West Virginia Regulatory Program, 43761-43773 [2020-14460]

Agencies

• DEPARTMENT OF THE INTERIOR
• Office of Surface Mining Reclamation and Enforcement

[Federal Register Volume 85, Number 139 (Monday, July 20, 2020)]
[Proposed Rules]
[Pages 43761-43773]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-14460]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 948

[SATS No. WV-120-FOR; Docket ID: OSM-2014-0006; S1D1S SS08011000 
SX066A000 201S180110; S2D2S SS08011000 SX066A000 20XS501520]


West Virginia Regulatory Program

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

ACTION: Proposed rule; public comment period and opportunity for public 
hearing.

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SUMMARY: We, Office of Surface Mining Reclamation and Enforcement 
(OSMRE), are announcing receipt of a proposed amendment to the existing 
West Virginia Federal Lands Cooperative Agreement. Section 523(c) of 
the Surface Mining Control and Reclamation Act of 1977 (SMCRA or the 
Act) and the Federal regulations authorize a State with an approved 
permanent regulatory program to enter into an agreement for the State 
regulation and control of surface coal mining and reclamation 
operations on Federal lands. West Virginia's existing cooperative 
agreement was adopted in February of 1984, between the State and the 
Secretary of the Interior (the Secretary), to allow the State 
administration of SMCRA on Federal lands within West Virginia under its 
approved permanent regulatory program (the West Virginia program). 
Since several years have passed since the original agreement was 
adopted, West Virginia is now proposing to amend the existing 
cooperative agreement to reflect the current statutory schemes, 
regulatory requirements, and agency responsibilities associated with 
the regulation of coal mining and reclamation activities on Federal 
lands. Additionally, the revised cooperative agreement would grant the 
State the authority to regulate all coal exploration activities on 
Federal lands, and would delegate the primary responsibility to review 
and approve coal mining permits involving federally and privately owned 
coal. This document gives the times and locations that the West 
Virginia program and this proposed amendment to that program are 
available for your inspection, the comment period during which you may 
submit written comments on the amendment, and the procedures that we 
will follow for the public hearing, if one is requested.

DATES: We will accept written comments on this amendment until 4:00 
p.m., E.S.T., August 19, 2020. If requested, we will hold a public 
hearing on the amendment on August 14, 2020. We will accept requests to 
speak at a hearing until 4:00 p.m., E.S.T. on August 4, 2020.

ADDRESSES: You may submit comments, identified by SATS No. WV-120-FOR, 
by any of the following methods:
     Federal eRulemaking Portal: https://www.regulations.gov. 
The proposed rule has been assigned Docket ID OSM-2014-0006. Follow the 
instructions for submitting comments.
     Fax: (304) 347-7170.
     Mail/Hand Delivery: Mr. Ben Owens, Field Office Director, 
Pittsburgh Field Office, OSMRE, 3 Parkway Center South, 2nd Floor, 
Pittsburgh, PA 15220. Please include the rule identifier (WV-120-FOR; 
Docket ID OSM-2014-0006) with your written comments.
    Instructions: All submissions received must include the agency name 
and docket number for this rulemaking. For detailed instructions on 
submitting comments and additional information on the rulemaking 
process, see the ``Public Comment Procedures'' heading of the 
SUPPLEMENTARY INFORMATION section of this document.
    Docket: For access to the docket to review copies of the West 
Virginia program, this amendment, a listing of any scheduled public 
hearings, and all written comments received in response to this 
document, you must go to the address listed below during normal 
business hours, Monday through Friday, excluding holidays. You may 
receive one free copy of the amendment by contacting OSMRE's Charleston 
Field Office or the full text of the program amendment is available for 
you to read at https://www.regulations.gov.

Mr. Ben Owens, Pittsburgh Field Office Director, Office of Surface 
Mining Reclamation and Enforcement, 3 Parkway Center South, 2nd Floor, 
Pittsburgh, Pennsylvania 15220, Telephone: (412) 937-2827, Email: 
[email protected].

    In addition, you may review a copy of the amendment during regular 
business hours at the following location:

Mr. Harold Ward, West Virginia Department of Environmental Protection, 
601 57th Street SE, Charleston, West Virginia 25304, Telephone: (304) 
926-0490, Email: [email protected].

    In addition, you may review a copy of the amendment during regular 
business hours at the following locations:

Office of Surface Mining Reclamation and Enforcement, Morgantown Area 
Office, 604 Cheat Road, Suite 150, Morgantown, West Virginia 26508, 
Telephone: (304) 291-4004 (By Appointment Only).
Office of Surface Mining Reclamation and Enforcement, Beckley Area 
Office, 313 Harper Park Drive, Suite 3, Beckley, West Virginia 25801, 
Telephone: (304) 255-5265.

FOR FURTHER INFORMATION CONTACT: Mr. Ben Owens, Field Office Director, 
Pittsburgh Field Office, Office of Surface Mining Reclamation and 
Enforcement, Telephone: (412) 937-2827. Email: [email protected].

SUPPLEMENTARY INFORMATION:

[[Page 43762]]

I. Background on the West Virginia Cooperative Agreement
II. Proposed Revisions to the Cooperative Agreement
III. Public Comment Procedures
IV. Statutory and Executive Order Reviews

I. Background on the West Virginia Cooperative Agreement

    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 law which 
provides for the regulation of surface coal mining and reclamation 
operations in accordance with the requirements of this Act . . .; and 
rules and regulations consistent with regulations issued by the 
Secretary pursuant to this Act.'' 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, 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.
    West Virginia sent a request, received on August 26, 1981, 
proposing the existing Federal Lands Cooperative Agreement (herein 
referred to as the existing cooperative agreement) between the 
Department of the Interior and the State of West Virginia to give the 
State primacy and grant the ability to administer its approved 
regulatory program on Federal lands within West Virginia. West 
Virginia's existing cooperative agreement was approved on February 24, 
1984, and the final rule was published in the March 9, 1984, Federal 
Register (49 FR 8913). The text of the existing cooperative agreement 
can be found at 30 CFR 948.30.
    On August 5, 2014, the West Virginia Department of Environmental 
Protection (WVDEP) submitted a proposed, revised cooperative agreement 
(herein referred to as the revised agreement) to address several 
changes that have occurred since the existing cooperative agreement was 
adopted. (Administrative Record No. WV-1599). After expressing an 
interest in revising the agreement in 2009, WVDEP collaborated with 
OSMRE's Charleston Field Office (CHFO) before it submitted a final 
draft of the revised agreement.
    The provision for amending cooperative agreements is found in 30 
CFR 745.14. This provision provides that a cooperative agreement, which 
has been approved pursuant to 30 CFR 745.11, may be amended by mutual 
agreement of the Secretary and of the Governor of a State.
    Amendments to a cooperative agreement must be adopted by Federal 
rulemaking in accordance with 30 CFR 745.11. Sections 745.11(b)(1) 
through (8) require that certain information be submitted with a 
request for a cooperative agreement if the information has not 
previously been submitted in the State program. The information 
relating to the budget, staffing, organization and duties of the State 
regulatory authority, WVDEP, was submitted when West Virginia requested 
its existing cooperative agreement. See 49 FR 8913.
    OSMRE has determined that this information satisfies the 
requirements for the proposed amendments to the cooperative agreement, 
and no additional information is needed. A written certification from 
the West Virginia Attorney General was also included in the State's 
request for its existing cooperative agreement. The Attorney General 
concluded that no State statutory, regulatory or other legal constraint 
exists which would limit the capability of the State to fully comply 
with section 523(c) of the Act, as implemented by 30 CFR part 745.
    OSMRE is seeking comments on the proposed revisions to the existing 
cooperative agreement. If the amendment is deemed as sufficient, it 
will become part of the West Virginia program.

II. Proposed Revisions to the Cooperative Agreement

    Through this proposed rulemaking, West Virginia seeks to revise the 
outdated contents of its existing cooperative agreement. As the 
existing cooperative agreement does not contemplate the State's desire 
to regulate coal exploration activities and assume responsibility for 
approving coal mining permits involving federally leased coal, the 
revised agreement would authorize the State regulation of these 
activities. Under the revised agreement, the State would be primarily 
responsible for reviewing and approving coal mining permits involving 
federally and privately owned coal, as well as regulate all surface 
coal mining and reclamation operations on Federal lands within West 
Virginia. As a result, upon approval of the revised agreement, OSMRE 
would no longer be responsible for approving permits on Federal lands 
involving federally leased coal and would instead function solely in 
its oversight capacity to ensure the State complies with the West 
Virginia program and the terms of the revised cooperative agreement. 
The revised agreement would further clarify the requirements, 
procedures, and responsibilities of the State, OSMRE, the Secretary, 
and the other Federal agencies affected by such operations conducted on 
Federal lands.
    As discussed and summarized below, the revised agreement would 
include a more in-depth discussion of the agency duties regarding 
permit application review, permit revisions or renewals, agency 
coordination, bonding, and transfer, assignment, or sale of permit 
rights. The revised agreement would incorporate the Bureau of Land 
Management (BLM) responsibilities under the Mineral Leasing Act of 1920 
(MLA) for lands involving leased Federal coal and would include a new 
Article to address areas unsuitable for mining, valid existing rights 
(VER), and compatibility determinations reserved for the Secretary and 
non-delegable to the State.
    A summary of the proposed changes to the existing cooperative 
agreement is provided below. For convenience, the existing Article is 
provided alongside the corresponding proposed revised Article. These 
proposed revisions are subject to further changes because of public 
comments and further discussions with West Virginia. The full text of 
the terms of the proposed cooperative agreement, as submitted, is also 
provided.

Cooperative Agreement

    The proposed revisions to the introductory language concern non-
substantive wording or editorial changes.

Existing Article I: Introduction, Purpose and Responsible 
Administrative Agency

    Proposed Revised Article I: Introduction, Purposes, and Responsible 
Agencies
    Article I would be retitled to read: Article I: Introduction, 
Purposes, and Responsible Agencies.
    Under paragraph A. Authority, the statement ``including surface 
operations and surface impacts incident to underground mining 
operations'' is added for clarity. The language would be revised in 
paragraph A to (1) reference to activities reserved for BLM such as the 
ability to lease Federal coal subject to 43 CFR part 3400, subparts 
3480 through 3487; (2) explain that the State regulation will be 
conducted in a manner consistent with SMCRA, the

[[Page 43763]]

Federal lands program pursuant to 30 CFR parts 740, 745, and 746, and 
the approved West Virginia program; and (3) delegate authority to the 
State to review and approve coal exploration activities on Federal 
lands within West Virginia.
    Paragraph B. Purposes would be revised for editorial purposes and 
to incorporate the changes that have occurred in regards to agency 
structure.
    Paragraph C. Responsible Administrative Agencies would be revised 
to more accurately reflect the current agency structure and 
responsibilities. These revisions would change the name of the State 
agency with authority to regulate coal mining in West Virginia and 
would authorize WVDEP to administer the cooperative agreement on behalf 
of the Governor, instead of the Department of Natural Resources, 
Reclamation Division (DNR), as the existing cooperative agreement 
provided.

Existing Article II: Effective Date

Proposed Revised Article II: Effective Date
    The proposed revisions to Article II concern non-substantive 
wording or editorial changes.

Existing Article III: Definitions

Proposed Revised Article III: Definitions
    Article III would be revised to expand the list of definition 
sources, originally listing 30 CFR parts 700, 701, and 740, and the 
State program, to incorporate SMCRA, 30 CFR 700.5, 701.5 and 740.5, the 
West Virginia Surface Coal Mining and Reclamation Act (WVSCMRA), the 
Office of Explosives and Blasting, and the rules and regulations 
promulgated pursuant to those Acts. Moreover, the proposed revisions 
would add a new paragraph to resolve instances where a conflict occurs 
between State and Federal definitions, stating that the definitions 
used in the approved State program will apply with exception to the 
definition of ``valid existing rights'' which will use the Federal VER 
definition.

Existing Article IV: Applicability

Proposed Revised Article IV: Applicability
    The language in Article IV would be revised to clarify that 
although the laws, regulations, terms and conditions of the West 
Virginia program are applicable to Federal lands in the State through 
the cooperative agreement, certain authority or responsibilities are 
reserved and cannot be delegated to the State as the regulatory 
authority. Existing language would be revised to include additional 
current statutory and regulatory references that are relevant, but are 
not presently included. The proposed revisions would remove from the 
existing cooperative agreement a statement that the terms of the 
agreement do not apply to operations on Federal lands that contain 
leased Federal coal. Under the revised agreement, WVDEP would be 
primarily responsible for regulating coal mine sites which may involve 
federally owned coal, which will be discussed further below.
    The revised agreement would list the State Surface Mine Board, 
rather than the State of West Virginia's Reclamation Board of Review as 
provided in the existing cooperative agreement, as the appropriate 
entity to receive appeals of orders and decisions issued by WVDEP.

Existing Article V: Requirements for Cooperative Agreement

Proposed Revised Article V: General Requirements
    Article V would be retitled to read: Article V: General 
Requirements. Paragraph A. Authority of State Agency would be revised 
to list WVDEP as the appropriate State agency to carry out the terms of 
the cooperative agreement. Proposed revisions to paragraph B. Funding 
would provide WVDEP the necessary funds to cover the full cost incurred 
by the State in carrying out its responsibilities under the agreement. 
However, the proposed revision would also include the proviso, 
``provided that such cost does not exceed the estimated cost the 
Federal Government would have expended on such responsibilities in the 
absence of this Agreement.''
    Paragraph C. Reports and Records would be revised to require the 
State, pursuant to 30 CFR 745.12(d), to report its compliance with the 
cooperative agreement to OSMRE on a more frequent basis.
    Paragraphs D. Personnel and E. Equipment and Facilities would 
continue to require the State to provide the necessary personnel and 
access to facilities in order to implement the agreement. However, the 
revised agreement would make the existing personnel and facilities 
requirements contingent upon adequate appropriations and grant awards. 
Under the revised agreement, paragraph E would be retitled: E. 
Equipment and Facilities.
    Paragraph F would be revised to read: F. Permit Application Fees 
and Civil and Criminal Penalties and would incorporate coal exploration 
application fees. Paragraph F, as revised, would require civil and 
criminal penalties and fines collected from operations on Federal lands 
to be deposited in the State's Special Reclamation Fund and Special 
Reclamation Water Trust Fund and would allow the State to consider all 
permit application fees collected as program income to be retained by 
the State and deposited within WVDEP's Mining and Reclamation Operation 
Fund. Additionally, the existing requirement to submit a financial 
status report pursuant to 30 CFR 735.26 would be revised to require 
that the State report the permit fee, penalty, and fine amounts 
collected from operations on Federal lands during the prior grant year.

Existing Article VI: Review of a Permit Application Package

Proposed Revised Article VI: Review of Permit Application
    Article VI would be retitled to read: Article VI: Review of Permit 
Application. Article VI would be revised to update the procedures, 
responsibilities of each agency, and agency coordination associated 
with permitting on Federal lands. Under the revised agreement, WVDEP 
would be responsible for reviewing and approving coal mining permits 
involving federally and privately owned coal as well as the authority 
to regulate all surface coal mining and reclamation operations on 
Federal land. The revised agreement would provide a more thorough 
outline of the specific duties assigned to the State or Federal agency 
for permitting actions, including the agency responsibilities and 
review procedures for operations involving Federal surface and leased 
Federal coal.
    The proposed revisions would add paragraph A. Responsibilities. As 
established in the existing cooperative agreement, WVDEP would continue 
to hold the primary responsibility for reviewing and approving the 
permit application package. However, the revised paragraph A would 
identify BLM as the agency responsible for matters that concern Federal 
coal leases issued under mineral leasing laws which exclusively fall 
under 43 CFR part 3400 of the Federal regulations. In instances where 
the operation involves leased Federal coal, the revised agreement would 
require OSMRE to prepare a mining plan decision document and obtain 
approval from the Secretary. OSMRE would be required to consult and 
seek concurrence from BLM, the Federal land management agency, and 
other Federal agencies in order to determine the appropriate

[[Page 43764]]

mining plan recommendation for the Secretary.
    The proposed revisions would set forth the Secretary's reserved 
right to carry out certain responsibilities, and act independently of 
WVDEP, pursuant to laws other than SMCRA. The revised agreement would 
provide a clear depiction of the Secretary's responsibilities, outlined 
in 30 CFR 740.4(a), that cannot be delegated to the State under the 
Federal lands program, the MLA, NEPA, this proposed revised cooperative 
agreement, and other applicable Federal laws. However, the revised 
paragraph A would explain that the Secretary's authority to make 
certain determinations under SMCRA that cannot be delegated to WVDEP, 
but may be delegated to OSMRE. Although OSMRE retains responsibilities 
under NEPA, the revised paragraph A would specify that OSMRE may 
request the State's assistance in preparing documents for NEPA 
compliance. The revised agreement would enable OSMRE and the State, 
with the concurrence of other Federal agencies involved, to delegate 
additional responsibilities to WVDEP under other applicable Federal 
laws by establishing a working agreement.
    The proposed addition of paragraph B. Submission of Permit 
Application would continue to set forth similar permit application 
submission procedures as those provided under paragraph A. Contents of 
Permit Application Package of the existing cooperative agreement, but 
would incorporate coal exploration operations on Federal lands. The 
proposed paragraph B would additionally require applicants to satisfy 
the 30 CFR 740.13(b) requirements, which set forth the information 
required for a permit package, submission procedures, and other permit 
requirements. If OSMRE is regulating or processing existing or pending 
permit applications on Federal lands before the revised cooperative 
agreement is effective, paragraph B would allow the State to request 
that OSMRE continue its responsibility for those permits. While 
regulating or processing those applications, OSMRE may, however, pass 
its additional responsibilities to the State under the terms of the 
revised agreement, along with any resulting attendant fees, fines or 
civil or criminal penalties.
    The revised agreement would add paragraph C. Review Procedures to 
provide a more extensive description of agency responsibilities during 
permit review. The proposed paragraph C would require OSMRE and WVDEP 
to develop a work plan and permit application review schedule, 
incorporating the timeframes established by the approved State program. 
In addition to agency coordination procedures, the paragraph C would 
require OSMRE to provide the State with its comments on the application 
as well as any requirements for additional data, within 45 days of 
receiving the administratively complete permit application. OSMRE would 
coordinate the resolution of conflicts between WVDEP and other Federal 
agencies to assist the State in carrying out its responsibilities.
    The proposed, revised agreement would add paragraph D. Review 
Procedures Where There is Federal Surface, but No Leased Federal Coal 
Involved to clarify that WVDEP will be responsible for reviewing permit 
applications for operations on Federal lands that do not involve leased 
Federal coal and do not require a mining plan.
    The revised agreement would add paragraph E. Review Procedures 
Where Federal Surface and Leased Federal Coal Is Involved. Paragraph E 
would allow OSMRE to delegate its obligations under 30 CFR 740.4(c)(1) 
through (4), (6), and (7), thereby authorizing WVDEP to issue 
permitting decisions for operations on Federal land, review exploration 
operations not subject to 43 CFR part 3400, and assist OSMRE in the 
preparation of NEPA documents. After consulting the appropriate agency, 
the revised agreement would also enable the State to approve and 
release bonds and determine the post-mining land use. The proposed 
addition to paragraph E would also require BLM to notify WVDEP of its 
leasing actions and provide a copy of the decision.
    Paragraph F. [WV]DEP, OSMRE, and Other Federal Agency Coordination 
would be added under the revised agreement, to reiterate the agency 
coordination required when Federal leased coal is involved. In addition 
to discussing WVDEP's responsibility to consult with BLM and the 
Federal land management agency when the proposed permit application 
involved leased Federal coal, WVDEP would be responsible for seeking 
comments from other agencies with jurisdiction over Federal lands 
affected by the proposed operation. Under the proposed paragraph F, the 
State would be able to request Federal agencies to provide their 
comments and findings to WVDEP within 45 calendar days after receipt of 
the permit application. Pursuant to paragraph F, WVDEP would also be 
responsible for providing OSMRE written findings that each permit 
application involving lands containing leased Federal coal is in 
compliance with the State program.
    Paragraph F would set forth the State, OSMRE, and BLM's 
responsibility to coordinate with other agencies in instances where the 
land at issue contains leased Federal coal. Under the revised 
agreement, the State would be required to provide OSMRE with written 
findings demonstrating that each permit application complies with the 
West Virginia program and perform a technical analysis of each 
application to assist OSMRE.
    To make the recommendation for the Secretary's decision on the 
mining plan, OSMRE would be required to consult and obtain concurrence 
from BLM, the Federal land management agency, and any other agency with 
jurisdiction over Federal lands affected by the proposed operations. 
Lastly, paragraph F of the revised Article VI would also establish a 5 
day deadline for BLM to notify the State of actions taken pursuant to 
43 CFR part 3400 and provide documentation on all leasing decisions.
    The revised agreement would add paragraph G. Permit Application 
Decision and Permit Issuance. Under the proposed revised Article VI, 
paragraph G would authorize the State to approve, disapprove, or 
conditionally approve coal exploration activities on Federal lands. The 
proposed paragraph G would require certain terms or conditions to be 
incorporated into State-issued permits, including but not limited to, 
lease requirements pursuant to the MLA and post-mining land use 
conditions imposed by the Federal land management agency.
    Additionally, the proposed paragraph G would allow the State to 
approve surface mining permits or coal exploration activities involving 
leased Federal coal before the Secretary has issued a decision on the 
mining plan. However, paragraph G would clarify that the State would be 
responsible for informing the operator that permit issuance is 
contingent upon the Secretary's approval of the mining plan and coal 
exploration or surface mining cannot commence unless the mining plan 
has been approved. Further, the revised agreement would authorize the 
State to reserve the right to withdraw permit approval or modify the 
permit requirements in order to conform with any terms or conditions 
imposed by the Secretary in the approval of the mining.
    The revised agreement would add paragraph H. Review Procedures for 
Permit Revisions; Renewals; and Transfer, Assignment or Sale of Permit 
Rights, which would incorporate the procedures for the above-listed 
permit actions. For applications involving permit revisions or renewals 
on Federal lands, WVDEP would be responsible,

[[Page 43765]]

under the revised agreement, to review and approve the proposed 
revision or renewal. However, the revised agreement would require the 
State to consult OSMRE beforehand, to determine whether the proposed 
permitting action constitutes a mining plan modification. The proposed 
paragraph H would require OSMRE to notify the State, within 15 days of 
receiving a copy, if the proposed permit revision or renewal 
constitutes a mining plan modification. For mining plan modifications 
requiring Secretarial approval, the proposed paragraph H would direct 
OSMRE and the State to follow the procedures outlined in proposed 
paragraph E. Review Procedures Where Federal Surface and Leased Federal 
Coal Is Involved of the revised agreement.
    Additionally, the proposed paragraph H would allow OSMRE to 
establish criteria, consistent with the mining plan modification 
criteria set forth in 30 CFR 746.18, to identify those revisions or 
renewals that clearly do not constitute mining plan modifications. If 
OSMRE determines the renewal or revision does not constitute a mining 
modification, or the criteria for non-mining plan modifications is 
satisfied, the revised agreement under the proposed paragraph H would 
direct the State to review the proposed revision or renewal according 
to the procedures set forth in the proposed paragraph D. Review 
Procedures Where There is Federal Surface, but No Leased Federal Coal 
Involved, the West Virginia Program, and the regulations at 30 CFR 
740.13(d), if applicable.
    The proposed paragraph H would require transfer, assignment or sale 
of permit rights on Federal lands to be processed in accordance with 
the West Virginia program and the regulations at 30 CFR 740.13(e). 
Similar to the permit revisions or renewals procedures, applications 
for transfer, assignment or sale of permit rights must be evaluated to 
determine whether the application constitutes a mining plan 
modification. Those applications that constitute a mining plan 
modification would be processed according to the procedures provided in 
the proposed paragraphs E. Otherwise, applications that do not 
constitute a mining plan modification would be evaluated by the State 
according to the procedures set forth in the proposed paragraph D of 
the revised agreement.

Existing Article VII: Inspections

Proposed Revised Article VII: Inspections
    The revised Article VII would continue to require WVDEP to perform 
inspections on Federal land pursuant to 30 CFR 740.4(c)(5) and provide 
OSMRE with a copy of the completed State inspection report. However, 
the proposed revisions to Article VII would require WVDEP to provide 
OSMRE with access to a copy after the State conducts an inspection on 
Federal lands, on a ``timely basis'', rather than the 15 day deadline 
required by the existing cooperative agreement. Although the existing 
cooperative agreement states that nothing within the 1984 cooperative 
agreement will prevent other inspections by authorized Federal or State 
agencies, the proposed agreement would specifically include a reference 
to 30 CFR parts 842 and 843 to clarify that the authority for Federal 
inspection and monitoring and Federal enforcement is retained. 
Additionally, the proposed revisions would refer all citizen 
complaints, which do not involve an imminent danger or significant, 
imminent environmental harm, to WVDEP for action. The information 
regarding State and Department of Interior witness availability would 
be moved to Article VIII: Enforcement.

Existing Article VIII: Enforcement

Proposed Revised Article VIII: Enforcement
    Article VIII would be revised to clarify that WVDEP's enforcement 
actions includes the assessment of civil or criminal penalties in 
addition to issuing orders of cessation or notices of violation. 
Although the existing cooperative agreement requires the State to take 
appropriate enforcement action pursuant to the agreement, the revised 
agreement would additionally require WVDEP to notify OSMRE and the 
Federal land management agency of decisions to suspend or revoke a 
permit on Federal land prior to issuing such decision.
    In instances where inspections are conducted solely by OSMRE, or 
during a joint inspections where WVDEP and OSMRE do not agree on a 
particular enforcement action, the proposed revisions incorporate a 
reference to 30 CFR part 846 and would allow OSMRE to take the 
necessary enforcement actions regarding individual civil penalties.
    The proposed revisions to Article VIII would provide that permits 
to conduct coal exploration or surface coal mining and reclamation 
operations may be suspended or revoked by WVDEP pursuant to the State 
program, but issuance of any decision to suspend or revoke a permit on 
Federal land requires that WVDEP must first inform OSMRE and the 
Federal land management agency before its decision is issued. The State 
would be required to notify BLM, under the revised agreement, of its 
decision to revoke or suspend a permit is on lands containing leased 
Federal coal, so BLM may assess whether cancellation of the Federal 
lease is necessary.
    The proposed revisions to Article VIII would reference a new 
Appendix A, which lists the enforcement authority reserved to the 
Secretary.

Existing Article IX: Bonds

Proposed Revised Article IX: Bonds
    The revised Article IX would incorporate coal exploration 
activities, use of penal bonds, the conversion to a full-cost 
reclamation bond in the event the cooperative agreement is suspended or 
terminated, and the agency coordination and procedures associated with 
bond release and forfeiture. Under the revised agreement, the State and 
the Secretary would require operators conducting coal exploration or 
surface coal mining and reclamation activities on Federal lands to 
submit a performance and/or penal bond. While the existing cooperative 
agreement provides that such bond is conditioned upon the compliance 
with all applicable requirements, the revised Article would specify 
that these requirements include those established by SMCRA, the State 
program, other State or Federal laws and regulations, along with any 
other requirements imposed by the Secretary or Federal land management 
agency. In order for the State to release the bond, the State would be 
required to obtain OSMRE's concurrence in the bond release, which in 
turn would require OSMRE to consult the Federal land management agency 
and any other agency with jurisdiction or responsibility over Federal 
lands affected by the operation. The proposed revisions to this Article 
would additionally require the State to advise OSMRE of any annual 
adjustments to the bonds made pursuant to the West Virginia program.
    The proposed revised Article would continue to require bonds to be 
made payable only to the United States in the event the cooperative 
agreement terminated. However, the proposed revisions would 
additionally require the bond to provide that the portion covering 
Federal lands to be converted

[[Page 43766]]

into a full-cost reclamation bond upon the termination, as well as 
suspension, of the cooperative agreement. Further, the proposed 
revisions to this Article would require WVDEP, before termination of 
the cooperative agreement, to assist OSMRE in obtaining the full-cost 
reclamation bond from the operator for the areas only covering Federal 
lands.
    Moreover, the list of funds available to the State in the event of 
bond forfeiture would be revised to include the Special Reclamation 
Water Trust Fund. Additional language would be added to clarify that 
reclamation by the State is to be completed consistent with the West 
Virginia program and the reclamation plan before the permit is revoked 
or modified.
    Further, this existing Article would be revised to include 
additional bonds requirements and would identify the responsible 
agencies for collection and maintenance of such bonds. The revised 
agreement would provide that OSMRE or the appropriate Federal agency 
will be responsible for the collection and maintenance of Federal lease 
bonds or lessee protection bonds, if such bonds are required. The 
revised agreement would require BLM concurrence and compliance with 43 
CFR part 3400 requirements before releasing a Federal lease bond.

Proposed Revised Article X: Designating Land Areas Unsuitable for All 
or Certain Types of Surface Mining and Reclamation Operations and 
Activities and Valid Existing Rights (VER) and Compatibility 
Determinations

    The revised agreement would add a new Article to the existing 
cooperative agreement entitled, Article X: Designating Land Areas 
Unsuitable for all or Certain Types of Surface Mining and Reclamation 
Operations and Activities and Valid Existing Rights (VER) and 
Compatibility Determinations. Although Article VI of the existing 
cooperative agreement contemplates the content discussed below, the 
revised agreement would provide a more extensive outline of the 
procedures and agency responsibilities associated with the following 
determinations.
    Paragraph A. Unsuitability Petitions would set forth the 
Secretary's reserved authority to designate Federal lands as unsuitable 
for mining as provided by 30 CFR 745.13(a). The addition of paragraph A 
would discuss OSMRE's responsibilities in processing requests for 
designating Federal lands as unsuitable for mining and the termination 
of previous designations in accordance with 30 CFR part 769. The 
revised agreement would provide the required procedures for State and 
Federal agency coordination after a petition to designate lands 
unsuitable for mining is received.
    Paragraph B. Valid Existing Rights Determinations would provide the 
procedures and appropriate actions to be taken by the applicable State 
or Federal agency when requests for determinations of VER, pursuant to 
section 522(e) of SMCRA and the Federal regulations at 30 CFR 761.11, 
are received. For private in-holdings within areas protected under 30 
CFR 761.11(a) and SMCRA section 522(e)(1), WVDEP is to process the VER 
request in accordance with the State program, but use the Federal VER 
definition at 30 CFR 761.5 when making VER determinations.
    Paragraph C. Compatibility Determinations would outline the 
procedures for compatibility determinations and will state that the 
Secretary is responsible for issuing findings discussing whether there 
are significant recreational, timber, economic or other values that may 
be incompatible with surface coal mining operations incident to 
underground mining on Federal lands within the boundaries of a national 
forest protected pursuant to section 522(e)(2) of SMCRA and 30 CFR 
761.11(b). The proposed revision would list OSMRE as the responsible 
agency to process requests for compatibility determinations in 
accordance with the procedures outlined in 30 CFR 761.13.

Existing Article X: Termination of Cooperative Agreement

Proposed Revised Article XI: Termination of Cooperative Agreement
    Article X would be renumbered to read: Article XI: Termination of 
Cooperative Agreement.

Existing Article XI: Reinstatement of Cooperative Agreement

Proposed Revised Article XII: Reinstatement of Cooperative Agreement
    Article XI would be renumbered to read: Article XII: Reinstatement 
of Cooperative Agreement.

Existing Article XII: Amendment of Cooperative Agreement

Proposed Revised Article XIII: Amendment of Cooperative Agreement
    Article XII would be renumbered to read: Article XIII: Amendment of 
Cooperative Agreement.

Existing Article XIII: Changes in State or Federal Standards

Proposed Revised Article XIV: Changes in State or Federal Standards
    Article XIII would be renumbered to read: Article XIV: Changes in 
State or Federal Standards. The proposed revisions to the existing 
Article XIV concern non-substantive wording or editorial changes.

Existing Article XIV: Changes in Personnel and Organization

Proposed Revised Article XV: Changes in Personnel and Organization
    Article XIV would be renumbered to read: Article XV: Changes in 
Personnel and Organization. The proposed revisions to the existing 
Article WIV concern non-substantive wording or editorial changes.

Existing Article XV: Reservation of Rights

Proposed Revised Article XVI: Reservation of Rights
    Article XV would be renumbered to read: Article XVI: Reservation of 
Rights. The proposed amendment would include a reference to Appendix A.

III. Public Comment Procedures

    Under the provisions of 30 CFR 732.17(h), we are seeking your 
comments on whether the amendment satisfies the applicable program 
approval criteria of 30 CFR 732.15. If we approve the amendment, it 
will become part of the State program.

Electric or Written Comments

    If you submit written or electronic comments on the proposed rule 
during the 30-day comment period, they should be specific, confined to 
issues pertinent to the proposed regulations, and explain the reason 
for any recommended change(s). We appreciate any and all comments, but 
those most useful and likely to influence decisions on the final 
regulations will be those that either involve personal experience or 
include citations to and analyses of SMCRA, its legislative history, 
its implementing regulations, case law, other pertinent State or 
Federal laws or regulations, technical literature, or other relevant 
publications.
    We cannot ensure that comments received after the close of the 
comment period (see DATES) or sent to an address other than those 
listed (see ADDRESSES) will be included in the docket for this 
rulemaking and considered.

[[Page 43767]]

Public Availability of Comments

    Before including your address, phone number, email address, or 
other personal identifying information in your comment, you should be 
aware that your entire comment including your personal identifying 
information, may be made publicly available at any time. While you can 
ask us in your comment to withhold your personal identifying 
information from public review, we cannot guarantee that we will be 
able to do so.

Public Hearing

    If you wish to speak at the public hearing, contact the person 
listed under FOR FURTHER INFORMATION CONTACT by 4:00 p.m., E.S.T. on 
August 4, 2020. If you are disabled and need reasonable accommodations 
to attend a public hearing, contact the person listed under FOR FURTHER 
INFORMATION CONTACT. We will arrange the location and time of the 
hearing with those persons requesting the hearing. If no one requests 
an opportunity to speak, we will not hold a hearing.
    To assist the transcriber and ensure an accurate record, we 
request, if possible, that each person who speaks at the public hearing 
provide us with a written copy of his or her comments. The public 
hearing will continue on the specified date until everyone scheduled to 
speak has been given an opportunity to be heard. If you are in the 
audience and have not been scheduled to speak and wish to do so, you 
will be allowed to speak after those who have been scheduled. We will 
end the hearing after everyone scheduled to speak and others present in 
the audience who wish to speak, have been heard.

Public Meeting

    If only one person requests an opportunity to speak, we may hold a 
public meeting rather than a public hearing. If a public meeting is 
held instead, the Field Office Director will prepare a summary for the 
administrative record. If you wish to meet with us to discuss the 
amendment, please request a meeting by contacting the person listed 
under FOR FURTHER INFORMATION CONTACT. All such meetings are open to 
the public and, if possible, we will post notices of meetings at the 
locations listed under ADDRESSES. We will make a written summary of 
each meeting a part of the administrative record.

IV. Statutory and Executive Order Reviews

Executive Order 12866--Regulatory Planning and Review and Executive 
Order 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, 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.

Other Laws and Executive Orders Affecting Rulemaking

    When a State submits a program amendment to OSMRE for review, our 
regulations at 30 CFR 732.17(h) require us to publish a notice in the 
Federal Register indicating receipt of the proposed amendment, its text 
or a summary of its terms, and an opportunity for public comment. We 
conclude our review of the proposed amendment after the close of the 
public comment period and determine whether the amendment should be 
approved, approved in part, or not approved. At that time, we will also 
make the determinations and certifications required by the various laws 
and executive orders governing the rulemaking process and include them 
in the final rule.

List of Subjects in 30 CFR Part 948

    Intergovernmental relations, Surface mining, Underground mining.

Lanny E. Erdos,
Principal Deputy Director, Office of Surface Mining Reclamation and 
Enforcement.

    For the reasons set out in the preamble, 30 CFR part 948 is 
proposed to be amended as set forth below:

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. Section 948.30 is amended and revised to read as follows:


Sec.  948.30   State-Federal Cooperative Agreement.

Cooperative Agreement

    The Governor of the State of West Virginia (the Governor) and the 
Secretary of the Department of the Interior (the Secretary) enter into 
a Cooperative Agreement (Agreement) to read as follows:

Article I: Introduction, Purposes, and Responsible Agencies

A. Authority

    This Agreement is authorized by section 523(c) of the Surface 
Mining Control and Reclamation Act (SMCRA), 30 U.S.C. 1273(c), which 
allows a State with a permanent regulatory program approved by the 
Secretary under section 503 of SMCRA, 30 U.S.C. 1253, to elect to enter 
into an Agreement for the State regulation and control of surface coal 
mining and reclamation operations (including surface operations and 
surface impacts incident to underground mining operations) on Federal 
lands. This Agreement provides for State regulation of coal exploration 
operations and surface coal mining and reclamation operations on 
Federal lands within West Virginia, except for those activities 
reserved for the Bureau of Land Management (BLM) involving leased 
Federal coal subject to 43 CFR part 3400, subparts 3480 through 3487.
    This Agreement provides for State regulation of coal exploration 
and surface mining activities consistent with SMCRA, the Federal lands 
program (30 CFR parts 740, 745 and 746), and the approved West Virginia 
regulatory program (State Program). This Agreement does not abridge any 
rights that West Virginia may have under State law to regulate coal 
exploration activities within the State.

B. Purposes

    The purposes of this Agreement are to (a) foster Federal-State 
cooperation in the regulation of surface coal mining and reclamation 
operations and coal exploration operations not subject to BLM's 
authority under 43 CFR part 3400, (b) minimize intergovernmental 
duplication of effort, and (c) provide for uniform and effective 
application of the State Program on all lands within West Virginia in 
accordance with SMCRA, the State Program, and this Agreement.

C. Responsible Administrative Agencies

    The West Virginia Department of Environmental Protection (DEP) will 
be responsible for administering this Agreement on behalf of the 
Governor under the approved West Virginia Permanent Regulatory Program. 
The Office of Surface Mining Reclamation and Enforcement (OSMRE) will 
administer this Agreement on behalf of the Secretary, in accordance 
with the regulations in 30 CFR Chapter VII.

Article II: Effective Date

    After being signed by the Secretary and the Governor, this 
Agreement will take effect immediately after publication

[[Page 43768]]

in the Federal Register as a final rule. This Agreement will remain in 
effect until terminated as provided in Article XI.

Article III: Definitions

    The terms and phrases used in this Agreement that are defined in 
SMCRA, 30 CFR 700.5, 701.5 and 740.5, the State Program, including the 
approved West Virginia Surface Coal Mining and Reclamation Act 
(WVSCMRA) W. Va. Code section 22-3-1, et seq. and The Office of 
Explosives and Blasting, W. Va. Code section 22-3A-1, et seq., and the 
rules and regulations promulgated pursuant to those Acts, will be given 
the meanings set forth in said definitions. Where there is a conflict 
between the above referenced State and Federal definitions, the 
definitions used in the approved State Program will apply, except for 
valid existing rights (VER) requests pursuant to 30 CFR 761.16. The 
Federal VER definition will apply when making VER determinations for 
those protected areas identified in 30 CFR 761.11 (a) and (b).

Article IV: Applicability

    In accordance with the Federal lands program, the laws, 
regulations, terms and conditions of the State Program, as 
conditionally approved effective January 21, 1981, 30 CFR part 948, or 
hereinafter amended in accordance with 30 CFR 732.17, are applicable to 
Federal lands in West Virginia, except as otherwise stated in this 
Agreement, SMCRA, 30 CFR 740.4, 740.11(a) and 745.13, and other 
applicable laws, Executive Orders, or regulations.
    Orders and decisions issued by DEP in accordance with the State 
Program that are appealable must be appealed to the State Surface Mine 
Board. Orders and decisions issued by the Secretary or OSMRE that are 
appealable must be appealed to the Department of the Interior's Office 
of Hearings and Appeals.

Article V: General Requirements

    The Governor and the Secretary affirm that they will comply with 
all the provisions of this Agreement.

A. Authority of State Agency

    DEP has and will continue to have the authority under State law to 
carry out this Agreement.

B. Funding

    Upon application by DEP and subject to the availability of 
appropriations, OSMRE will provide the State with the funds to defray 
the costs associated with carrying out its responsibilities under this 
Agreement as provided in section 705(c) of SMCRA, the grant agreement, 
and 30 CFR 735.16. Such funds will cover the full cost incurred by DEP 
in carrying out these responsibilities, provided that such cost does 
not exceed the estimated cost the Federal Government would have 
expended on such responsibilities in the absence of this Agreement.
    The amount of the grant will be determined using the procedures 
specified in the Federal Assistance Manual Chapter 3-10 and Appendix 
III.
    If DEP applies for a grant but sufficient funds have not been 
appropriated to OSMRE, OSMRE and DEP will promptly meet to decide on 
appropriate measures that will insure that coal exploration operations 
and surface coal mining and reclamation operations on Federal lands 
within West Virginia are regulated in accordance with the State 
Program. If an agreement cannot be reached, either party may terminate 
this Agreement in accordance with Article XI of this Agreement.
    Funds provided to the DEP under this Agreement will be adjusted in 
accordance with the Office of Management and Budget Common Rule for 
Uniform Administration Requirements for Grants and Cooperative 
Agreements to State and Local Governments and must be reduced by the 
amount of permit application fees collected by the State that are 
attributable to the Federal lands covered by this Agreement.

C. Reports and Records

    DEP will make regular reports to OSMRE containing information with 
respect to compliance with the terms of this Agreement pursuant to 30 
CFR 745.12(d). Upon request, DEP and OSMRE will exchange information 
developed under this Agreement, except where prohibited by Federal or 
State law.
    OSMRE will provide DEP with a copy of any final evaluation report 
prepared concerning State administration and enforcement of this 
Agreement. DEP comments on the report will be appended before 
transmission to the Congress, unless necessary to respond to a request 
by a certain date or to other interested parties.

D. Personnel

    Subject to adequate appropriations and grant awards, the DEP will 
maintain the personnel necessary to fully implement this Agreement in 
accordance with the provisions of SMCRA, applicable regulations, the 
Federal lands program, and the approved State Program.

E. Equipment and Facilities

    Subject to adequate appropriations and grant awards, the DEP will 
assure itself access to equipment, laboratories, and facilities with 
which all inspections, investigations, studies, tests, and analyses can 
be performed which are necessary to carry out the requirements of this 
Agreement.

F. Permit Application Fees and Civil and Criminal Penalties

    The amount of the fee accompanying an application for a coal 
exploration operation or a surface coal mining and reclamation 
operation on Federal lands in West Virginia will be determined in 
accordance with the approved West Virginia Program. All permit 
application fees collected from operations on Federal lands will be 
considered program income to be retained by the State and must be 
deposited within the Department of Environmental Protection's Mining 
and Reclamation Operations Fund. Civil and criminal penalties and fines 
collected from operations on Federal lands must be deposited in State's 
Special Reclamation Fund and Special Reclamation Water Trust Fund. The 
financial status report submitted pursuant to 30 CFR 735.26 will 
include a report on the amount of permit fees, penalties, and fines 
collected from operations on Federal lands during the State's prior 
grant year.

Article VI: Review of Permit Application

A. Responsibilities

    DEP will assume primary responsibility for the analysis, review, 
and approval, disapproval or conditional approval of the permit 
application component of the permit application package-required by 30 
CFR 740.13 for surface coal mining and reclamation operations or for 
coal exploration operations in West Virginia on Federal lands.
    For proposals to conduct surface coal mining operations involving 
leased Federal coal, OSMRE is responsible for preparing a mining plan 
decision document in accordance with 30 CFR 746.13 and obtaining the 
Secretary's approval. The mining plan includes: The permit application; 
the resource recovery and protection plan reviewed and approved by BLM; 
information prepared in accordance with the National Environmental 
Policy Act (NEPA); documentation assuring compliance with other Federal 
laws and regulations; comments from other Federal agencies and the 
public; findings and recommendations from BLM with respect to the 
resource

[[Page 43769]]

recovery and protection plan; findings and recommendations from DEP 
with respect to the permit application and the approved State program; 
and findings and recommendations from OSMRE with respect to the 
additional requirements of the Federal Lands Program.
    BLM is responsible for matters concerned exclusively with 
regulations under 43 CFR part 3400.
    The Secretary reserves the right to act independently of DEP to 
carry out responsibilities under laws other than SMCRA or provisions of 
SMCRA not covered by the State Program, and in instances of 
disagreement over SMCRA and the Federal lands program. The Secretary 
will, as provided by 30 CFR 740.4(a), make determinations under SMCRA 
that cannot be delegated to the State, some of which have been 
delegated to OSMRE.
    The Secretary will concurrently carry out the responsibilities 
under 30 CFR 740.4(a) that cannot be delegated to DEP under the Federal 
lands program, the Mineral Leasing Act of 1920 (MLA), NEPA, this 
Agreement, and other applicable Federal laws. The Secretary will carry 
out these responsibilities in a timely manner and will avoid, to the 
extent possible, duplication of the responsibilities of the State as 
set forth in this Agreement and the State Program. The Secretary will 
consider the information in the permit application and, where 
appropriate, make decisions required by SMCRA, MLA, NEPA, and other 
Federal laws.
    Where necessary to make the determination to recommend that the 
Secretary approve the mining plan as provided by 30 CFR 740.4(b)(1), 
OSMRE will consult with and obtain the concurrences of BLM, the Federal 
land management agency, and other Federal agencies as required.
    DEP may assist OSMRE in the preparation of documentation to comply 
with the requirements of NEPA under 30 CFR 740.4(c)(7). If requested, 
DEP may assist with document preparation, but OSMRE will retain 
responsibility for preparing NEPA compliance documents, including the 
exceptions relating to NEPA as set forth in 30 CFR 740.4(c)(7)(i)-
(vii).
    DEP will be responsible for the approval and release of performance 
bonds and liability insurance under 30 CFR740.4(c)(4) in accordance 
with Article IX of this Agreement, and for the review and approval 
under 30 CFR 740.4(c)(6) of coal exploration operations not subject to 
43 CFR part 3400, subparts 3480-3487.
    Responsibilities and decisions that can be delegated to DEP under 
other applicable Federal laws may be specified in working agreements 
between OSMRE and the State with the concurrence of any Federal agency 
involved and without amendment to this Agreement.

B. Submission of Permit Application

    DEP will require an applicant proposing to conduct surface coal 
mining and reclamation operations or coal exploration operations on 
Federal lands covered by this Agreement to submit a permit application 
in the format as prescribed by DEP. DEP will furnish a copy of the 
permit application or make it available to OSMRE, the Federal land 
management agency, and any other agency with jurisdiction or 
responsibility over Federal lands affected by operations proposed in 
the permit application. The permit application will be in the form 
required by DEP and will include any supplemental information required 
by OSMRE, the Federal land management agency, and any other agency with 
jurisdiction or responsibility over Federal lands affected by 
operations proposed in the permit application.
    At a minimum, the permit application will satisfy the requirements 
of 30 CFR 740.13(b) and include the information necessary for DEP to 
make a determination of compliance with 30 CFR 740.4(c) and the State 
Program, and for OSMRE, the appropriate Federal land management 
agencies, and any other agencies with jurisdiction or responsibilities 
over Federal lands affected by operations proposed in the permit 
application to make determinations of compliance with applicable 
requirements of SMCRA, the Federal lands program, other Federal laws, 
Executive Orders, and regulations for which they are responsible.
    For any existing or pending permit applications on Federal lands 
being regulated or processed by OSMRE prior to the effective date of 
this Agreement, OSMRE will coordinate with DEP and continue that 
responsibility, if so requested by the State. At any point during the 
regulation or processing of those applications, all additional 
responsibilities may be passed to DEP pursuant to the terms of this 
Agreement, along with any attendant fees, fines or civil or criminal 
penalties therefrom.

C. Review Procedures

    DEP will be the primary point of contact for applicants regarding 
the review of the permit application for compliance with the State 
Program and other applicable State laws and regulations. OSMRE will be 
the point of contact regarding the review of the applicable portions of 
the permit application for compliance with the non-delegated 
responsibilities of SMCRA and for compliance with the requirements of 
other Federal laws, Executive Orders, and regulations.
    OSMRE and DEP will develop a work plan and schedule for permit 
application review that complies with the time limitations established 
by the approved State Program, and each agency will designate a person 
as the Federal lands liaison. The Federal lands liaisons will serve as 
the primary points of contact between OSMRE and DEP throughout the 
review process.
    Not later than 45 calendar days after receipt of an 
administratively complete permit application, unless a different 
schedule is agreed upon, OSMRE will furnish DEP with its review 
comments on the permit application and specify any requirements for 
additional data. OSMRE and DEP will coordinate with each other during 
the review process, as needed. DEP will send to OSMRE copies of any 
correspondence with the applicant and any information received from the 
applicant regarding the permit application.
    OSMRE will send to DEP copies of all OSMRE correspondence that may 
have a bearing on the permit application. OSMRE will provide technical 
assistance to DEP when requested and will have access to DEP files 
concerning coal exploration or surface mining operations on Federal 
lands. DEP will keep OSMRE informed of findings made during the review 
process that bear on the responsibilities of OSMRE or other Federal 
agencies.
    OSMRE will assist the State in carrying out DEP's responsibilities 
by coordinating resolution of conflicts and difficulties between DEP 
and other Federal agencies in a timely manner; assisting in scheduling 
joint meetings, upon request, between State and Federal agencies; and 
exercising its responsibilities in a timely manner, governed to the 
extent possible by the deadlines established in the State Program.

D. Review Procedures Where There Is Federal Surface, but No Leased 
Federal Coal Involved

    DEP will assume the responsibility for review of permit 
applications where there is no leased Federal coal to the extent 
authorized in 30 CFR 740.4(c)(1), (2), (4), (6) and (7).
    DEP will assume responsibility for the analysis, review and 
approval, disapproval or conditional approval of the permit application 
component of the permit application package required by 30 CFR 740.13 
for surface coal mining

[[Page 43770]]

and reclamation operations in West Virginia on Federal lands not 
requiring a mining plan pursuant to the MLA, as amended, including 
applications for revisions, renewals and transfer, sale and assignment 
of such permits.

E. Review Procedures Where Federal Surface and Leased Federal Coal Is 
Involved

    DEP will assume the responsibility for review of permit 
applications involving both Federal surface and leased Federal coal to 
the extent authorized in 30 CFR 740.4(c)(1), (2), (3), (4), (6) and 
(7).
    DEP will, to the extent authorized, consult with the Federal land 
management agency and BLM pursuant to 30 CFR 740.4(c)(2) and (3), 
respectively. On matters concerned exclusively with regulations under 
43 CFR part 3400, subparts 3480 through 3487, BLM will be the primary 
contact with the applicant. BLM will inform DEP of its actions and 
provide DEP with a copy of documentation on all leasing decisions.

F. DEP, OSMRE, and Other Federal Agency Coordination

    DEP will, to the extent authorized, consult with the Federal land 
management agency and with BLM when Federal leased coal is involved 
pursuant to 30 CFR 740.4(c)(2) and (3), respectively. DEP will also be 
responsible for obtaining the comments and determinations of other 
agencies with jurisdiction or responsibility over the Federal lands 
affected by the operations proposed in the permit application. DEP will 
request all Federal agencies to furnish their findings or any request 
for additional information to DEP within 45 calendar days of the date 
of receipt of the permit application. OSMRE will, upon request, assist 
DEP in obtaining such information.
    In accordance with 30 CFR 745.12(g)(2), where lands containing 
leased Federal coal are involved, DEP will provide OSMRE, in the form 
specified by OSMRE in consultation with DEP, with written findings 
indicating that each permit application is in compliance with the terms 
of the State Program and a technical analysis of each permit 
application to assist OSMRE in meeting its responsibilities under other 
applicable Federal laws and regulations.
    Where leased Federal coal is involved, OSMRE will consult with and 
obtain the concurrences of BLM, the Federal land management agency, and 
any other agency with jurisdiction or responsibility over the Federal 
lands affected by the operations proposed in the permit application as 
required to make its recommendation for the Secretary's decision on the 
mining plan.
    Where BLM contacts the applicant in carrying out its 
responsibilities under 43 CFR part 3400, BLM will immediately inform 
DEP of its actions and provide DEP with a copy of documentation of all 
leasing decisions within 5 calendar days.

G. Permit Application Decision and Permit Issuance

    DEP will prepare a State decision package, including written 
findings and supporting documentation, indicating whether the permit 
application is in compliance with the State Program. DEP will make the 
decision on approval, disapproval or conditional approval of the 
surface mining permit or coal exploration approval on Federal lands in 
accordance with the State Program.
    Any permit issued by DEP will incorporate, as applicable, any terms 
or conditions required by the lease issued pursuant to the MLA and by 
any other applicable Federal laws and regulations, including conditions 
imposed by the Federal land management agency relating to post-mining 
land use or any special requirements to protect non-mineral resources 
and those of other affected agencies.
    DEP may make a decision on approval, disapproval or conditional 
approval of the surface mining permit or coal exploration approval on 
Federal lands in accordance with the State Program prior to the 
necessary Secretarial decision on the mining plan when leased Federal 
coal is involved, provided that DEP advises the operator in the permit 
that Secretarial approval of the mining plan must be obtained before 
the operator may conduct coal exploration or surface coal mining 
operations on the Federal lease and conditions the issuance of the 
permit or approval as such. DEP will reserve the right to amend or 
rescind any requirements of the permit or approval to conform with any 
terms or conditions when imposed by the Secretary in the approval of 
the mining plan.
    After making its decision on the permit application, DEP will send 
a notice to the applicant, OSMRE, the Federal land management agencies, 
and any other agency with jurisdiction or responsibility over Federal 
lands affected by the operations proposed in the permit application. A 
copy of the permit and written findings will also be submitted to 
OSMRE.

H. Review Procedures for Permit Revisions; Renewals; and Transfer, 
Assignment or Sale of Permit Rights

    Any permit revision or renewal for a surface coal mining and 
reclamation operation on Federal lands will be reviewed and approved or 
disapproved by DEP after consultation with OSMRE on whether such 
revision or renewal constitutes a mining plan modification pursuant to 
30 CFR 746.18. OSMRE will inform DEP within 15 calendar days of 
receiving a copy of a proposed permit revision or renewal whether the 
permit revision or renewal constitutes a mining plan modification. 
Where approval of a mining plan modification is required, OSMRE and DEP 
will follow the procedures outlined in Section E of this Article.
    OSMRE may establish criteria consistent with 30 CFR 746.18 to 
determine which permit revisions or renewals clearly do not constitute 
mining plan modifications. Permit revisions or renewals on Federal 
lands that are determined by OSMRE not to constitute mining plan 
modifications or that meet the criteria for not being mining plan 
modifications will be reviewed and approved by following the procedures 
set forth in Section D of this Article, the State Program, and 30 CFR 
740.13(d), if applicable.
    Transfer, assignment or sale of permit rights on Federal lands will 
be processed in accordance with the State Program and 30 CFR 740.13(e). 
Those applications that do not or do require a mining plan modification 
will be processed according to the procedures set forth in Sections D 
or E of this Article, respectively.

Article VII: Inspections

    DEP will conduct inspections on Federal lands in accordance with 30 
CFR 740.4(c)(5) and prepare and file inspection reports in accordance 
with the State Program.
    DEP will, subsequent to conducting any inspection on Federal lands 
pursuant to 30 CFR 740.4(c)(5), and on a timely basis, provide OSMRE 
access to a copy of the completed State inspection report.
    DEP will be the point of contact and primary inspection authority 
in dealing with the operator concerning operations and compliance with 
the requirements covered by this Agreement, except as described 
hereinafter. Nothing in this Agreement will prevent inspections by 
authorized Federal or State agencies for purposes other than those 
covered by this Agreement. The Department of the Interior may conduct 
any inspections necessary to comply with 30 CFR parts

[[Page 43771]]

842 and 843 and its obligations under laws other than SMCRA.
    OSMRE will give DEP reasonable notice of its intent to conduct an 
inspection under 30 CFR 842.11 in order to provide State inspectors 
with an opportunity to join in the inspection.
    When OSMRE is responding to a citizen complaint of an imminent 
danger to the public health and safety or of significant, imminent 
environmental harm to land, air or water resources, pursuant to 30 CFR 
842.11(b)(1)(ii)(C), it will contact DEP prior to the Federal 
inspection, if circumstances and time allow, to facilitate a joint 
Federal/State inspection. All citizen complaints that do not involve an 
imminent danger or significant, imminent environmental harm will be 
referred to DEP for action. OSMRE may conduct any inspections necessary 
to comply with 30 CFR part 842. OSMRE will provide DEP with a copy of 
the inspection report within 15 days of the inspection. The Secretary 
reserves the right to conduct inspections without prior notice to DEP 
to carry out his responsibilities under SMCRA or other Federal laws.

Article VIII: Enforcement

    DEP will have primary enforcement authority on Federal lands to 
ensure compliance with the requirements of the State Program and this 
Agreement in accordance with 30 CFR 740.4(c)(5). Enforcement authority 
given to the Secretary under other Federal laws and Executive Orders 
including, but not limited to, those listed in Appendix A (attached) is 
reserved to the Secretary.
    During any joint inspection by DEP and OSMRE, DEP will have primary 
responsibility for taking enforcement actions, including issuance of 
orders of cessation, notices of violation, and assessment of civil or 
criminal penalties. DEP must inform OSMRE and the Federal land 
management agency prior to issuance of any decision to suspend or 
revoke a permit on Federal lands.
    A permit to conduct coal exploration or surface coal mining and 
reclamation operations on Federal lands may be suspended or revoked by 
DEP pursuant to the State program.
    If a permit to conduct coal exploration or surface coal mining and 
reclamation operations on lands containing leased Federal coal is 
suspended or revoked, the DEP must notify BLM so it can determine 
whether action should be taken to cancel the Federal lease pursuant to 
30 CFR 740.13(f)(2).
    During any inspection made solely by OSMRE or any joint inspection 
where DEP and OSMRE fail to agree regarding the propriety of any 
particular enforcement action, OSMRE may take any enforcement action 
necessary to comply with 30 CFR parts 843, 845, and 846. Such 
enforcement action will be based on the standards in the State Program, 
SMCRA or both and will be taken using the procedures and penalty system 
contained in 30 CFR parts 843, 845, and 846.
    DEP and OSMRE will promptly notify each other and the Federal land 
management agency of all violations of applicable laws, regulations, 
orders or approved mining permits subject to this Agreement and of all 
actions taken with respect to such violations.
    Personnel of DEP and the Department of the Interior, including 
OSMRE, will be mutually available to serve as litigation witnesses in 
enforcement actions taken by either party.
    This Agreement does not affect or limit the Secretary's authority 
to enforce violations of Federal laws other than SMCRA.

Article IX: Bonds

    DEP and the Secretary will require each operator who conducts coal 
exploration operations or surface coal mining and reclamation 
operations on Federal lands to submit a performance and/or penal bond 
payable to both the State of West Virginia and the United States to 
cover the operator's responsibilities under SMCRA and the State 
Program. The performance and/or penal bond will be conditioned upon 
compliance with the requirements of SMCRA, the State Program, other 
State or Federal laws and regulations, and any other requirements 
imposed by the Secretary or the Federal land management agency. Such 
bond will provide that if this Agreement is suspended or terminated, 
the portion of the bond covering Federal lands will be converted to a 
full-cost reclamation bond and made payable only to the United States. 
Prior to termination, DEP will assist OSMRE in obtaining the full-cost 
reclamation bond from the operator for those areas where only Federal 
lands are covered by the bond. If applicable, DEP will advise OSMRE of 
any annual adjustments to the performance and/or penal bond pursuant to 
the State Program.
    Performance and/or penal bonds will be subject to release and 
forfeiture in accordance with the procedures and requirements of the 
State Program. Where coal exploration operations or surface coal mining 
and reclamation operations are conducted on Federal lands, the 
performance and/or penal bond must be released by the State upon 
compliance with all applicable State and Federal requirements and after 
the release is concurred in by OSMRE. OSMRE's concurrence will include 
coordination with the Federal land management agency and any other 
agency with jurisdiction or responsibility over Federal lands affected 
by the coal exploration operation or surface coal mining and 
reclamation operation.
    In the event of forfeiture by an operator of a performance and/or 
penal bond for a coal exploration operation or a surface coal mining 
and reclamation operation on Federal lands covered by this Agreement, 
the State must use funds received from the forfeited bond and, where 
necessary, funds from the West Virginia Special Reclamation Fund and/or 
the Special Reclamation Water Trust Fund, pursuant to W. Va. Code 
section 22-3-11, to ensure that complete reclamation is accomplished in 
accordance with the State Program and the reclamation plan of the 
permit prior to revocation or any modification thereto.
    Submission of a performance and/or penal bond does not satisfy the 
requirements for a Federal lease bond required by 43 CFR Subpart 3474 
or lessee protection bond required in addition to a performance bond, 
in certain circumstances, by section 715 of SMCRA. Where Federal lease 
or lessee protection bonds are required, OSMRE or the appropriate 
Federal agency is responsible for the collection and maintenance of 
such bonds.
    If a Federal lease bond is required as provided by 30 CFR 740.15, 
such bond may be released upon satisfactory compliance with all 
applicable requirements of 43 CFR part 3400 and after the release is 
concurred in by BLM.

Article X: Designating Land Areas Unsuitable for All or Certain Types 
of Surface Coal Mining and Reclamation Operations and Activities and 
Valid Existing Rights (VER) and Compatibility Determinations

A. Unsuitability Petitions

    The authority to designate Federal lands as unsuitable for mining 
pursuant to a 30 CFR part 769 petition is reserved by the Secretary as 
provided by 30 CFR 745.13(a). OSMRE will consider the minimum criteria 
set forth in 30 CFR part 762 when evaluating each petition for 
designating an area as unsuitable for mining. In addition, OSMRE will 
process all requests for designating Federal lands as unsuitable for 
mining or for terminating previous designations in accordance with 30 
CFR part 769.
    When either DEP or OSMRE receives a petition to designate land 
areas unsuitable for all or certain types of

[[Page 43772]]

surface coal mining operations that could impact adjacent Federal or 
non-Federal lands pursuant to section 522(c) of SMCRA, the agency 
receiving the petition will notify the other of its receipt and the 
anticipated schedule for reaching a decision and request and fully 
consider data, information, and recommendations of the other. OSMRE 
will coordinate with the Federal land management agency with 
jurisdiction over the petition area and will solicit comments from the 
agency.

B. Valid Existing Rights Determinations

    The following actions will be taken when requests for 
determinations of VER pursuant to section 522(e) of SMCRA and 30 CFR 
761.11 are received prior to or at the time of submission of a permit 
application that involves surface coal mining and reclamation 
operations and activities:
    For Federal lands within the boundaries of any areas specified 
under section 522(e)(1) of SMCRA and 30 CFR 761.11(a), OSMRE will 
determine whether VER exists for such areas pursuant to 30 CFR 
745.13(o).
    For Federal lands within the boundaries of any national forest 
where proposed operations are prohibited by section 522(e)(2) of SMCRA 
and 30 CFR 761.11(b), OSMRE will make the VER determinations pursuant 
to 30 CFR 745.13(o). OSMRE will process requests for determinations of 
compatibility under section 522(e)(2) of SMCRA and 30 CFR 761.13.
    For private in-holdings within areas protected under 30 CFR 
761.11(a) and SMCRA section 522(e)(1), DEP will process the VER request 
in accordance with the State Program, but use the Federal VER 
definition at 30 CFR 761.5 when making the VER determination.
    For any lands, DEP will determine whether any proposed operation 
will adversely affect any publicly owned park or, in consultation with 
the State Historic Preservation Officer, sites listed on the National 
Register of Historic Places, with respect to the prohibitions or 
limitations of section 522(e)(3) of SMCRA and 30 CFR 761.11(c). DEP 
will make the VER determination for such lands using the approved State 
Program definition of VER. DEP will coordinate with any affected agency 
or agency with jurisdiction over the proposed surface coal mining and 
reclamation operations. In the case that VER is determined not to exist 
under section 522(e)(3) of SMCRA or 30 CFR 761.11(c), no surface coal 
mining operations will be permitted unless jointly approved by DEP and 
the Federal, State or local agency with jurisdiction over the publicly 
owned park or historic place.

C. Compatibility Determinations

    As provided by 30 CFR 740.4(a)(5), the Secretary is responsible for 
the issuance of findings concerning whether there are significant 
recreational, timber, economic or other values that may be incompatible 
with surface coal mining operations incident to underground mining on 
Federal lands within the boundaries of a national forest protected 
pursuant to section 522(e)(2) of SMCRA and 30 CFR 761.11(b). OSMRE will 
process requests for compatibility determinations in accordance with 
the procedures set forth at 30 CFR 761.13.

Article XI: Termination of Cooperative Agreement

    This Agreement may be terminated by the Governor or the Secretary 
under the provisions of 30 CFR 745.15.

Article XII: Reinstatement of Cooperative Agreement

    If this Agreement has been terminated in whole or in part, it may 
be reinstated under the provisions of 30 CFR 745.16.

Article XIII: Amendment of Cooperative Agreement

    This Agreement may be amended by mutual agreement of the Governor 
and the Secretary in accordance with 30 CFR 745.14.

Article XIV: Changes in State or Federal Standards

    The Secretary or the Governor may from time to time promulgate new 
or revised performance standards or reclamation requirements or 
enforcement and administration procedures. Each party will, if it 
determines it to be necessary to keep this Agreement in force, change 
or revise its regulations or request necessary legislative action. Such 
changes will be made under the procedures of 30 CFR part 732 for 
changes to the State Program and under the procedures of sections 501 
and 523 of SMCRA for changes to the Federal lands program.
    DEP and OSMRE will provide each other with copies of any changes to 
their respective laws, rules, regulations or standards pertaining to 
the enforcement and administration of this Agreement.
    Changes in State law or regulations cannot take effect for the 
purposes of this Agreement until they have been approved by OSMRE 
pursuant to 30 CFR 732.17.

Article XV: Changes in Personnel and Organization

    In accordance with 30 CFR part 745, each party to this Agreement 
will notify the other, when necessary, of any changes in personnel, 
organization, and funding or other changes that may affect the 
implementation of this Agreement to ensure coordination of 
responsibilities and to facilitate cooperation.

Article XVI: Reservation of Rights

    As provided by 30 CFR 745.13, this Agreement will not be construed 
as waiving or preventing the assertion of any rights that have not been 
expressly addressed in this Agreement and that the State or the 
Secretary may have under laws other than SMCRA or their regulations 
including, but not limited to, those listed in Appendix A.

    Approved:

David Bernhardt,

Secretary of the Interior

    Dated:

Jim Justice,

Governor of West Virginia

    Dated:

Appendix A

    1. The Federal Land Policy and Management Act, 43 U.S.C. 1701 et 
seq., and implementing regulations.
    2. The Mineral Leasing Act of 1920, 30 U.S.C. 181 et seq., and 
implementing regulations, including 43 CFR part 3400.
    3. The National Environmental Policy Act of 1969, 42 U.S.C. 
4321et seq., and implementing regulations, including 40 CFR part 
1500.
    4. The Endangered Species Act, as amended, 16 U.S.C. 1531 et 
seq., and implementing regulations, including 50 CFR part 402.
    5. The Fish and Wildlife Coordination Act, as amended, 16 U.S.C. 
661et seq.; 48 Stat. 401.
    6. The Bald and Golden Eagle Protection Act of 1940, as amended, 
16 U.S.C. 668-668d, and implementing regulations.
    7. The Migratory Bird Treaty Act, as amended, 16 U.S.C. 701-718h 
et seq.
    8. The National Historic Preservation Act of 1966, 16 U.S.C. 470 
et seq., and implementing regulations, including 36 CFR part 800.
    9. The Clean Air Act, 42 U.S.C. 7401 et seq., and implementing 
regulations.
    10. The Federal Water Pollution Control Act, 33 U.S.C. 1251 et 
seq., and implementing regulations.
    11. The Resource Conservation and Recovery Act of 1976, 42 
U.S.C. 6901 et seq., and implementing regulations.
    12. The Reservoir Salvage Act of 1960, amended by the 
Preservation of Historical and Archaeological Data Act of 1974, 16 
U.S.C. et seq.
    13. Executive Order 11593 (May 13, 1971), Cultural Resource 
Inventories on Federal Lands.
    14. Executive Order 11988 (May 24, 1977), for flood plain 
protection.
    15. Executive Order 11990 (May 24, 1977), for wetlands 
protection.
    16. The Mineral Leasing Act for Acquired Lands, 30 U.S. 351 et 
seq., and implementing regulations.

[[Page 43773]]

    17. The Stock Raising Homestead Act of 1916, 43 U.S.C. 291 et 
seq.
    18. The Archaeological Resources Protection Act of 1979, 16 
U.S.C. 470aa et seq., as amended.
    19. The Constitution of the United States.
    20. Surface Mining Control and Reclamation Act of 1977, 30 
U.S.C. 1201 et seq., as amended.
    21. 30 CFR Chapter VII.
    22. The Constitution of the State of West Virginia.
    23. West Virginia Department of Environmental Protection 
Permanent Regulatory Program at 30 CFR part 948, as amended.
    24. West Virginia Surface Coal Mining and Reclamation Act at 
W.Va. Code section 22-3-1 et seq.
    25. West Virginia Department of Environmental Protection, 
Surface Mining Reclamation Regulations, CSR section 38-2-1 et seq.
    26. The Office of Explosives and Blasting at W.Va. Code section 
22-3A-1 et seq.
    27. The West Virginia Surface Mining Blasting Rule, CSR section 
199-1-1 et seq.

[FR Doc. 2020-14460 Filed 7-17-20; 8:45 am]
BILLING CODE 4310-05-P