
1. The authority citation for part 948 continues to read as follows:
Authority:
30 U.S.C. 1201 et seq.
§?948.12 [Amended]
2. Section 948.12 is amended by removing and reserving paragraphs (k) and (l)(10).
3. Section 948.15 is amended by adding in chronological order an entry for "March 29, 2022" to the table to read as follows:
§?948.15 Approval of West Virginia regulatory program amendments.
| Original amendment submission date | Date of publication of final rule | Citation/description |
|---|---|---|
| * * * * * * * | ||
| March 29, 2022 | July 28, 2025 | W. Va. Code 22-3-11(g)(2) (partial deletion) and (i)(2)(C) (added). CSR 38-2-12.5.a and 12.5.e (deletions). |
[FR Doc. 2025-14193 Filed 7-25-25; 8:45 am]
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