Virginia Regulatory Program

DEPARTMENT OF THE INTERIOR

30 CFR Part 946

[VA-105-FOR]

Virginia Regulatory Program

AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM),

Interior.

ACTION: Final rule; approval of amendment.

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SUMMARY: OSM is approving a proposed amendment to the Virginia

permanent regulatory program (hereinafter referred to as the Virginia

program) under the Surface Mining Control and Reclamation Act of 1977

(SMCRA). The amendment consists of five explanatory statements written

to clarify and assist the implementation of, and compliance with,

recent changes to Secs. 480-03-19.816/817.102(e) of the Virginia

program relative to the disposal of coal processing waste and

underground development waste in mined-out areas. The amendment is

intended to address a required program amendment at 30 CFR 946.16(a).

EFFECTIVE DATE: May 29, 1996.

FOR FURTHER INFORMATION CONTACT:

Mr. Robert A. Penn, Director, Big Stone Gap Field Office, Office of

Surface Mining Reclamation and Enforcement, 1941 Neeley Road, Suite

201, Compartment 116, Big Stone Gap, Virginia 24219, Telephone: (703)

523-4303.

SUPPLEMENTARY INFORMATION:

I. Background on the Virginia Program.

II. Submission of the Amendment.

III. Director's Findings.

IV. Summary and Disposition of Comments.

V. Director's Decision.

VI. Procedural Determination.

I. Background on the Virginia Program

SMCRA was passed in 1977 to address environmental and safety

problems associated with coal mining. Under SMCRA, OSM works with

States to ensure that coal mines are operated in a manner that protects

citizens and the environment during mining, that the land is restored

to beneficial use following mining, and that the effects of past mining

at abandoned coal mines are mitigated.

Many coal-producing States, including Virginia, have sought and

obtained approval from the Secretary of the Interior to carry out

SMCRA's requirements within their borders. In becoming the primary

enforces of SMCRA, these ``primacy'' States accept a shared

responsibility with OSM to achieve the goals of the Act. Such States

join with OSM in a shared commitment to the protection of citizens from

abusive mining practices, to be responsive to their concerns, and to

allow them full access to information needed to evaluate the effects of

mining on their health, safety, general welfare, and property. This

commitment also recognizes the need for clear, fair, and consistently

applied policies that are not unnecessarily burdensome to the coal

industry--producers of an important sources of our Nation's energy.

Under SMCRA, OSM sets minimum regulatory and reclamation standards.

Each primacy State ensures that coal mines are operated and reclaimed

in accordance with the standards in its approved State program. The

States serve as the front-line authorities for implementation and

enforcement of SMCRA, while OSM maintains a State performance

evaluation role and provides funding and technical assistance to States

to carry out their approved programs. OSM also is responsible for

taking direct

[[Page 26837]]

enforcement action in a primacy State, if needed, to protect the public

in cases of imminent harm or, following appropriate notice to the

State, when a State acts in an arbitrary and capricious manner in not

taking needed enforcement actions required under its approved

regulatory program.

Currently, there are 24 primacy states that administer and enforce

regulatory programs under SMCRA. These states may amend their programs,

with OSM approval, at any time so long as they remain no less effective

than Federal regulatory requirements. In addition, whenever SMCRA or

implementing Federal regulations are revised, OSM is required to notify

the States of the changes so that they can revise their programs

accordingly to remain no less effective than the Federal requirements.

On December 15, 1981, the Secretary of the Interior conditionally

approved the Virginia program. Background information on the Virginia

program including the Secretary's findings, the disposition of

comments, and the conditions of approval can be found in the December

15, 1981, Federal Register (46 FR 61085-61115). Subsequent actions

concerning the conditions of approval and program amendments are

identified at 30 CFR 946.11, 946.12, 946.13, 946.15, and 946.16.

II. Submission of the Amendment

By letter dated October 31, 1994 (Administrative Record No. VA-

839), Virginia proposed to amend section 480-03-19.816/817.102(e) to

clarify the Virginia regulations that are applicable when coal

processing waste and underground development waste is used as backfill

material for mined-out areas. The amendment was submitted to settle

interpretational differences between Virginia and OSM relative to how

the coal mine waste regulations apply to waste materials placed in

backfills.

Virginia's submittal of the amendment to section 480-03-19.816/

817.102(e) was accompanied by a detailed explanation of the intended

implementation and scope of the proposed amendment. OSM approved the

amendment on August 8, 1995 (60 FR 40271) to the extent that the

amendments are implemented as explained by Virginia in its October 31,

1994, submittal letter. In addition, OSM also required (at 30 CFR

946.16(a)) that Virginia further clarify the implementation of the

changes by amending the Virginia program as follows:

(1) Define the term ``suitable;''

(2) Add a requirement to the Virginia rules to explicitly require

the determination of the location of seeps, springs, or other

discharges in the designing of a backfill;

(3) Add to 480-03-19.773.17 a specific requirement that a permit

condition be imposed requiring a quarterly analysis of coal mine waste

as it is placed in a refuse pile or in an area being backfilled.

(4) Define the term ``small'' to mean that there are no channeled

flows, that during storm events there is only sheet flow, and that no

variance would be approved if the drainage area above the pile on any

point exceeds 500 feet, measured along the slope; (5) Add a requirement

that whenever coal refuse is placed on preexisting benches for the

purpose of returning the benches to approximate original contour (AOC),

the performance standards for the placement of excess spoil on

preexisting benches will be followed.

By letter dated October 13, 1995 (Administrative Record No. VA-

865), Virginia submitted its response to the required amendments at 30

CFR 946.16(a). The amendment consists of five statements that are

attached to a letter to be sent to coal operators, consultants,

Virginia Division of Mined Land Reclamation (DMLR) personnel, and other

interested parties. The five statements are intended to clarify the

intended implementation and scope of the recently approved amendments

to section 480-03-19.816/817.102(e).

The proposed amendment was published in the November 27, 1995,

Federal Register (60 FR 58320), and in the same notice, OSM opened the

public comment period and provided opportunity for a public hearing on

the adequacy of the proposed amendment. The comment period closed on

December 27, 1995. There were no requests for a public hearing, so no

hearing was held.

III. Director's Findings

Set forth below, pursuant to SMCRA and the Federal regulations at

30 CFR 732.15 and 732.17, are the Director's findings concerning the

proposed amendment to the Virginia program.

I. Clarification of the Term ``Suitable''

The State submitted the following statement:

The Department of Mines, Minerals, and Energy (DMME) has not

promulgated a regulatory definition for the term ``suitable'' as

used at 480-03-19.816/817.102(e) since the ordinary usage (Webster-

satisfactory for a use or purpose) is intended. DMME will consider

material suitable provided it is satisfactory for the purpose of

meeting the Virginia program performance standards for each site

specific circumstance. For an example, the physical cohesive

property of a given waste material under specific site conditions

will be considered suitable provided the required (1.3) static

safety factor can be achieved and landslides prevented [see 480-03-

19.816/817.102(a) and (f)]. Waste material is considered suitable

provided the host site conditions, the material's chemical and

physical characteristics, and the disposal techniques collectively

demonstrate compliance with the Virginia program performance

standards, including sections 480-03-19-816/817.41, 480-03-19.816/

817.74, 480-03-19.816/817.81, 480-03-19.816/817.95, 480-03-19.816/

817.97, 480-03-19.816/817.111-116, and 480-03-19.816/817.133.

The Director finds that the DMLS's statement adequately clarifies

how the State interprets and will implement the term ``suitable'' in

the Virginia program. That is, materials will be considered suitable,

if the DMME determines that the use of those materials will not result

in the violation of the Virginia approved performance standards.

Therefore, the Director finds that the required amendment at 30 CFR

946.16(a)(1) is satisfied and can be removed.

2. Seeps, Springs, or Other Discharges in the Backfill

The State submitted the following statement:

The Division of Mined Land Reclamation (DMLR) finds it necessary

for the applicant to determine and identify in the application the

location of seeps, springs, or other discharges in any area proposed

for backfilling with coal mine waste. Such information is crucial to

the applicant's site selection and backfill design as well as to

DMLR's environmental impact analysis. DMLR has initiated the process

to revise its regulations to be more specific with regard to seeps

and springs in such backfills. In the meantime, DMLR interprets 480-

03-19.780.21 (f) and (h) and 480-03-19.784.14 (e) and (g) as

authority for this requirement.

The Federal regulations at 30 CFR 780.21(f) and 784.14(e)

concerning probable hydrologic consequences (PHC) determination provide

the findings shall be made on whether adverse impacts may occur to the

hydrologic balance, and whether acid-forming or toxic-forming materials

are present that could result in contamination of surface or ground

waters. In addition, 30 CFR 780.21(h) and 784.14(g) provide that an

application shall contain a hydrologic reclamation plan that includes

the measures to be taken to avoid acid or toxic drainage.

The DMLR has clarified that a permit application should include the

location of seeps, springs, or other discharges is crucial to the

applicant's site selection and backfill design as well as to the DMLR's

environmental impact analysis. The DMLR also acknowledged that it has

the authority under Sec. 480-03-

[[Page 26838]]

19.780.21 (f) and (h) and 784.14 (e) and (g) to require such

information. In addition, the DMLR will revise its regulations to more

clearly require information regarding springs and seeps.

The Director finds that the DMLR's statement adequately explains

the State program concerning the identification of the location of

seeps, springs, and other discharges in any area proposed for

backfilling with coal mine waste, and that the Virginia program has the

authority to require such information. Therefore, the Director finds

that the required amendment at 30 CFR 946.16(a)(2) is satisfied and can

be removed.

3. Permit Condition/Quarterly Analysis-Clarification

The State submitted the following statement:

The Virginia regulations at 480-03-19.773.17(b) provide

authority for DMLR to impose permit conditions in addition to those

mandated by this section. When the physical or chemical

characteristics of coal mine waste used as backfill material are

subject to change, DMLR will specify a condition in the permit

approval document requiring the appropriate sampling and analysis

necessary to ensure continued compliance with the performance

standards. (Examples of circumstances in which DMLR requires

periodic analysis of coal mine refuse, and/or backfill include, but

is not limited to: refuse produced by preparation plant serving

several operations; refuse produced over a large areal extent at a

single operation; refuse produced by several operations; and refuse

of varying quality produced at several locations within one

operation.)

The Director finds that the DMLR's statement clearly acknowledges

that the regulatory authority will impose a permit condition requiring

sampling of the coal mine waste material whenever the physical or

chemical characteristics of that material are subject to changes. In

addition, the DMLR has provided some specific examples that clarify

typical circumstances under which the DMLR will apply permit conditions

to require analysis of coal mine waste that is placed in the backfill

to ensure continued compliance with the performance standards. The DMLR

also has stated that it interprets Sec. 480-03-19.780/784.22(c) as

authority to require periodic testing as necessary to ensure compliance

with the hydrologic protection and other performance standards.

As noted above, the Director had required Virginia to amend its

program by adding a provision requiring quarterly analysis of coal mine

waste material as it is placed in backfills or refuse piles. The basis

for this required amendment was Virginia's statement that, as a matter

of practice, it already imposed permit conditions pursuant to 480-03-

19.773.17 requiring a quarterly analysis of coal mine waste. Because

the Director was concerned that this permit condition requirement would

not be enforceable, he required Virginia to add the requirement to its

program. See 60 FR 40271, 40274, August 8, 1995. In its submittal of

October 13, 1995 (Administrative Record No. VA-865), Virginia stated

that it had chosen a more flexible permit condition requirement, based

on the type of coal mine waste material involved in each particular

instance. The Director did not conclude in the August 8, 1995, Federal

Register notice, nor does he conclude now, that quarterly analysis of

coal mine waste material is required in all instances by SMCRA or its

implementing regulations. Rather, the Director's primary concern was

that Virginia have the ability to enforce the requirement of an added

permit condition. Moreover, the Director now agrees with Virginia that

the State regulatory authority should have the flexibility to impose

permit conditions requiring ``appropriate'' sampling and analysis to

ensure continued compliance with all applicable performance standards,

particularly where the chemical or physical characteristics of the coal

mine waste material are subject to change. ``Appropriate'' analysis

may, in some instances, mean testing the material more, or less

frequently than on a quarterly basis. Because Virginia has adequately

incorporated into the Virginia program its permit condition

requirements with respect to coal mine waste, the Director is satisfied

that these requirements are now enforceable. Therefore, the Director

finds that 30 CFR 946.16(a)(3) is satisfied, and can be removed.

4. ``Small Area''--Clarification

The State submitted the following statement:

At 480-03-19.816/817.102(e), the Virginia regulations provide

that a variance to the requirement at 480-03-19.816/817.83(a)(2) may

be approved by DMLR provided ``the applicant demonstrates that the

area above the refuse pile is small and that appropriate measures

will be taken to direct or convey runoff across the surface area of

the pile in a controlled manner.

DMLR intends to consider areas small provided the drainage area

is 500 feet or less as measured along the slope. However, DMLR will

grant such a variance only when there are no channeled flows, and if

during storm events, there is only sheet flow.

The Director finds that the DMLR's statement adequately explains

the definition of ``small'' relative to uncontrolled drainage above a

backfill in accordance with the required amendments at 30 CFR

946.16(a)(4). 39 CFR946.16(a)(4) is, therefore, removed.

5. Preexisting Benches--Clarification

DMLR will approve an application to place coal refuse on

preexisting benches for the purpose of returning the benches to the

approximate original contour provided the performance standard for

the placement of excess spoil on preexisting benches will be

followed. The preexisting bench standard are found at 480-03-19.816/

817.74.

The Director finds the DMLR's statement adequately clarifies the

applicability of the performance standards for the placement of excess

spoil on pre-existing benches in accordance with the required amendment

at 30 CFR 946.16(a)(5). 30 CFR 946.16(a)(5) is, therefore, removed.

IV. Summary and Disposition of Comments

Federal Agency Comments

Pursuant to section 503(b) of SMCRA and 30 CFR 732.17(h)(11)(i),

comments were solicited from various interested Federal agencies. The

U.S. Fish and Wildlife Service responded (Administrative Record No. VA-

868) but offered no comments on this amendment. The U.S. Department of

Labor, Mine Safety and Health Administration responded (Administrative

Record No. VA-867) that the amendments are deemed appropriate since

there appears to be no conflict with MSHA regulations. The U.S.

Department of Agriculture, Natural Resources Conservation Service

responded (Administrative Record No. VA-866) and stated that the

clarifications should be accepted.

Public Comments

A public comment period and opportunity to request a public hearing

was announced in the November 27, 1995, Federal Register (60 FR 58320).

The comment period closed on December 27, 1995. No comments were

received and no one requested an opportunity to testify at the

scheduled public hearing so no hearing was held.

Environmental Protection Agency (EPA)

Under 30 CFR 732.17(h)(11)(ii), the Director is required to obtain

the written concurrence of the Administrator of the EPA with the

respect to any provisions of a State program amendment that relate to

air or water quality standards promulgated under the authority of the

Clean Water Act (33 U.S.C. 1251 et seq.)

[[Page 26839]]

or the Clean Air Act (42 U.S.C. 7401 et seq.). The Director has

determined that this amendment contains no provisions in these

categories and that EPA's concurrence is not required.

Pursuant to 732.17(h)(11)(i), OSM solicited comments on the

proposed amendment from EPA. EPA responded on February 1, 1996

(Administrative Record No. VA-869) and stated that the amendment is

consistent with regulations under the Clean Water Act and offered no

additional comments.

V. Director's Decision

Based on the findings above, the Director is approving Virginia's

amendment concerning coal refuse disposal as submitted by Virginia on

October 13, 1995.

The Federal regulations at 30 CFR Part 946 codifying decisions

concerning the Virginia program are being amended to implement this

decision. This final rule is being made effective immediately to

expedite the State program amendment process and to encourage States to

bring their programs into conformity with the Federal standards without

undue delay. Consistency of State and Federal standards is required by

SMCRA.

VI. Procedural Determinations

Executive Order 12866

This rule is exempted from review by the Office of Management and

Budget (OMB) under Executive Order 12866 (Regulatory Planning and

Review).

Executive Order 12988

The Department of the Interior has conducted the reviews required

by section 3 of Executive Order 12778 (Civil Justice Reform) and has

determined that, to the extent allowed by law, this rule meets the

applicable standards of subsections (a) and (b) of that section.

However, these standards are not applicable to the actual language of

State regulatory programs and program amendments since each such

program is drafted and promulgated by a specific State, not by OSM.

Under sections 503 and 505 of SMCRA (30 U.S.C. 1253 and 1255) and 30

CFR 730.11, 732.15 and 732.17(h)(10), decisions on proposed State

regulatory programs and program amendments submitted by the States must

be based solely on a determination of whether the submittal is

consistent with SMCRA and its implementing Federal regulations and

whether the other requirements of 30 CFR Parts 730, 731, and 732 have

been met.

National Environmental Policy Act

No environmental impact statement is required for this rule since

section 702(d) of SMCRA [30 U.S.C. 1292(d)] provides that agency

decisions on proposed State regulatory program provisions do not

constitute 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 contain information collection requirements that

require approval by OMB under the Paperwork Reduction Act (44 U.S.C.

3507 et seq.).

Regulatory Flexibility Act

The Department of the Interior has determined that 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

counterpart 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. Accordingly, this rule will ensure that existing requirements

previously promulgated by OSM will be implemented by the State. 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 counterpart Federal regulations.

Unfunded Mandates

This rule will not impose a cost of $100 million or more in any

given year on any governmental entity or the private sector.

List of Subjects in 30 CFR Part 946

Intergovernmental relations, Surface mining, Underground mining.

Dated: May 14, 1996.

Michael K. Robinson,

Acting Regional Director, Appalachian Regional Coordinating Center.

For the reasons set out in the preamble, Title 30, Chapter VII,

Subchapter T of the Code of Federal Regulations is amended as set forth

below:

PART 946--VIRGINIA

1. The authority citation for Part 946 continues to read as

follows:

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

2. In Sec. 946.15, paragraph (jj) is added to read as follows:

Sec. 946.15 Approval of regulatory program amendments.

* * * * *

(jj) The following amendment to the Virginia program at 480-03-

19.816/817.102(e) concerning coal refuse disposal as submitted to OSM

on October 13, 1995, is approved effective May 29, 1996:

Sec. 946.16 [Amended]

3. In Sec. 946.16, paragraph (a) is removed and reserved.

[FR Doc. 96-13268 Filed 5-28-96; 8:45 am]

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