[Federal Register Volume 89, Number 9 (Friday, January 12, 2024)]
[Rules and Regulations]
[Pages 2133-2139]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-00530]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 948

[SATS No. WV-125-FOR; Docket ID: OSMRE-2017-0003 S1D1S SS08011000 
SX064A000 2340S180110; S2D2S SS08011000 SX064A000 23XS501520]


West Virginia Regulatory Program

AGENCY: Office of Surface Mining Reclamation and Enforcement, Interior.

ACTION: Final rule; approval of amendment with deferral.

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SUMMARY: We, the Office of Surface Mining Reclamation and Enforcement 
(OSMRE), are approving, with one deferral, an amendment to the West 
Virginia statutory 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 Senate Bill 687 of 2017. These revisions modify the 
WVSCMRA requirements related to the release of bonds and provisions 
related to the use of money from the Special Reclamation Water Trust 
Fund. We are deferring our decision on the removal of provisions 
pertaining to the long-range planning process for the selection and 
prioritization of sites to be reclaimed.

DATE: This rule is effective February 12, 2024.

FOR FURTHER INFORMATION CONTACT: Mr. Michael Castle, Acting Field 
Office Director, Charleston Field Office, Telephone: (859) 260-3900. 
Email: <a href="/cdn-cgi/l/email-protection#4728342a6a242f21280728342a352269202831"><span class="__cf_email__" data-cfemail="dfb0acb2f2bcb7b9b09fb0acb2adbaf1b8b0a9">[email protected]</span></a>.

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, SMCRA section 503(a) 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). On the basis 
of 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

    By letter dated May 3, 2017 (Administrative Record No. 1608), and 
received by us on May 15, 2017, the West Virginia Department of 
Environmental Protection (WVDEP) submitted an amendment to its program 
under SMCRA, docketed as WV-125-FOR. The proposed amendment consists of 
statutory revisions to WVSCMRA contained in Senate Bill 687 of 2017 
(S.B. 687) (approved April 26, 2017). See 2017 W.Va. Acts ch. 86.
    Through S.B. 687, West Virginia seeks to revise statutory 
provisions related to the release of bonds and the use of

[[Page 2134]]

money from the Special Reclamation Water Trust Fund to assure a 
reliable source of capital and operating expenses for the treatment of 
discharges from bond-forfeited sites. West Virginia also seeks to 
revise and reorganize the bond release requirements specific to when 
the different phases of a bond can be released and under what 
circumstances; it also preserves the requirement that no bond will be 
released until all reclamation requirements are met.
    We announced receipt of the proposed amendment in the April 8, 
2019, Federal Register (84 FR 13853) (Administrative Record No. 1617). 
In the same notice, we opened a public comment period and provided an 
opportunity for a public hearing on these provisions. The public 
comment period closed on May 8, 2019. 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. For clarification, the summary of the April 8, 
2019, proposed rule notice also unintentionally mentions revisions to 
pre-blasting and blasting requirements as being a part of this 
amendment. West Virginia had submitted other amendments to its blasting 
regulations that we had not yet addressed; therefore, in order to keep 
all changes to the blasting regulations together, we consolidated them 
into a separate amendment, which can be viewed at www.regulations.gov 
by searching the Docket ID Number OSM-2016-0010-0002, or SATS No. WV-
123-FOR.

III. OSMRE's Findings

    We are approving, with one deferral, the revisions proposed in WV-
125-FOR as described below. The following are findings concerning West 
Virginia's amendment under SMCRA and the Federal regulations at 30 CFR 
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 
www.regulations.gov, searchable by the Docket ID Number referenced at 
the top of this notice.
    The following describes the substantive statutory revisions that 
WVDEP submitted to OSMRE for approval on May 3, 2017 (Administrative 
Record No. WV-1608).
    1. W. Va. Code 22-3-11(g)(1)--Bonds; amount and method of bonding; 
bonding requirements; special reclamation tax and funds; prohibited 
acts; period of bond liability.
    West Virginia seeks to revise W. Va. Code 22-3-11(g)(1) to specify 
that moneys in the Special Reclamation Water Trust Fund are to be used 
to assure a reliable source of capital and operating expenses for the 
treatment of water discharges from forfeited sites where the WVDEP 
Secretary has obtained or applied for a National Pollutant Discharge 
Elimination System (NPDES) permit as of the effective date of WVSCMRA. 
The existing provision states only that the funds assure ``a reliable 
source of capital to reclaim and restore water treatment systems on 
forfeited sites.''
    OSMRE's Findings: The West Virginia alternative bonding system was 
conditionally approved by the Secretary on January 21, 1981 (46 FR 
5915), and the condition of the approval was removed on March 1, 1983 
(48 FR 8448). This approval was granted under section 509(c) of SMCRA, 
30 U.S.C. 1259(c), which allows for the approval of an alternative 
bonding system that will achieve the objectives and purposes of section 
509. In drafting section 509(c), Congress was not specific in 
prescribing how alternative bonding programs should be financed. The 
relevant analysis is whether the proposed alternative bonding system 
achieves the objectives and purposes of a conventional bonding system 
as expressed in section 509 of SMCRA and as implemented by 30 CFR 
800.11(e).
    In the May 7, 2020, Federal Register (85 FR 27139), we approved on 
a permanent basis revisions to W. Va. Code 22-3-11(g) made by West 
Virginia in 2008 that added language to provide that the Special 
Reclamation Water Trust Fund was created within the State Treasury, 
into and from which moneys would be paid for the purpose of assuring a 
reliable source of capital to reclaim and restore water treatment 
systems on forfeited sites. Previously, the expenditure for water 
treatment systems was limited to fees collected under the Special 
Reclamation Fund. The revisions West Virginia proposes through S.B. 687 
clarify that in addition to assuring sufficient funds to cover capital 
costs, which generally relate to the construction of water treatment 
systems, the funds must also be sufficient to cover those systems' 
operating expenses.
    Both capital and operating costs must be accounted for to ensure 
compliance with the requirement in 30 CFR 800.11(e)(1) that the State 
have sufficient money to complete reclamation for any areas that may be 
in default at any time. In our 2020 approval, we made special mention 
of other language in this provision, which West Virginia now proposes 
to delete, that both funds are ``for the purpose of designing, 
constructing, and maintaining water treatment systems.'' See 85 FR at 
27152. The proposed text stating that the Special Reclamation Water 
Trust Fund moneys are to be used for both capital and operating 
expenses only calls special attention to the distinction and removes 
any ambiguity from West Virginia's requirements in light of the 
proposed deletion of ``for the purpose of designing, constructing, and 
maintaining water treatment systems,'' which we address below in the 
provision West Virginia has renumbered as paragraph (g)(2). S.B. 687 
also clarifies that the money from the Special Reclamation Water Trust 
Fund is to be used where the Secretary has received or applied for an 
NPDES permit. As indicated in proposed paragraph (g)(2), addressed 
below, both funds are ``for the reclamation and rehabilitation'' of 
eligible lands, which we understand to mean that to the extent that any 
reclamation obligation is not expensed under the Special Reclamation 
Water Trust Fund, it will be expensed under the Special Reclamation 
Fund. Neither of these revisions materially change West Virginia's 
program as we approved it on May 7, 2020, and it continues to be no 
less stringent than the Federal alternative bonding requirement at 
section 509(c) of SMCRA, 30 U.S.C. 1259(c), and no less effective than 
the Federal alternative bonding requirements at 30 CFR 800.11(e).
    2. W. Va. Code 22-3-11(g)(2)--Bonds; amount and method of bonding; 
bonding requirements; special reclamation tax and funds; prohibited 
acts; period of bond liability.
    In 1995, West Virginia submitted revisions to W. Va. Code 22-3-
11(g) that established the development of a long-range planning process 
for 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 
West Virginia's implementing regulations at 38 CSR 2-12.4(c), which 
provide that reclamation operations must be initiated within 180 days 
following final forfeiture notice, we approved that revision to the 
extent that it provided only for the ranking of sites for reclamation 
without compromising the requirement that all sites for which bonds 
were posted be properly and timely reclaimed. See 60 FR 51900 (Oct. 4, 
1995). In 2008, West Virginia further revised this section to account 
for the Special Reclamation Water Trust Fund and specified that ``[t]he 
secretary may use both funds for the purpose of designing, constructing

[[Page 2135]]

and maintaining water treatment systems when they are required for a 
complete reclamation of the affected lands described in this 
subsection.'' West Virginia now seeks to delete these provisions, as 
well as renumber the remaining paragraph, formerly part of (g)(1), as 
(g)(2).
    OSMRE's Findings: We addressed West Virginia's long-range planning 
process for selection and prioritization of sites to be reclaimed in 
previous decisions, specifically in the Federal Register documents of 
October 4, 1995 (60 FR 51900) and May 29, 2002 (67 FR 37610). In both 
of these instances, we explained in detail that for West Virginia's 
Special Reclamation Fund and 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 the alternative bonding system. We further 
emphasized this fact in our letter to the WVDEP dated August 23, 2021 
(Administrative Record No. 1659). Again, we raised concerns regarding 
WVDEP having not taken the necessary steps to ensure the complete and 
accurate listing of all outstanding reclamation obligations (including 
water treatment) on active permits. We informed WVDEP that the State 
was required to submit either a proposed written amendment or a 
description of an amendment to be proposed that meets the requirements 
of 30 CFR 732.17(f)(1) to establish a better inventory of existing 
obligations.
    On October 18, 2021, WVDEP responded to our letter with a proposal 
for an amendment (Administrative Record No. 1664) to address this 
issue, which then proceeded through the State's statute and rulemaking 
process. On March 29, 2022, WVDEP submitted this proposed revision to 
the West Virginia program (Administrative Record No. 1666) to develop 
and maintain a database to track reclamation liabilities in the WVDEP 
Special Reclamation Program. We are deferring our decision on Section 
22-3-11(g)(2) until we have reviewed the 2022 proposed amendment 
(docketed as WV-128-FOR). Our deferral does not impact West Virginia's 
efforts to renumber these provisions from subsection (g) to paragraph 
(g)(2), and the renumbering has no effect on the West Virginia program. 
Therefore, we approve the renumbering.
    3. W. Va. Code 22-3-23(c)--Release of bond or deposits; 
application; notice; duties of Secretary; public hearings; final maps 
on grade release.
    West Virginia seeks to amend W. Va. Code 22-3-23(c) to more closely 
reflect the language used in section 519(c) of SMCRA (Requirements for 
release), 30 U.S.C. 1269(c), first by eliminating the distinction 
previously created at existing subsections (c)(1) and (c)(2) between 
operations with and without an approved variance from the requirement 
that areas be reclaimed to approximate original contour (AOC). This 
proposed change replaces two sets of phased bond release requirements 
(currently at (c)(1)(A)-(C) and (c)(2)(A)-(C)) with one set of bond 
release requirements under subsection (c), paragraphs (1) through (3). 
The State also seeks to eliminate the proviso repeated under both sets 
of requirements that a minimum bond of ten thousand dollars shall be 
retained following Phase I and II bond releases, and a proviso that 
allowed total release of bonds following backfilling where provisions 
for sound future maintenance was assured by the local or regional 
economic development or planning agency and certain other requirements 
were met. West Virginia originally proposed the provision about sound 
future maintenance, as well as bond release provisions specific to 
operations with variances from AOC requirements, in relation to a 
Consent Decree agreed to by the plaintiffs and WVDEP in the matter of 
Bragg v. Robertson, Civil Action No. 2:98-0636 (S.D.W.Va.) (approved by 
the U.S. District Court for the Southern District of West Virginia on 
February 17, 2000). The remaining changes relate to Phase II bond 
release at existing subparagraphs (c)(1)(B) and (c)(2)(B), which will 
become paragraph (c)(2).
    West Virginia's proposed revisions eliminate a requirement that 
Phase II bond release (i.e., bond release following successful 
revegetation) may occur only at a minimum of two years from the last 
augmented seeding, fertilizing, irrigation, or other work, and 
eliminate the flat percentage of bond returned at Phase II bond release 
(ten percent for those operations with an approved variance from AOC, 
twenty-five percent for all other operations). In place of the flat 
percentages, paragraph (2) will provide that the bond or deposit, in 
whole or in part, may be released after revegetation has been 
established on the regraded mined lands in accordance with the approved 
reclamation plan. When determining the amount of bond to be released 
after successful revegetation has been established, the Secretary will 
retain that amount of bond for the revegetated area that would be 
sufficient for a third party to cover the cost of reestablishing 
revegetation and for the period specified for operator responsibility 
at W. Va. Code 22-3-13(b). This section establishes that the operator 
ensures that all reclamation efforts proceed in an environmentally 
sound manner and as contemporaneously as practicable and complies with 
the minimum environmental performance standards for surface mining 
operations.
    Proposed paragraph (c)(3) redrafts provisos from subparagraphs 
(c)(1)(C) and (c)(2)(C) that provide that when the operator has 
successfully completed all surface coal mining and reclamation 
activities, the remaining portion of the bond may be released, but not 
before the expiration of the period specified for operator 
responsibility at W. Va. Code 22-3-13(b). These provisions also provide 
that no bond will be fully released until all reclamation requirements 
are complied with, and that ``the release may be made where the quality 
of untreated post-mining water discharged is better than or equal to 
the premining water quality discharged from the mining site where 
expressly authorized,'' which currently only relates to West Virginia's 
remining regulations at CSR 38-2-23. All of this language will now 
appear at proposed paragraph (c)(3).
    OSMRE's Findings: As we explained in our August 18, 2000, Federal 
Register notice (65 FR 50409, 50411), West Virginia's bond release 
requirements particular to operations with approved AOC variances apply 
to mountaintop removal and steep slope mining operations. We noted at 
that time that the different percentages of bonds released did not 
exceed those provided under section 519(c) of SMCRA and the Federal 
regulations at 30 CFR 800.40(c). Further, we explained that there was 
no counterpart in SMCRA or its implementing regulations for the 
requirement that final bond cannot be released on lands subject to an 
AOC variance unless, if applicable, any necessary postmining 
infrastructure is established and any necessary financing is completed. 
Therefore, the elimination of these unique requirements from WVSCMRA is 
approved.
    West Virginia proposed to delete a proviso stating that after Phase 
I and II bond release, operations must still maintain a minimum bond of 
$10,000. We find that this requirement is redundant of W. Va. Code 22-
3-11(a), which states: ``Provided, that the minimum amount of bond 
furnished for any type of reclamation bonding shall be ten thousand 
dollars.'' The elimination of this proviso from W. Va. Code 22-3-23 
does not relieve operations of the requirement of W. Va.

[[Page 2136]]

Code 22-3-11(a), which itself is the same as the requirement under 
section 509(a) of SMCRA, 30 U.S.C. 1259(a). Therefore, we approve this 
deletion to the extent that it removes the requirement from West 
Virginia's bond release requirements, but we note that its deletion has 
no effect on West Virginia's general requirement that no reclamation 
bonds may be less than ten thousand dollars.
    In the November 12, 1999, Federal Register (64 FR 61507, 61512), we 
deferred a decision on the proposed amendment that would allow certain 
operations to be granted full bond release where provisions for sound 
future maintenance were assured by the local or regional economic 
development or planning agency and certain other requirements were met. 
Our deferral pended West Virginia's submission of regulations that West 
Virginia believed would satisfy our concerns that the proviso created 
an exemption from bond release requirements that conflicted with SMCRA. 
At that time, we explained that until we readdressed our deferral, West 
Virginia was prohibited from implementing this provision. Because this 
provision never became effective, West Virginia's current proposed 
deletion of the proviso has no effect on West Virginia's program. 
Therefore, we are approving the deletion.
    West Virginia also proposed to revise the requirements for Phase II 
bond release by eliminating the specified amount (ten and twenty-five 
percent) that is to be returned upon a Phase II bond release and 
eliminating the minimum two-year waiting period after the last 
augmented seeding before revegetation standards may be met. Neither 
SMCRA nor the Federal regulations specify an amount of bond to be 
released upon Phase II or proscribe a time period for the determination 
that revegetation has been established for the purpose of Phase II bond 
release. Rather, Federal law places within the discretion of the 
regulatory authority the need to determine and retain adequate bond to 
complete all required reclamation and to determine that successful 
revegetation has been established. See 30 U.S.C. 1269(c)(2) and 30 CFR 
800.40(c)(2). When we approved West Virginia's inspection frequency of 
inactive mines, we explained that West Virginia's two-year requirement 
from last augmented seeding was more stringent than Federal 
requirements. See 55 FR 21304, 21333 (May 23, 1990). The Federal 
requirements at 30 CFR 800.40(c) ``require only that revegetation be 
successfully established, with the definition of `established' left to 
the discretion of the regulatory authority, provided it includes 
adequacy to control erosion and compliance with the species composition 
requirements of the reclamation plan.'' When a regulatory authority 
proposes to remove a provision that is more stringent than the Federal 
requirements, we must still ensure the remaining provisions are not 
rendered less stringent than those requirements. The two-year 
requirement is not critical to a mining operator's achievement of the 
relevant vegetative performance standard or to WVDEP's evaluation of 
whether the standard is met. The proposed amendment retains West 
Virginia's commitment to verify that applicable standards for 
vegetative success have been met before the relevant portion of the 
bond is released and, therefore, is no less stringent than sections 505 
and 519 of SMCRA, 30 U.S.C. 1265 and 1269, or less effective than the 
Federal regulations at 30 CFR 800.40 and 816.116. Therefore, we are 
approving the amendment.
    West Virginia's proposed revision would eliminate the flat 
percentage Phase II bond release in favor of retaining the amount of 
bond for the revegetated area that would be sufficient for a third 
party to cover the cost of reestablishing revegetation and for the 
period specified for operator responsibility. This proposed revision 
directly reflects the language of 30 CFR 800.40(c)(2). In 1983, we 
removed from paragraph (c)(2) a corresponding twenty-five percent Phase 
II maximum bond release requirement in favor of more flexibility for 
the regulatory authority to retain the amount of bond necessary. See 48 
FR 32932, 32953 (July 19, 1983). At that time, we acknowledged that 
establishment of a maximum percentage as a Federal requirement was 
arbitrary and not consistent with SMCRA. Id. Given that West Virginia's 
revision brings its bond release requirement back in line with the 
Federal regulation, it is no less effective than Federal requirements, 
and we are approving it.
    Regarding proposed paragraph (c)(3), this paragraph simply redrafts 
provisions related to the conditions for final bond release from 
existing subparagraphs (c)(1)(C) and (c)(2)(C), which were revisions 
initially required by us, see 50 FR 28316, 28319 (July 11, 1985), and 
for which we later approved subsequent revisions by West Virginia, see 
68 FR 40157, 40158-59 (July 7, 2003). Because the proposed redrafting 
does not change any of these provisions from when we last approved 
them, we are approving the redrafted language.
    4. W. Va. Code 22-3-23(i)--Release of bond or deposits; 
application; notice; duties of Secretary; public hearings; final maps 
on grade release.
    WVDEP proposed to add subdivision (i) to its bonding requirements, 
which would authorize the Secretary to propose rules for legislative 
approval during the 2018 regular session of the Legislature that 
implemented the statutory changes discussed above while adopting, where 
possible, corresponding Federal regulatory standards. In addition, the 
Secretary was to specifically consider the adoption of corresponding 
Federal standards codified at 30 CFR part 700 et seq.
    OSMRE's findings: OSMRE is approving the addition of subdivision 
(i) to WVDEP's bonding requirements, which authorizes the Secretary to 
propose rules for legislative approval. In addition, the WVDEP 
Secretary was to specifically consider the adoption of corresponding 
Federal standards codified at 30 CFR part 700 et seq. This approval 
enabled WVDEP the discretion to amend its bonding regulations as needed 
so that West Virginia's program may continue to satisfy Federal law. 
West Virginia made its regulatory revisions through a Committee 
Substitute for Senate Bill 163 of 2018, see 2018 W.Va. Acts ch. 141, 
which West Virginia submitted to us on May 2, 2018 (Administrative 
Record No. WV-1613A, in part), docketed as WV-126-FOR. Subsection (i) 
itself did not change any substantive provisions of West Virginia's 
approved program, but instead only directed WVDEP to fashion revisions 
to WVDEP's regulations that WVDEP determined were necessary to comply 
with Federal law. Therefore, subsection (i) is neither inconsistent 
with SMCRA nor less effective than SMCRA's implementing regulations. We 
are currently reviewing those regulatory revisions made under the 
authority of subsection (i) as part of a separate action docketed at 
WV-126-FOR.

IV. Summary and Disposition of Comments

Public Comments

    We asked for public comments on the amendment and received a letter 
dated May 8, 2019, from the West Virginia Coal Association (WVCA) 
(Administrative Record No. 1627). WVCA stated in its letter that S.B. 
687 revised both bonding and explosives and blasting provisions of the 
WVSCMRA. WVCA stated that it was unclear why WV-125-FOR only covered 
the bonding portion of the bill. The blasting provisions referenced in 
our public notice of WV-125-FOR on April 8, 2019, were moved into WV-
123-FOR with House Bill 4726

[[Page 2137]]

(approved April 1, 2016), see 2016 W.Va. Acts ch.106, and Senate Bill 
163 (approved May 2, 2018), see 2018 W.Va. Acts ch. 141, which also 
amended West Virginia's blasting laws.

Federal Agency Comments

    On April 10, 2019, under 30 CFR 732.17(h)(11)(i) and section 503(b) 
of SMCRA, we requested comments on the amendment from various Federal 
agencies with an actual or potential interest in the West Virginia 
program (Administrative Record No. 1618). On April 30, 2019, we 
received a letter from the USDA Forest Service, Monongahela National 
Forest. The USDA Forest Service did not have any comments of the 
proposed changes to the revisions to the West Virginia Code 
(Administrative Record No. 1626).

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.). On April 10, 2019, under 30 CFR 732.17(h)(11)(i), 
we requested comments and concurrence from the EPA on the amendment 
(Administrative Record No. 1618). We received concurrence but no 
comments from the EPA on August 14, 2019, (Administrative Record No. 
1629).

State Historic Preservation Office (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 10, 2019, we requested comments on West Virginia's 
amendment (Administrative Record No. 1618). We did not receive any 
comments.

V. OSMRE's Decision

    We are approving this amendment, with one deferral, to the West 
Virginia statutory program under SMCRA. The amendment revises WVSCMRA 
as contained in Senate Bill 687 of 2017. These revisions modify the 
WVSCMRA requirements related to the release of bonds and provisions 
related to the use of money from the Special Reclamation Water Trust 
Fund.
    Based on the above findings, we are approving the amendment WVDEP 
sent to us on May 3, 2017 (Administrative Record No. 1608), with one 
exception--we are deferring our decision on the removal of provisions 
related to the long-range planning process and the prioritization of 
sites. We will address those proposed revisions along with West 
Virginia's submission docketed at WV-128-FOR related to the 
establishment of a database to track existing reclamation liabilities.
    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 effect a taking of private property or 
otherwise have taking implications that would result in public 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 corresponding Federal 
regulations.

Executive Orders 12866--Regulatory Planning and Review, 13563--
Improving Regulation and Regulatory Review, and 14094--Modernizing 
Regulatory Review

    Executive Order 12866, as amended by Executive Order 14094, 
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, the approval 
of State program amendments is exempted from OMB review under Executive 
Order 12866, as amended by Executive Order 14094. 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 to changes to the Federal regulations. The review under this 
Executive Order did not extend to the language of the State regulatory 
program or to the 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, in 
part, an amendment to the West Virginia program submitted and drafted 
by the State and defers decision on one element of the amendment only 
to the extent necessary to evaluate it in concert with a related 
amendment recently submitted by the State. Therefore, this rule is 
consistent with the direction to provide maximum administrative 
discretion to States.

Executive Order 13175--Consultation and Coordination With Indian Tribal 
Governments

    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 Federal government and Tribes. The basis for this 
determination is that our decision on the West Virginia program does 
not include Indian lands, as defined by SMCRA, or regulation of 
activities on Indian lands. Indian lands are regulated independently 
under the applicable approved Federal program. The Department's 
consultation policy also acknowledges that our rules may have Tribal 
implications where the State proposing the amendment encompasses 
ancestral lands in areas with mineable coal. We are currently working 
to

[[Page 2138]]

identify and engage appropriate Tribal stakeholders to devise a 
constructive approach for consulting on such amendments.

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 
a significant energy action under the definition in Executive Order 
13211, a Statement of Energy Effects is not required.

Executive Order 13045--Protection of Children From Environmental Health 
Risks and Safety Risks

    This rule is not subject to Executive Order 13045 because this is 
not an economically significant regulatory action as defined by 
Executive Order 12866; and this action does not address environmental 
health or safety risks disproportionately affecting children.

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)).

National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act (15 U.S.C. 3701 et seq.) directs OSMRE to use voluntary consensus 
standards in its regulatory activities unless to do so would be 
inconsistent with applicable law or otherwise impractical. (OMB 
Circular A-119 at p. 14). This action is not subject to the 
requirements of section 12(d) of the NTTAA because application of those 
requirements would be inconsistent with SMCRA.

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 corresponding Federal regulations 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 corresponding 
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 
corresponding Federal regulations, 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 corresponding Federal regulations, 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.

Thomas D. Shope,
Regional Director, North Atlantic--Appalachian Region.

    For the reasons set out in the preamble, 30 CFR part 948 is amended 
as follows:

PART 948--WEST VIRGINIA

0
1. The authority citation for part 948 continues to read as follows:

    Authority:  30 U.S.C. 1201 et seq.

0
2. Amend Sec.  948.12 by adding paragraph (k) to read as follows:


Sec.  948.12  State statutory, regulatory, and proposed program 
amendment provisions not approved.

* * * * *
    (k) We are not approving the following portions of provisions of 
the proposed program amendment that West Virginia submitted on May 15, 
2017:
    (1) We are deferring our decision on the deletion of 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. We defer our decision until we make a determination on 
West Virginia's related amendment docketed at WV-128-FOR, which relates 
to the complete and accurate listing of all outstanding reclamation 
obligations (including water treatment) on active permits in the State.
    (2) [Reserved]

0
3. In Sec.  948.15 amend the table by adding an entry in chronological 
order by ``Date of publication of final rule'' to read as follows:


Sec.  948.15  Approval of West Virginia regulatory program amendments.

* * * * *

----------------------------------------------------------------------------------------------------------------
                                                 Date of final
      Original amendment submission date        publication of     Citation/description of approved provisions
                                                  final rule
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
May 3, 2017...................................       1/12/2024  W.Va. Code 22-3-11(g)(1), (g)(2) (partial); 22-3-
                                                                 23(c) and (i).
----------------------------------------------------------------------------------------------------------------


[[Page 2139]]

[FR Doc. 2024-00530 Filed 1-11-24; 8:45 am]
BILLING CODE 4310-05-P


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