Virginia Regulatory Program

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 946

[VA-107-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 proposed amendment consists of statutory changes contained

in Virginia House Bill 706 and the implementing regulations, both of

which address sudden release of accumulated water from underground coal

mine voids. The amendment is intended to improve the effectiveness of

the Virginia program.

EFFECTIVE DATES: August 19, 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: (540) 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 Determinations.

I. Background on the Virginia Program

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 April 17, 1996 (Administrative Record No. VA-876),

Virginia submitted amendments to Sec. 45.1-243 of the Code of Virginia

contained in Virginia House Bill 706, and concerning the sudden release

of accumulated water from underground coal mine voids. Virginia also

submitted the proposed implementing regulations at Sec. 480-03-

19.784.14 concerning hydrologic information for reclamation and

operations plans, and Sec. 480-03-19.817.41 concerning performance

standards for hydrologic balance protection.

The proposed amendment was published in the May 3, 1996, Federal

Register (61 FR 19885), 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 June

3, 1996.

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.

The amendments proposed by Virginia are as follows:

1. Sec. 45.1-243 of the Code of Virginia is amended by adding a new

subsection to read as follows:

B. The Director's regulations shall require that permit applicants

submit hydrologic reclamation plans that include measures that will be

utilized to prevent the sudden release of accumulated water from

underground workings.

2. Sec. 480-03-19.784.14(g) of the Virginia regulations is amended

to add

[[Page 42789]]

the requirement that the hydrologic reclamation plan shall also include

identification of the measures to be taken to prevent the sudden

release of accumulated water from the underground workings.

3. Sec. 480-03-19.817.41(i) is amended by adding new subparagraph

(3) to read as follows:

(i)(3) Except where surface entries and accesses to underground

workings are located pursuant to (i)(1) of this Section, an unmined

barrier of coal shall be left in place where the coal seam dips toward

the land surface. The unmined barrier and associated overburden shall

be designed to prevent the sudden release of water that may accumulate

in the underground workings.

(i)(3)(i) The applicant may demonstrate the appropriate barrier

width and overburden height by either:

(A) providing a site specific design, certified by a qualified

registered professional engineer, which considers the overburden and

barrier characteristics; or

(B) providing the greater barrier width necessary for a minimum of

100 feet of vertical overburden or for an unmined horizontal barrier

calculated by the formula: W=50+H, when W is the minimum width in feet

and H is the calculated hydrostatic head in feet.

(i)(3)(ii) Exception to the barrier requirement may be approved

provided the Division finds, based upon the geologic and hydrologic

conditions, an accumulation of water in the underground workings cannot

reasonably be expected to occur or other measures taken by the

applicant are adequate to prevent the accumulation of water.

There are no Federal counterparts to the Virginia amendments. The

Director finds, however, that the amendments are reasonable, and not

inconsistent with SMCRA and the Federal regulations. The Virginia

amendments are technically sound, and will add an increased measure of

protection from the hazards of sudden releases of accumulated water

from underground workings.

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. Department of Agriculture, Natural Resources Conservation Service

responded and recommended that the amendments be accepted. The U.S.

Fish and Wildlife Service responded and stated that the proposed

regulatory changes are not likely to adversely affect threatened or

endangered species or critical habitats.

The U.S. Department of Labor, Mine Safety and Health Administration

(MSHA) responded and stated that it may be useful for the State to

develop the criteria that would be employed to measure the phrase

``cannot reasonably be expected'' that appears at proposed Sec. 480-03-

19.817.41(i)(3)(ii). The provision provides for an exception to the

barrier width requirement of (i)(3)(i) when site specific conditions

indicate there will be no accumulation of water. In response to the

MSHA comment, the Division of Mines, Minerals and Energy (DMME) said

that it chose not to specify in the proposed amendment each

circumstance an applicant may be able to demonstrate that water

``cannot reasonably be expected'' to accumulate within the abandoned

mine voids. DMME stated that it intends to depend upon conservative

scientific principles in evaluating each case specific demonstration.

DMME intends to consider the availability/proximity of water to the

underground voids as well as the geohydrologic parameters that may

affect the ability of the voids to hold such waters under head. In

response, the Director believes the DMME approach to be reasonable and

has determined in the Finding above, that the proposed amendments are

not inconsistent with SMCRA and the Federal regulations.

Public Comments

A public comment period and opportunity to request a public hearing

was announced in the May 3, 1996, Federal Register (61 FR 19885). The

comment period closed on June 3, 1996. 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 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.) 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 June 20, 1996

(Administrative Record No. VA-891) and stated that the amendment is in

compliance with 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 sudden release of accumulated water from

underground coal mine voids as submitted by Virginia on April 17, 1996.

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 12988 (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 determined 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)).

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Paperwork Reduction Act

This rule does not contain information collections 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

Intergovernmetal relations, Surface mining, Underground mining.

Dated: July 30, 1996.

Allen D. Klein,

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 (kk) is added to read as follows:

Sec. 946.15 Approval of regulatory program amendments

* * * * *

(kk) The amendment to the Virginia program concerning the sudden

release of accumulated water from underground coal mine voids as

submitted to OSM on April 17, 1996, is approved effective August 19,

1996.

[FR Doc. 96-21083 Filed 8-16-96; 8:45 am]

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