Virginia Regulatory Program

DEPARTMENT OF THE INTERIOR

30 CFR Part 946

[VA-108-FOR]

Virginia Regulatory Program

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

Interior.

[[Page 46553]]

ACTION: Final rule; approval of amendment.

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SUMMARY: OSM is approving a proposed amendment to the Virginia

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 regulatory changes to

implement the remining standards of the Federal Energy Policy Act of

1992. The amendment is intended to revise the Virginia program to be

consistent with the corresponding Federal regulations as amended on

November 27, 1995. (60 FR 58480)

EFFECTIVE DATE: September 4, 1996.

FOR FURTHER INFORMATION CONTACT:

Robert A. Penn, Director, Big Stone Gap Field Office, 1941 Neely 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 Proposed 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 61088). Subsequent actions concerning

conditions of approval and program amendments can be found at 30 CFR

946.11, 946.12, 946.13, 946.15, and 946.16.

II. Submission of the Proposed Amendment

By letter dated May 28, 1996, (Administrative Record No. VA-885)

Virginia submitted a proposed amendment to its program pursuant to

SMCRA. Virginia submitted the proposed amendment at its own initiative.

Virginia proposed amendments to implement the remining standards of the

Federal Energy Policy Act of 1992.

OSM announced receipt of the proposed amendment in the June 19,

1996, Federal Register (61 FR 31071) and in the same document opened

the public comment period and provided an opportunity for a public

hearing on the adequacy of the proposed amendment. The public comment

period closed on July 19, 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.

Revisions not specifically discussed below concern nonsubstantive

wording changes, or revised cross-references and paragraph notations to

reflect organizational changes resulting from this amendment.

A. Revisions to Virginia Regulations That Are Substantively Identical

to the Corresponding Federal Regulations

The amendments proposed by Virginia are as follows:

1. Section 480-03-19.700.5 Definitions

(a) ``Lands eligible for remining'' has been added to mean those

lands that would otherwise be eligible for expenditures under section

404 or under section 402(g)(4) of the Federal Act.

(b) ``Unanticipated event or condition'' has been added to mean (as

used in Sec. 480-03-19.773.15), an event or condition related to prior

mining activity which arises from a surface coal mining and reclamation

operation on lands eligible for remining and was not contemplated by

the applicable permit.

2. Section 480-03-19.773.15 Review of Permit Applications

(a) New subsection (b)(4) has been added to provide, at (b)(4)(i)

that subsequent to October 24, 1992, the prohibitions of paragraph (b)

of this section regarding issuance of a new permit shall not apply to

any violation that: occurs after that date; is unabated; and results

from an unanticipated event or condition that arises from a surface

coal mining and reclamation operation on lands that are eligible for

remining under a permit which is issued before September 30, 2004, or

any renewals thereof, and held by the person making applications for

the new permit.

New subsection (b)(4)(ii) provides that for permits issued under

Sec. 480-03-19.785.25 of this chapter, an event or condition shall be

presumed to be unanticipated for the purposes of this paragraph if it:

arose after permit issuance; was related to prior mining; and was not

identified in the permit.

(b) New subsection (c)(14) has been added to provide that for

permits to be issued under Sec. 480-03-19.785.25 of this chapter, the

permit application must contain: lands eligible for remining; an

identification of the potential environmental and safety problems

related to prior mining activity which could reasonably be anticipated

to occur at the site; and mitigation plans to sufficiently address

these potential environmental and safety problems so that reclamation

as required by the applicable requirements of this chapter can be

accomplished.

3. Section 480-03-19.785.25 Lands Eligible for Remining

This new section contains permitting requirements to implement

Sec. 480-03-19.773.15(b)(4), and provides that: any person who submits

a permit application to conduct a surface coal mining operation on

lands eligible for remaining must comply with this section; any

application for a permit under this section shall be made according to

all requirements of this subchapter applicable to surface coal mining

and reclamation operations. In addition, the application shall: to the

extent not otherwise addressed in the permit application, identify

potential environmental and safety problems related to prior mining

activity at the site and that could be reasonably anticipated to occur.

This identification shall be based on a due diligence investigation

which shall include visual observations at the site, a record review of

past mining at the site, and environmental sampling tailored to current

site conditions; with regard to potential environmental and safety

problems referred to in paragraph (b)(1) of this section, describe the

mitigative measures that will be taken to ensure that the applicable

reclamation requirements of this chapter can be met; The requirements

of this section shall not apply after September 30, 2004.

4. Section 480-03-19.816/817.116 Revegetation: Standards for Success

Subsections (c)(2)(i) have been amended by adding the phrase

``except as provided in paragraph (c)(2)(ii) of this section'' to the

first sentence. This modification was made in response to the new

language added at subsection (c)(2)(ii), and that is identified below.

New subsection (c)(2)(ii) provide that the responsibility period

shall be two full years for lands eligible for remining included in

permits issued before September 30, 2004, or any renewals thereof. To

the extent that the success standards are established by paragraph

(b)(5) of this section, the lands shall equal or exceed the standards

during the growing season of the last year of the responsibility

period.

Because the above proposed revisions are identical in meaning to

the corresponding Federal regulation, the Director finds that

Virginia's proposed rules are no less effective than the Federal rule.

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IV. Summary and Disposition of Comments

Public Comments

The Director solicited public comments and provided an opportunity

for a public hearing on the proposed amendment. No public comments were

received, and because no one requested an opportunity to speak at a

public hearing, no hearing was held.

Federal Agency Comments

Pursuant to 30 CFR 732.17(h)(11)(i), the Director solicited

comments on the proposed amendment from various Federal agencies with

an actual or potential interest in the Virginia program. 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

the amendments should be accepted.

Environmental Protection Agency (EPA)

Pursuant to 30 CFR 732.17(h)(11)(ii), OSM is required to obtain the

written concurrence of the EPA with respect to those provisions of the

proposed 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 on May 31, 1996. EPA responded that the

amendment was acceptable.

State Historical Preservation Officer (SHPO) and the Advisory Council

on Historic Preservation (ACHP)

Pursuant to 30 CFR 732.17(h)(4), OSM solicited comments on the

proposed amendment from the SHPO and ACHP. They did not respond.

V. Director's Decision

Based on the above finding(s), the Director approves the proposed

amendment as submitted by Virginia on May 28, 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 concluded 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 special 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

assumption 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.

Intergovernmental relations, Surface mining, Underground mining.

Dated: August 14, 1996.

Tim L. Dieringer,

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. Section 946.15 is amended by adding paragraph (ll) to read as

follows:

Sec. 946.15 Approval of regulatory program amendments.

* * * * *

(ll) The amendment to the Virginia program concerning

implementation of the remining standards of the Federal Energy Policy

Act of 1992 as submitted to OSM on May 28, 1996, is approved effective

September 4, 1996.

[FR Doc. 96-22448 Filed 9-3-96; 8:45 am]

BILLING CODE 4310-05-M