West Virginia Regulatory Program, 64801-64805 [2024-17334]

Agencies

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

[Federal Register Volume 89, Number 153 (Thursday, August 8, 2024)]
[Rules and Regulations]
[Pages 64801-64805]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-17334]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 948

[SATS No. WV-127-FOR; Docket No. OSM-2020-0003; S1D1S SS08011000 
SX064A000 201S180110; S2D2S SS08011000 SX064A000 20XS501520]


West Virginia Regulatory Program

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

ACTION: Final rule.

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SUMMARY: We, the Office of Surface Mining Reclamation and Enforcement 
(OSMRE), are approving an amendment to the West Virginia regulatory 
program (the West Virginia program) under the Surface Mining Control 
and Reclamation Act of 1977 (SMCRA or the Act). This amendment revises 
West Virginia's regulatory program provisions related to entities 
authorized to issue surety bonds and the repair and compensation of 
damage resulting from subsidence.

DATES: Effective September 9, 2024.

FOR FURTHER INFORMATION CONTACT: Mr. Michael Castle, Acting Director, 
Charleston Field Office Telephone: (304) 347-7158. Email: [email protected].

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

    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 approved State program includes, among other things, State laws and 
regulations that govern surface coal mining and reclamation operations 
in accordance with the Act and consistent with the Federal regulations. 
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 additional background

[[Page 64802]]

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 5, 2020 (Administrative Record No. 1640), West 
Virginia sent us an amendment to its program under SMCRA (30 U.S.C. 
1201 et seq.), docketed as WV-127-FOR. The amendment consists of 
revisions made by West Virginia House Bill 4217 (HB 4217), which was 
signed by the Governor on March 25, 2020. HB 4217 seeks to modify 
language in West Virginia's regulations relating to companies that 
execute surety bonds and modify language relating to the correction of 
material damage from subsidence to a landowner's structures or 
facilities.
    We announced receipt of the proposed amendment in the December 16, 
2020, Federal Register (85 FR 81436). In the same document, we opened 
the public comment period and provided an opportunity for a public 
hearing or meeting on the adequacy of the amendment. Due to the COVID-
19 restrictions, a virtual public hearing was held on January 14, 2021. 
The public comment period ended on January 15, 2021.

III. OSMRE's Findings

    The following are the findings we made concerning the amendment 
under SMCRA and the Federal regulations at 30 CFR 732.15 and 732.17. We 
are approving the amendment as described below. The full text of the 
program amendment is available for review at https://www.regulations.gov.

A. Surety Bonds--CSR 38-2-11.3.a.3

    West Virginia seeks to revise CSR 38-2-11.3.a.3, which requires any 
company that executes surety bonds in the State to either: (i) be 
included on the United States Department of the Treasury's (Treasury 
Department) listing of approved sureties; or (ii) to submit proof to 
the West Virginia Department of Environmental Protection (WVDEP) that 
it holds a valid license issued by the West Virginia Insurance 
Commissioner and meets certain reporting obligations. The existing 
provision further requires any company not included on the Treasury 
Department's listing of approved sureties to diligently pursue 
application for such listing, submit proof of its efforts, and become 
listed within 4 years. The revision would specify that only those 
companies electing to qualify under the first part must diligently 
pursue application for listing with the Treasury Department if they do 
not currently possess that certification. In other words, companies 
that elect to submit proof of a valid license from the West Virginia 
Insurance Commissioner and meet certain reporting obligations would no 
longer be required to diligently pursue application for listing or be 
listed with the Treasury Department.
    OSMRE Finding: West Virginia's existing requirement has no 
counterpart under SMCRA or the Federal implementing regulations. 
Section 509(b) of SMCRA, 30 U.S.C. 1259(b), requires that a coal mining 
operator execute a surety bond with a corporate surety licensed to do 
business in the State where the operation is located. See also 30 CFR 
800.20(a). West Virginia first began requiring surety companies to hold 
a current certificate of authority from the Treasury Department in 
2001. See 68 FR 67035, 67038 (Dec. 1, 2003). WVDEP stated at the time 
that the requirement ``was adopted to address concerns about the 
financial solvency of sureties providing reclamation bonds in West 
Virginia. The WVDEP did not have the necessary resources or expertise 
to regularly and timely monitor the financial condition of sureties 
doing business in West Virginia.'' 70 FR 77321, 77321-22 (Dec. 30, 
2005). West Virginia then modified the requirement in 2005 to allow 
surety companies to diligently pursue a certificate from the Treasury 
Department, thereby removing a barrier to sureties that were in good 
financial condition but did not yet have the Treasury Department 
certificate, from providing reclamation bonds in West Virginia. West 
Virginia filed an emergency rule with the West Virginia Secretary of 
State on September 21, 2005, which the Secretary of State approved on 
an emergency basis on October 11, 2005. WVDEP also filed a legislative 
rule containing the same language with the Secretary of State on 
September 21, 2005 (Administrative Record No. WV-1442). WVDEP provided 
OSMRE with a copy of that proposed rule for an informal review, and we 
recommended revisions. West Virginia adopted our suggested revisions, 
and we approved the amendment on December 30, 2005 (70 FR 77321).
    Since 2005, WVDEP has learned that under W.Va. Code sec. 33-4-14, 
corporate sureties must annually submit to the West Virginia Insurance 
Commissioner a true quarterly statement of their financial condition, 
transactions, and affairs as of March 31, June 30, and September 30 in 
order to do business in West Virginia. As a consequence of the current 
amendment, WVDEP will be relying on the expertise and review of the 
West Virginia Insurance Commission, because it is responsible for the 
licensing, financial monitoring, and financial examination of the 
companies admitted to do business in West Virginia. As amended, we find 
the revision to be no less effective than the Federal regulation at 30 
CFR 800.20(a), which states that a surety bond shall be executed by the 
operator and a corporate surety licensed to do business in the State 
where the operation is located, and no less stringent than section 
509(b) of SMCRA. Therefore, we approve this amendment.

B. Owner Compensation--CSR 38-2-16.2.c.2

    West Virginia seeks to revise CSR 38-2-16.2.c.2 relating to the 
correction of material damage to any structures or facilities resulting 
from subsidence. The existing regulation requires operators to either 
repair the damage or compensate the owner for the full amount of 
diminution in value resulting from the subsidence. West Virginia 
proposes to revise this provision to state explicitly that the choice 
of remedy is the owners' and to replace the option of repair with an 
option to be compensated in the amount of the repair, subject to the 
limitation that the compensation not exceed one hundred and twenty 
percent (120%) of the pre-mining value of the structure or facility. 
The proposal also inserts new language clarifying that this section 
neither creates additional property rights nor can it be construed as 
vesting in WVDEP's secretary the jurisdiction to adjudicate property 
rights disputes.
    OSMRE Finding: Currently, the language of West Virginia's 
requirement at CSR 38-2-16.2.c.2 is substantively identical to section 
720(a)(1) of SMCRA, 30 U.S.C. 1309a(a)(1), and 30 CFR 817.121(c)(2). 
Section 720(a)(1) of SMCRA states that underground coal mining 
operations must promptly repair, or compensate for, material damage 
resulting from subsidence caused to any occupied residential dwelling 
and related structures and any noncommercial buildings. Section 
720(a)(1) further elaborates that repair includes rehabilitation, 
restoration, or replacement; that compensation must be in the full 
amount of the diminution in value resulting from the subsidence; and 
that compensation may be accomplished by the purchase, prior to

[[Page 64803]]

mining, of a noncancellable premium-prepaid insurance policy.
    OSMRE revised its subsidence control regulations in 1995 to 
implement the Energy Policy Act of 1992 (the Energy Policy Act), 
enacted on October 24, 1992, which amended SMCRA by adding section 720. 
60 FR 16722 (Mar. 31, 1995). Section 720(a) of SMCRA itself 
specifically focuses on the operators' obligations, providing, in 
relevant part: ``Underground coal mining operations . . . shall comply 
with each of the following requirements: (1) Promptly repair, or 
compensate for, material damage resulting from subsidence. . . .'' 30 
U.S.C. 1309a(a). The final regulation did likewise, providing in 
relevant part: ``The permittee must promptly repair, or compensate the 
owner for, material damage resulting from subsidence. . . .'' 30 CFR 
817.121(c)(2). These provisions only reference the owners of materially 
damaged structures with respect to how they must be compensated should 
compensation occur in lieu of repair. While the preamble to our 1995 
final rule did not explicitly state that the option to repair or 
replace is the operator's, that interpretation is evident in our 
discussion of 30 CFR 817.121(c)(5) (Adjustment of bond amount for 
subsidence damage), in which we state: ``Further, the final rule 
provides that if the permittee intends to repair the damage, the 
required additional bond would amount to the estimated cost of the 
repairs. If the permittee intends to compensate the owner, the 
additional bond would amount to the diminution in value of the 
protected land or structures.'' 60 FR at 16741. This reading is also 
consistent with the preamble to our initial program regulations, 
written before the Energy Policy Act was enacted, which indicated the 
operator had the choice between repair and compensation. See 44 FR 
14902, 15275 (March 13, 1979) (explaining that ``insurance is one 
alternative from which operators can choose to meet the requirements of 
this Section,'' and further explaining the elimination of landowner 
``consultation'' from the proposed regulation in favor of options for 
the operator and protections for the surface owner).
    OSMRE has approved alternatives to the options provided under 
SMCRA, including Pennsylvania's omission of compensation for the 
decrease in value of the structure in favor of compensation for the 
reasonable cost of repair or reasonable cost of replacement. See 66 FR 
67010, 67020, 67037 (Dec. 27, 2001). As OSMRE acknowledged in its 2001 
approval of Pennsylvania's provisions, and as one commenter to this 
amendment points out, the cost of repair or replacement may in some 
cases greatly exceed the diminution in the structure or facility's 
value. (See 66 FR at 67020). However, as discussed above, section 
720(a) of SMCRA allows the operator to choose the remedy. Under most 
circumstances, an operator would be expected to, and is only required 
to, choose the remedy with the lesser cost. In other words, under 
SMCRA, if the cost to repair or replace a structure far exceeds the 
pre-mining value of the structure, a mining operator who materially 
damages the structure need only compensate the owner for the loss in 
value. OSMRE's 2001 approval of Pennsylvania's provisions is 
consistent. Pennsylvania's provisions do not require compensation for 
repair or replacement at any cost but instead only require compensation 
for ``reasonable'' cost of repair or ``reasonable'' cost of 
replacement. The operator's option to fulfill the requirement by 
obtaining a premium-prepaid insurance policy is also evidence that the 
operator's liability is not without limit.
    In West Virginia, if the cost of repair or replacement exceeds 120% 
of the pre-mining value of the structure, the operator retains the 
alternative option to compensate the owner for the loss in value rather 
than pursue repair or replacement. By allowing the landowner to choose 
the greater compensation that would otherwise be available under 
section 720(a)(1) of SMCRA, though not without limit, West Virginia's 
proposed amendment is not less stringent than SMCRA nor less effective 
than 30 CFR 817.121, and, therefore, we are approving it. We are also 
approving the revision clarifying that CSR 38-2-16.2.c.2 does not 
create additional property rights or vest in the WVDEP Secretary the 
jurisdiction to adjudicate property rights. Nothing in SMCRA creates 
property rights or vests in, or requires, any State regulatory 
authority to adjudicate property rights, which are typically 
adjudicated in State court.

IV. Summary and Disposition of Comments

Public Comments

    On December 16, 2020, we published a Federal Register notice (85 FR 
81436) (Administrative Record Number 1652) and requested comments on 
the proposed revisions to the program. We received comments from West 
Virginia Coal Association (WVCA) by hardcopy and one comment by a 
citizen through a public meeting held virtually on January 14, 2022. 
These comments are summarized and addressed below.
    A. WVCA stated in its letter that the plain language of the Federal 
regulations make clear that the operator decides whether to repair a 
structure or facility or pay compensation in the amount of the 
diminution in value. WVCA traced much of the regulatory history of our 
regulation at 30 CFR 817.121 from 1979 to present in support of its 
assertion. WVCA asserts that the current amendment, which gives the 
surface landowner the power to choose the remedy, makes CSR 38-2-
16.2.c.2 more stringent than the Federal requirement and strikes a fair 
and equitable balance between common law property rights and the duty 
to protect surface owners from the potentially adverse impacts of coal 
extraction.
    OSMRE Response: Because the comments support the approval of the 
amendment, a position with which OSMRE agrees, we are making no 
response. A discussion of our findings is in Section III.B., above.
    B. WVCA stated that the revision to CSR 38-2-11.3.a.3 makes this 
regulation functionally identical to the corresponding provision of the 
Federal regulations and supports its approval.
    OSMRE Response: Because the comments support the approval of the 
amendment, a position with which OSMRE agrees, we are making no 
response. A discussion of our findings is in section III.A., above.
    C. A commenter stated that the rights of the surface and mineral 
owners and other persons with legal interest in the land should be 
adequately protected. The commenter noted that CSR 38-2-16.2.c.2 is 
similar, if not verbatim, to the correlating Federal regulation and 
asserted that under these provisions, if a monetary settlement cannot 
be reached, the surface owner can require the coal operator to repair 
the structures or facilities without a stated restriction as to cost. 
The commenter argued that eliminating the operator's obligation to 
repair the structure or facility and placing a limit on the amount of 
compensation for repair is inequitable due to the variability and 
difficulty of appraising the value of certain structures and 
facilities, including homes on different acreages, barns, utility 
buildings, and bridges that allow access to the property. The commenter 
stated that this has led to scenarios where the cost of repair greatly 
exceeded 120% of the pre-mining value of the structure or facility.
    OSMRE Response: While we acknowledge that under certain 
circumstances the cost to repair a structure or facility could exceed 
120%

[[Page 64804]]

of both the pre-mining value and the diminution in value, we disagree 
that the Federal program allows the surface landowner to require repair 
without any stated restriction as to cost. We have never interpreted 
section 720(a)(1) to require an operator to repair a structure or 
facility at any cost, as evidenced by the regulatory history of 30 CFR 
817.121 and the operator's option under section 720(a)(1) to fulfill 
this requirement with a premium-prepaid insurance policy. We agree that 
variability and difficulties exist in the process of appraising the 
value of structures and facilities, but operators and landowners that 
disagree over those issues may seek resolution in a court with 
jurisdiction to adjudicate them.

Federal Agency Comments

    On May 5, 2020 (Administrative Record No. WV-1646), 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. We did not receive any comments.

Environmental Protection Agency (EPA) Concurrence and Comments

    Under 30 CFR 732.17(h)(11)(ii), we are required to obtain 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.). OSMRE determined that none of the proposed State 
revisions pertained to air or water quality standards; therefore, EPA's 
concurrence was not requested on this amendment. EPA did not respond 
with any comments to this amendment.

State Historical Preservation Officer (SHPO) and the Advisory Council 
on Historic Preservation (ACHP)

    Under 30 CFR 732.17(h)(4), we are required to request comments from 
the SHPO and ACHP on amendments that may have an effect on historic 
properties. On May 5, 2020, we requested comments on West Virginia's 
amendment (Administrative Record No. 1646). We did not receive comments 
from the SHPO or ACHP.

V. OSMRE's Decision

    Based on the above findings, we are approving the West Virginia 
amendment that was submitted on May 5, 2020 (Administrative Record No. 
1640). 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 (5 U.S.C. 533), 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, Executive Order 
13563--Improving Regulation and Regulatory Review, and Executive Order 
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 (OMB Memo M-94-
3), 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 the amendment that the State of West Virginia drafted.

Executive Order 13132--Federalism

    This rule has potential Federalism implications as defined under 
section 1(a) of Executive Order 13132. Executive Order 13132 directs 
agencies to ``grant the States the maximum administrative discretion 
possible'' with respect to Federal statutes and regulations 
administered by the States. West Virginia, through its approved 
regulatory program, implements and administers SMCRA and its 
implementing regulations at the State level. This rule approves an 
amendment to the West Virginia program submitted and drafted by the 
State, and thus is consistent with the direction to provide maximum 
administrative discretion to States.

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

    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 other Tribal lands and 
it does not affect the regulation of activities on Indian lands or 
other Tribal lands. Indian lands under SMCRA are regulated 
independently under the applicable approved Federal Indian 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 identify and engage appropriate Tribal 
stakeholders to devise a constructive approach for consulting on these 
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

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(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.

National Environmental Policy Act

    Consistent with sections 501(a) and 702(d) of SMCRA (30 U.S.C. 
1251(a) and 1292(d), respectively) and the U.S. Department of the 
Interior Departmental Manual, part 516, section 13.5(A), State program 
amendments are not major Federal actions within the meaning of section 
102(2)(C) of the National Environmental Policy Act (42 U.S.C. 
4332(2)(C).

Paperwork Reduction Act

    This rule does not include requests and requirements of an 
individual, partnership, or corporation to obtain information and 
report it to a Federal agency. As this rule does not contain 
information collection requirements, a submission to the Office of 
Management and Budget under the Paperwork Reduction Act (44 U.S.C. 3501 
et seq.) is not required.

Regulatory Flexibility Act

    This rule will not have a significant economic impact on a 
substantial number of small entities under the Regulatory Flexibility 
Act (5 U.S.C. 601 et seq.). The State submittal, which is the subject 
of this rule, is based upon 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 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 948.15 is amended in the table by adding a new entry in 
chronological order by ``Date of final publication'' to read as 
follows:


Sec.  948.15  Approval of West Virginia regulatory program amendment.

* * * * *

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   Original amendment submission date      Date of final publication              Citation/description
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
May 5, 2020.............................  August 8, 2024.............  11.3.a.3--(Surety Bonds; quarterly
                                                                        statements; corporate surety licensed in
                                                                        the State.)
                                                                       16.2.c.2--(Owner Compensation; repair)
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[FR Doc. 2024-17334 Filed 8-7-24; 8:45 am]
BILLING CODE 4310-05-P