Virginia Regulatory Program

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 946

[VA-106-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 with exceptions 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 regulatory changes

to implement the standards of the Federal Energy Policy Act of 1992,

and the Code of Virginia. The amendment is intended to revise the State

program to be consistent with the Federal regulations as amended on

March 31, 1995 (60 FR 16772) concerning subsidence damage.

EFFECTIVE DATE: September 17, 1997.

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 May 21, 1996 (Administrative Record No. VA-882),

Virginia submitted amendments to the Virginia program concerning

subsidence damage. The amendments are intended to make the Virginia

program consistent with the Federal regulations as amended on March 31,

1995 (60 FR 16722). Virginia stated that the proposed amendments

implement the standards of the Federal Energy Policy Act of 1992, and

sections 45.1-243 and 45.1-258 of the Code of Virginia.

Virginia also noted that the state has adopted a revised system for

numbering the Virginia regulations. For the Virginia program, the

prefix ``480-03-19.'' has been replaced with ``4 VAC 25-130-.'' The

part of the existing Virginia numbering system that corresponds to the

Federal number remains the same. For example, old ``480-03-19.700.5''

has become ``4 VAC 25-130-700.5.'' The Virginia Division of Mines,

[[Page 48759]]

Minerals and Energy (DMME) will be reprinting the Virginia program

regulations to incorporate the new prefix, both in the numbering of the

regulations and in references contained in the regulations. However,

the DMME is continuing to use the ``480-03-19.'' prefix pending the

reprint.

The proposed amendment was published in the June 11, 1996, Federal

Register (61 FR 29506), 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 July

11, 1996. The public comment period was reopened on July 24, 1996 (61

FR 38422), to accept additional comments on the proposed use of a 28-

degree angle of draw with the rebuttable presumption of causation by

subsidence provision. That comment period ended on August 8, 1996. On

September 12, 1996 (61 FR 48110), OSM announced a scheduled public

hearing on the proposed amendments. The hearing was held on September

18, 1996 (Administrative Record Number VA-896).

By letter dated July 11, 1996 (Administrative Record Number VA-

894), OSM requested that Virginia provide additional information on the

proposed amendments, including technical justification for the use of

the 28 degree angle of draw. Virginia responded to that request for

additional information by letter dated January 3, 1997 (Administrative

Record Number VA-902). Virginia also submitted to OSM on March 20,

1997, changes to correct minor punctuation and typographical errors

Administrative Record Number (VA-914). OSM reopened the public comment

period on April 7, 1997, to provide for public comment on Virginia's

technical justification of the proposed use of the 28 degree angle of

draw. The comment period closed on April 22, 1997 (62 FR 16509).

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. Section 480-03-19.700.5 Definitions

(a) ``Drinking, domestic or residential water supply'' has been

added to mean water received from a well or spring and any appurtenant

delivery system that provides water for direct human consumption or

household use. Wells and springs that serve only agricultural,

commercial or industrial enterprises are not included except to the

extent the water supply is for direct human consumption or human

sanitation, or domestic use.

The Director finds this definition to be identical to and no less

effective than the counterpart Federal definition at 30 CFR 701.5.

(b) ``Material damage, in the context of Secs. 480-03-19.784.20 and

480-03-19.817.121'' of this chapter has been added to mean:

(a) Any functional impairment of surface lands, features,

structures or facilities;

(b) Any physical change that has a significant adverse impact on

the affected land's capability to support any current or reasonably

foreseeable uses or causes significant loss in production or income; or

(c) Any significant change in the condition, appearance or utility

of any structure or facility from its presubsidence condition.

The Director finds this definition to be substantively identical to

and no less effective than the counterpart Federal definition at 30 CFR

701.5.

(c) ``Non-commercial building'' has been added to mean any

building, other than an occupied residential dwelling, that, at the

time the subsidence occurs, is used on a regular or temporary basis as

a public building or community or institutional building as those terms

are defined in Sec. 480-03-19.700.5 of this chapter. Any building used

only for commercial agricultural, industrial, retail or other

commercial enterprises is excluded.

The Director finds this definition to be substantively identical to

and no less effective than the counterpart Federal definition at 30 CFR

701.5.

(d) ``Occupied residential dwelling and structures related

thereto'' has been added to mean, for purposes of Secs. 480-03-

19.784.20 and 480-03-19.817.121, any building or other structures that,

at the time the subsistence occurs, is used either temporally,

occasionally, seasonally, or permanently for human habitation. This

term also includes any building, structure or facility installed on,

above or below, or a combination thereof, the land surface if that

building, structure or facility is adjunct to or used in connection

with an occupied residential dwelling. Examples of such structures

include, but are not limited to, garages; storage sheds and barns;

greenhouses and related buildings; utilities and cables; fences and

other enclosures; retaining walls; paved or improved patios, walks and

driveways; septic sewage treatment facilities; and lot drainage and

lawn and garden irrigation systems. Any structure used only for

commercial agricultural, industrial, retail or other commercial

purposes is excluded (hereinafter referred to in this preamble as

``protected structure'').

The Director finds this definition to be substantively identical to

and no less effective than the counterpart Federal definition at 30 CFR

701.5.

(e) ``Replacement of water supply'' has been added to mean, with

respect to protected water supplies contaminated, diminished, or

interrupted by coal mining operations, provision of water supply on

both a temporary and permanent basis equivalent to premining quantity

and quality. Replacement includes provision of an equivalent water

delivery system and payment of operation and maintenance costs in

excess of customary and reasonable delivery costs for premining water

supplies.

(a) Upon agreement by the permittee and the water supply owner, the

obligation to pay such operation and maintenance costs may be satisfied

by a one-time payment in an amount which covers the present worth of

the increased annual operation and maintenance costs for a period

agreed to by the permittee and the water supply owner.

(b) If the affected water supply was not needed for the land use in

existence at the time of loss, contamination, or diminution, and if the

supply is not needed to achieve the post mining land use, replacement

requirements may be satisfied by demonstrating that a suitable

alternative water source is available and could feasibly be developed.

If the latter approach is selected, written concurrence must be

obtained from the water supply owner.

The Director finds this definition to be identical to and no less

effective than the counterpart Federal definition at 30 CFR 701.5.

2. Section 480-03-19.784.14 Hydrologic Information

Subsection (e) has been amended by adding new subsection (e)(3)(iv)

to provide that the probable hydrologic consequences (PHC)

determination shall contain findings on: ``Whether the underground

mining activities conducted after October 24, 1992 may result in

contamination, diminution, or interruption of a well or spring in

existence at the time the permit application is submitted and used for

domestic, drinking, or residential purposes within the permit or

adjacent areas.''

The Director finds this provision to be identical to and no less

effective than

[[Page 48760]]

the counterpart Federal provision at 30 CFR 784.14(e)(3)(iv).

3. Section 480-03-19.784.20 Subsidence Control Plan

The existing language of this provision is deleted and replaced by

new language. New subsection (a) provides for a pre-subsidence survey

that includes a map to identify structures, renewable resource lands

and drinking, domestic and residential water supplies that subsidence

may affect; an accompanying narrative; and a pre-subsidence survey of

all non-commercial buildings or occupied residential dwellings and

structures related thereto, that may be damaged by subsidence, and a

survey of the quantity and quality of all drinking, domestic, and

residential water supplies within the permit and adjacent area that

could be contaminated, diminished, or interrupted by subsidence.

Subsection (b) provides for a subsidence control plan. The

subsidence control plan shall contain a description of the mining

method; a map of underground workings showing areas of planned

subsidence, and areas where measures to minimize subsidence and

subsidence related damage; a description of the overlying rock strata

that affect the likelihood or extent of subsidence and subsidence

related damage; a description of monitoring if needed; a description of

subsidence control measures, except for areas where planned subsidence

is projected to be used; a description of the anticipated effects of

planned subsidence, if any; a description of methods to be employed to

minimize the effects of planned subsidence, or the written consent of

the owner that such measures not be taken; a description of the

measures to be taken to replace adversely affected protected water

supplies or to mitigate or remedy any subsidence related material

damage to the land and protected structures; and other information as

specified by the Division of Mined Land Reclamation (DMLR).

The Director finds this provision to be substantively identical to

and no less effective than the counterpart Federal provision at 30 CFR

784.20 concerning subsidence control plan.

4. Section 480-03-19.817.41 Hydrologic Balance Protection

New subsection (j) is added to provide that the permittee must

promptly replace any drinking, domestic or residential water supply

that is contaminated, diminished or interrupted by underground mining

activities conducted after October 24, 1992, if the affected well or

spring was in existence before the date the DMLR received the permit

application for the activities causing the loss, contamination or

interruption. The baseline hydrologic information required in Sec. 480-

03-19.784.14 and the geologic information concerning baseline

hydrologic conditions required in Sec. 480-03-19.784.22 will be used to

determine the impact of mining activities upon the water supply.

The Director finds this provision to be substantively identical to

and no less effective than the counterpart Federal provision at 30 CFR

817.41(j) concerning drinking, domestic or residential water supply.

5. Section 480-03-19.817.121 Subsidence Control

Subsection (a) concerning measures to prevent or minimize damage is

amended by adding new language (at new subsection (a)(2)) to provide

that planned subsidence must include measures to minimize material

damage to protected structures, except if the permittee has written

consent of the structure owners, or unless the anticipated damage would

constitute a threat to health or safety, the costs of such measures

exceed the anticipated costs of repair, or the structure owners deny

the permittee access to implement the measures to minimize material

damage and the permittee provides written evidence of good faith

efforts to obtain access.

The proposed language is substantively identical to and no less

effective than the counterpart Federal language at 30 CFR 817.121(a)(2)

with one exception. 30 CFR 817.121(a)(2) contains no counterpart to the

proposed language that provides an exception to the requirement to

include measures to minimize material damage to protected structures if

the structure owners deny the permittee access to implement the

measures to minimize material damage.

``Planned subsidence in a predictable and controlled manner''

includes longwall mining and pillar retreat mining. Mitigation efforts

for longwall mining are performed on the surface. Such efforts include

trenching, bracing or jacking of the protected structure. These

mitigation measures remain in place while the ground underneath the

structure subsides, keeping the structure level. For example, jacks

cannot be placed in the underground mine because longwall machinery

moves as one continuous unit and cannot ``skip'' over the area under

the structure. Thus, if a permittee conducting longwall operations

(``longwall permittee'') is denied access to a protected structure, it

is not viable for the longwall permittee to place jacks under the

structure or place braces/trenches around the structure. However, if

the planned subsidence involves pillar retreat mining, then mitigation

efforts could be performed underneath the protected structure

regardless of whether or not a structure owner denied the permittee

access to his structure. The permittee in a pillar retreat operation

could protect the structure by either leaving the pillars of coal under

and surrounding the protected structure or replacing the pillars of

coal with a support. Thus, Virginia's proposal with regard to longwall

mining operations is consistent with the federal rule at 30 CFR

817.121(a)(2) which requires measures to minimize subsidence damage

only when such measures are ``consistent with the mining method

employed'' and ``technologically feasible.''

OSM was also concerned about whether or not the structure owner

would be notified by the longwall permittee of the consequences of

failing to allow access for the placement of mitigation measures. Since

Virginia's proposal had no direct federal counterpart, there was no

direct federal notice counterpart. The Federal regulation at 30 CFR

784.20(a)(3) provide a relevant comparison. 30 CFR 784.20(a)(3)

provides that, if an owner denies access for a pre-mining survey, the

permittee must provide certain information to the landowner concerning

the potential negative effect of their actions, but the lack of access

does not prevent the permittee from mining. Virginia, by a letter dated

January 3, 1997, (Administrative Record Number VA-902) clarified that

under 480-03-19.817.121(a)(2)(iii), the permittee must provide a

written document to the structure owner informing the owner of the

consequences of denying access. Further, the permittee must provide

Virginia with evidence documenting such notice.

Accordingly, the Director finds that with respect to longwall

permittees, the proposed language is consistent with the Federal

regulations and is approving 480-03-19.817.121(a)(2)(iii) to the extent

it applies to longwall permittees. The Director notes that denial of

entry to the longwall permittee to perform mitigation measures does not

relieve the longwall permittee from the obligation to comply with the

repair or compensation requirements of 30 CFR 817.121(c)(4).

Subseciton (c) has been revised by deleting the existing language

and replacing new language. The new language provides for the repair of

damage to surface lands; the repair or

[[Page 48761]]

compensation for damage to non-commercial buildings and dwellings and

related structures; repair or compensation for damage to other

structures; rebuttable presumption of causation by subsidence; approval

of site-specific angle of draw; no presumption where access for pre-

subsidence survey is denied; rebuttal of presumption; information to be

considered in determination of causation; and adjustment of bond amount

for subsidence damage.

The Director finds the proposed provision to be substantively

identical to and no less effective than the counterpart Federal

provision at 30 CFR 817.121(c)(4) with a few exceptions.

a. Virginia's regulation at Sec. 480-03-19.817.121(c)(4)(i),

creates a rebuttable presumption that subsidence caused damage to a

protected structure if that structure is within an area that is

``determined by projecting a specified angle of draw from the outermost

boundary of any underground mine workings to the surface of the land.''

Virginia's language is substantively identical to the federal

regulation at 30 CFR 817.121(c)(4)(i). However, in a letter dated

January 3, 1997 from Virginia to OSM (Administrative Record Number VA-

902), Virginia stated that the ``Division will continue to measure

angle of draw from the edge of high extraction mining areas, where

subsidence is likely to occur (areas where 50% or more of the coal has

been removed).'' This interpretation by Virginia is inconsistent with

the Federal rules. The angle of draw is defined in the preamble to the

1995 Federal rules on subsidence as ``the angle of inclination between

the vertical at the edge of the underground mine workings and the point

of zero vertical displacement at the edge of the subsidence trough.''

60 FR 16722, 16738 (March 31, 1995). OSM does not limit the angle of

draw to high extraction areas. Thus, Virginia's interpretation could

create a smaller area within which the presumption of causation would

apply. Accordingly, since Virginia's language is substantively

identical to the federal regulation, OSM is approving Sec. 480-30-

19.817.121(c)(4)(i) to the extent it is interpreted consistently with

the plain language of 30 CFR 817.121(c)(4)(i). OSM is not approving

Sec. 480-03-19.817.121(c)(4)(i) to the extent it will be applied in a

manner consistent with the plain language of the federal rule that

states the angle of draw will be projected ``from the outermost

boundary of any underground mine workings to the surface of the land.''

Virginia is also adding language to allow for the approval of the

site-specific angle of draw. This language is substantive identical to

30 CFR 817.121(c)(4)(ii). However, as noted above Virginia is not

interpreting how the angle of draw will be determined in a manner

consistent with the federal rules. Therefore, OSM is approving

Sec. 480-03-19.817.121(c)(4)(ii) to the extent it is interpreted

consistently with the plain language of 30 CFR 817.121(c)(4). OSM is

not approving Sec. 480-03-19.817.121(c)(4)(ii) to the extent it will be

applied in a manner inconsistent with the plain language of the federal

rule.

(b) At proposed at Sec. 480-03-17.817.121(c)(4)(i), Virginia has

provided for a 28-degree angle of draw rather than the 30-degree angle

of draw provided in the Federal regulations at 30 CFR 817.121(c)(4)(i).

OSM approved the Federal regulations concerning angle of draw at 30

CFR 817.121(c)(4) on March 31, 1995 (60 FR 16722-16751). The preamble

to the approval of 817.121(c)(4) appears on pages 16737 through 16741.

That preamble presents OSM's explanation for approval of the 30-degree

angle of draw and the flexibility which allows states to apply for an

angle of draw other than the 30-degree angle of draw, and an

explanation of how the angle of draw is implemented.

The purpose of paragraph 30 CFR 817.121(c)(4) is to set out a

procedure under which a specified area would be subject to a

rebuttable presumption that subsidence from underground mining

caused surface damage to non-commercial buildings or occupied

residential dwellings and related structures. This evidentiary

standard would simplify establishing causation of subsidence damage

in many cases, by relieving the regulatory authority of the initial

burden of providing evidence that damage was caused by the mine

operation. [60 FR at 16737]

The presumption would be established only after it is determined

that damage caused by earth movement did in fact occur within the

specified angle of draw. The burden of rebutting the presumption

will be appropriately on the mine operator, who will have the best

information as to the nature, timing, and sequence of mining

activities, geological conditions, etc.; i.e., the types of facts

directly related to causation of the damage. [60 FR at 16737]

OSM believes that the establishment of a specific angle for the

presumption is important and has a number of effects or

ramifications. In any enforcement proceedings concerning allegations

of subsidence damage to protected structures, it will affect the

initial burdens of going forward with the evidence for both the

regulatory authority and the permittee * * * [o]nce the angle of

draw is established, permit applicants will be required to comply

with all presubsidence survey requirements covering at least the

area within the angle of draw * * * OSM believes [that] applying the

presumption to a specified angle of draw will balance the various

purposes of SMCRA, including both environmental protection and the

SMCRA section 102(k) purpose of encouraging the full utilization of

coal resources through the application of under ground extraction

technologies. (60 FR at 16737-16738)

The ``angle of draw'' is the angle formed between a line drawn

vertically from the edge of the underground workings upward to the

surface, and a line drawn from that same point on the edge of the

underground workings up to the surface through the point at the outside

edge of a subsidence trough where the subsidence has diminished to

zero. Therefore, ``the angle of draw is one way to define the outer

boundary of subsidence displacement that may occur at the surface.''

(60 FR at 16738)

In practice (in accordance with 817.121(c)(4)), such an angle of

draw is drawn upward from all points along the outermost boundary of

any (all) underground mine workings. Therefore, it is presumed

(rebuttable) that damage caused by earth movement to protected

structures that are either directly above mine workings or within the

specific angle of draw of those workings, has been caused by the

permittee. The Director notes that the purpose of the use of an angle

of draw is not to prevent mining or subsidence. The purpose of the use

of an angle of draw is to ease the initial investigative burden on the

regulatory authority in those cases where the probability is high that

damage by earth movement was caused by the underground mining

operations.

While recognizing regional and site-specific variability in the

angle of draw, OSM decided to establish a national standard of 30

degrees. This is consistent with the outer limits determined for earth

movement in most subsidence studies across the United States,

particularly later studies addressing long wall mining * * *. This

nationwide standard is conservative'' (most subsidence is expected to

take place within this angle of draw) and ``offers reasonable

protection to surface owners anticipated subsidence scenarios.'' (60 FR

at 16739)

On the other hand, while the Federal standard is conservative, it

was not intended to encompass 100 percent of possible subsidence

damage. OSM concluded that such a standard would place an unreasonable

burden on the permittee with regard to pre-subsidence survey

obligations. Some causes will likely occur where earth movement has

caused damage to protected structures, but those structures may be

outside of

[[Page 48762]]

the angle of draw standard. In those cases, the State regulatory

authority will not have the benefit of the presumption of causation.

The regulatory authority must, nevertheless, investigate such

occurrences to obtain the evidence necessary to determine whether or

not such damage is caused by the permittee.

Although the Federal regulation provides that the presumption shall

apply to a 30-degree angle of draw, 30 CFR 817.121(c)(4)(i) allows the

States to establish a different angle of draw if the State shows in

writing that the angle has a more reasonable basis than the 30-degree

angle of draw, based on geotechnical analysis of the factors affecting

potential surface impacts of underground coal mining operations in the

State. Such an angle of draw should be the angle within which vertical

displacement of the surface is reasonably expected. Further, the

Federal rule ensures that the regulatory authority also has the

flexibility to establish a different angle of draw on a site-specific

basis, where such variation is justified by appropriate geotechnical

analysis.

By letter dated January 3, 1997 (Administrative Record Number VA-

902), Virginia submitted information to OSM that is intended to show

that a 28-degree angle of draw has a more reasonable basis for Virginia

than the 30-degree angle of draw. Virginia's justification for the

proposed 28-degree angle of draw is based on a review of existing

literature, information submitted by consultants on permit

applications, and the use of the Surface Deformation Prediction System

(SDPS) computer modeling software to predict the zero point of movement

on the surface (Angle of Draw). The detailed information presented by

Virginia shows Angle of Draw ranging from 16 to 21 degrees in Dickenson

County, general angle of draw statement for the eastern coal fields as

21 to 26 degrees from published literature, and detailed surface

subsidence measurements by coal companies over long wall mines of 7 to

15 degrees. The SDPS computer subsidence model predicts 13 to 15. The

28-degree angle of draw proposed by Virginia is well outside of any of

the above data and, therefore, is the angle within which vertical

displacement of the surface is reasonably expected.

The Director finds that Virginia has provided sufficient written

justification based on a geotechnical analysis of the factors affecting

potential surface impacts for the proposed use of a 28-degree angle of

draw in accordance with 30 CFR 817.121(c)(4)(i). Therefore, the

Director is approving Virginia's use of the 28-degree angle of draw so

long as it is to be measured from the outermost boundary of any

underground mine workings to the surface of the land. The Director

notes, as discussed above, that it is possible that earth movement that

causes damage to protected structures that are outside the 28-degree

angle of draw standard could occur. In those cases, Virginia will not

have the benefit of the presumption of causation. Virginia must,

nevertheless, investigate such occurrences to obtain the evidence

necessary to determine whether or not such damage is caused by the

permittee.

c. New Sec. 480-03-19.817.121(c)(5) of the Virginia rules is

substantively identical to the counterpart Federal regulations except

that Virginia has also added the following. Virginia provides that no

additional bond is required if the permittee demonstrates that the

liability insurance required under Sec. 480-03-19.800.60 provides

applicable coverage.

There is no direct Federal counterpart to the proposed language at

30 CFR 817.121(c)(5). However, the preamble to the Federal provision at

30 CFR 817.121(c)(5) (see 60 FR 16741-16742; March 31, 1995)

specifically addresses the option that would be implemented by the

Virginia language. In that preamble, OSM stated that under 30 CFR

800.14(c), if the liability insurance policy required under section 30

CFR 800.60 would provide coverage sufficient to fund the reclamation of

subsidence damage, that insurance may be substituted for increased

bond. Therefore, the Director finds that Virginia's proposed language

is consistent with and no less effective than 30 CFR 817.121(c)(5).

IV. Summary and Disposition of Comments

Federal Agency Comments

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

comments were solicited from various interested Federal agencies. The

U.S. Department of Labor, Mine Safety and Health Administration (MSHA)

responded (Administrative Record Number VA-888) and stated that the

proposed amendments pose no conflict with MSHA regulations. The U.S.

Fish and Wildlife Service (FWS) responded and stated that the FWS has

reviewed the amendments and has determined that it appears unlikely

that the proposed amendments will affect Federally listed critical

habitat or species (Administrative Record Number VA-893).

The U.S. Department of Agriculture, Natural Resources Conservation

Service (NRCS) responded (Administrative Record Number VA-892) and

commented on the proposed 28-degree angle of draw. NRCS stated that

while tests and analyses conducted by and for the NRCS in the

Appalachian coal fields have shown a 25-degree angle of draw from the

edge of extraction, NRCS has usually assumed a 30-degree angle of draw

for land rights and safety reasons. NRCS said that the 30-degree

figure, while somewhat conservative, is widely accepted in the

academic, technical and engineering communities. In response, the

Director notes that in Finding 5, above, Virginia has submitted

technical justification for using a 28-degree angle of draw. That is,

the Virginia technical information shows that the 28-degree angle of

draw has a more reasonable basis for Virginia. As noted in the finding,

Virginia's justification does not guarantee (nor does the Federal

standard of 30-degree angle of draw guarantee) that all subsidence

damage will necessarily take place within the specified angle of draw.

Rather, it is expected that the great majority of subsidence damage

would occur within the specified angle of draw. It is possible that

earth movement could occur that causes damage to protected structures

that are outside the 28-degree angle of draw standard. In those cases,

Virginia will not have the benefit of the presumption of causation.

Virginia must, nevertheless, investigate such occurrences to obtain the

evidence necessary to determine whether or not such damage is caused by

the permittee.

Public Comments

The following comments were received in response to the announced

public comment periods. A public hearing was held on September 18,

1997, and the comments below also reflect those offered at the hearing.

One commenter recommended various typographical corrections be made

to the amendment. In response, the Director notes that Virginia has

corrected all but one of the typographical errors that were identified

by the commenter. The remaining error at Sec. 480-03-19.784.20(b)(7),

is clearly a typographical error and does not affect the meaning of

784.20(b). Therefore, as stated in the Director's finding 5, the

Director finds it to be no less effective than the Federal regulation.

Several commenters stated that the proposed 28-degree angle of draw

should not be approved. Some of these commenters expressed disbelief

that any specific angle of draw could adequately protect the coalfield

residents from damage from subsidence. One commeter said that he can't

see how anyone can draw a line on a map and say on one

[[Page 48763]]

side of this line damage is caused by mining, but on the other side of

the line damage can not be mining related. It is especially impossible,

the commenter stated, to use a single measurement for any entire region

or state. Another commenter stated that the current use and practical

application of the angle of draw theory is totally without merit and is

contrary to the way our earth is made or reacts to stress. If a

specific angle of draw must be chosen, commenters recommended a 30-

degree or 35-degree angle of draw. The commenter stated that the

decision to use either the 28-degrees or 30-degrees angle of draw

should consider the obvious, on-the-ground damages above high-

extraction mines. Another commenter said that he was told by company

officials that his residence is just outside the angle of draw and that

he would have to prove that the damage was subsidence related.

To the extent that the comments question the concept of any angle

of draw, these comments are not within the scope of this rulemaking

because they question the federal rule which was approved by OSM in

1995. For a further discussion of the purpose of the angle of draw

please see the federal rule at 60 FR at 16737-16738.

The Director notes that, as discussed above in Finding 5, the

Federal regulations at 30 CFR 817.121(c)(4)(I), while specifying a 30-

degree angle of draw, also authorize the States to amend their programs

to apply the presumption to a different angle of draw. To receive

approval of a different angle of draw, the regulatory authority must

show in writing that the proposed angle has a more reasonable basis

than the 30-degree angle of draw. Virginia has provided the required

technical justification, and OSM, after reviewing the information

supplied by Virginia, concluded (see Finding 5.b.) that Virginia has

met the requirements of 30 CFR 817.121(c)(4)(I).

In addition, it should be understood that neither the State's 28-

degree angle of draw, nor the Federal 30-degree angle of draw are

intended to encompass 100 percent of the possible cases where damage to

surface structures may be caused by underground mining. Rather, OSM

designed the rule to apply an angle of draw within which it would be

reasonable to presume that such damage is caused by the underground

mining operations. The presumption, however, does not change the

ultimate burden of proof in a damage determination.

The ultimate burden of persuasion that a permittee is responsible

for damage to a structure still lies with the regulatory authority or

OSM. ``The presumption * * * [is] established only after it is

determined that damage caused by earth movement did in fact occur

within the specified angle of draw.'' [60 FR at 16737] The burden of

rebutting the presumption will be on the permittee. The ``[p]ermittee

may provide information * * * either before an enforcement action is

taken, when the regulatory authority or OSM is determining whether a

violation exists * * * or after enforcement action occurs.'' [60 FR

17637]

If damage occurs to a protected surface structure that is outside

the specified angle of draw, the presumption does not exist. That is,

it cannot be presumed that the permittee caused the damage. Instead,

the regulatory authority must gather and evaluate evidence that the

damage is caused by the permittee. The permittee, of course, may submit

evidence in an attempt to refute the evidence submitted by the

regulatory authority. The Director notes that neither the use of the

30-degree angle of draw or the use of an alternative, approved angle of

draw (such as 28 degrees) is intended to diminish the protection

afforded to non-commercial buildings, and occupied residential

dwellings and structures related thereto, under 30 CFR 817.121.

One commenter stated that landowners have no chance to prove

anything when they can't get cooperation from coal company officials in

even looking at maps to determine when and where mining under and

around their property occurred. In response, the Director notes that it

is the responsibility of the State to investigate subsidence damage

complaints. Mine maps are available in the permit files that should

provide enough information for the State to determine if mining is

being conducted under a specific property. These maps are available for

public inspection under Sec. 480-03-19.773.13(a)(2). The permittees are

required under Sec. 480-03-19.817.122 to provide six-months advance

notice to property owners of proposed mining under their property.

One commenter stated that the mining maps are not reliable enough

to use the angle of draw on the inside part of a mining operation. The

commenter pointed to the difficulty of rescuing trapped miners by using

mine maps to locate their position and drill rescue shafts to reach

them. How can you, the commenter asked, use an angle of draw determined

from mine maps to consider damage to people's houses, when mining

companies can't even hit a simple opening to rescue trapped miners?

Because of this inaccuracy, the angle of draw should be done away with.

The Director notes that this comment questions the concept of any angle

of draw and, therefore, is not within the scope of this rulemaking

because it questions the federal rule which was approved by OSM in

1995.

A commenter provided the following comments on Virginia's January

3, 1997, technical justification of the proposed 28-degree angle of

draw. The commenter objected to the use of statistics, estimates,

averages, and computer modeling for ``angle of draw calculations.'' In

response, the Director notes that while some of these types of

mathematical procedures were used in support of the reduction from 30

to 28 degrees, the basis for the models and estimates were actual, on-

the-ground measurements of the extent of subsidence impacts from

underground mining. These measurements were obtained in Virginia by

scientifically-documented studies of Virginia Polytechnic Institute &

State University (VPI), and the mining companies.

A commenter contended that the geologic data upon which the angle

of draw is based, is unsubstantiated by adequate geological information

on rock types and strength. In response, the Director notes as part of

Virginia's justification of the use of a 28-degree angle of draw, the

State included the results of subsidence models generated by the

computer software Surface Deformation Prediction System (SDPS). This

computer software, which was developed by VPI in cooperation with OSM,

has been validated from actual mine subsidence data in Virginia. The

software allows the prediction of the angle of draw, predicated on the

amount of ``hardrock'' in the overburden above an underground mine.

Overburden and other data from two Virginia mines were applied to SDPS.

Hardrock for these two models consisted of 69.5 and 76.7 percent based

on actual core samples, and the angle of draw predicted by SDPS equated

to 15.1 and 13.8 degrees. The stratigraphy in southwestern Virginia is

noted for massive sandstones and other types of hardrock above the

coal. The hardrock is estimated to average 50 percent of coal

overburden. When a 50 percent hardrock figure is applied to SDPS, the

angle of draw equates to 23 degrees. Using a conservative figure of 30

percent hardrock (atypically low for southwestern Virginia), SDPS

predicts the angle of draw of 28 degrees. Thus, under the typical

conditions of southwestern Virginia, OSM believes a 28-degree angle of

draw for the purposes of defining the limits of rebuttable presumption

is reasonable, and renders the regulations proposed by Virginia no

[[Page 48764]]

less effective than the counterpart provision at 30 CFR

817.121(c)(4)(I).

A commenter was concerned that the studies preferred to in support

of the 28-degree angle of draw were conducted on the initial mining

panels or pillar extraction when only a minimal amount of ground

disruption would occur. The commenter argued that, in reality, as

mining progresses, damages become more substantial because more of the

overburden's strength is weakened causing even greater area of impact.

In response, the Director disagrees with the commenter for two reasons.

First, there is no scientific support for the commenter's hypothesis

that the angle of draw increases as multiple longwall panels are mined

or when full extraction room-and-pillar mining extends beyond what has

been shown to be a critical width. Secondly, the State cited numerous

studies by several different authors in its justification of the use of

a 28-degree angle of draw. There is no support for the commenter's

allegation that all or any of these studies were conducted only during

the initial mining of panels or pillars. Several of the supporting

documents show that the studies were conducted using multipanel

longwall mines or areas of extensive room-and-pillar mining.

Several commenters referred to the McClure #1 mine in Virginia and

said that subsidence damage was not confined to a 28 degree angle of

draw. One commenter added that the proportion of sandstone in the

overburden above the McClure #1 mine is less than expected by the

modeling. In response, the Director notes that Virginia's submittal to

support their request for a 28-degree angle of draw specifically cites

information that concerns the McClure #1 mine (Administrative Record

Number VA 902). In that reference, the Clinchfield Coal Company (permit

1400411, revision 9402858) completed a study in 1989 of actual

subsidence (not modeling data) over the McClure # mine in the Jawbone

seam. Clinchfield's survey data measured a draw angle of 15 degrees. In

its permit, however, Clinchfield requested a more conservative 24

degree angle of draw for the longwall mining. Both of these angles are

well within the 28-degree angle of draw requested by Virginia. That is,

the subsidence trough at the McClure #1 mine (subsidence trough is the

zone of vertical displacement as measured by a vertical line at the

edge of the underground workings and the point where the vertical

displacement diminishes to zero) was measured to be well within the

proposed 28-degree angle of draw. Therefore, the Director continues to

believe that the proposed 28-degree angle of draw is reasonable.

As for allegations of damage outside of a 28-degree angle of draw,

such allegations do not automatically discredit the reasonableness of

the proposed angle of draw. As explained in Finding 5 above, the angle

of draw (whether it be the Federal 30-degrees or the proposed 28

degrees) is not intended to encompass 100 percent of all subsidence

damage. Rather, the angle of draw is intended to encompass an area

within which it is reasonable to presume that subsidence damage is

caused by the underground mining operations. Based on the actual

measurements of vertical displacement above the McClure 11 mine as

cited in the Clinchfield Coal Company study (15 degrees), it is

reasonable to believe that most subsidence damage would be confined

within the proposed angle of draw. Therefore, the Director continues to

believe that the use of a 28-degree angle of draw is reasonable and no

less effective than the Federal 30-degree angle of draw.

Several commenters expressed concern over how and where the line

that represents the angle of draw is determined and drawn. One

commenter stated that the angle should be computed from the outermost

boundary of any underground mine workings. The commenter stressed the

use of the word ``any'' as it refers to underground mine workings. The

commenter acknowledged that the ``any'' requirement is in the Virginia

regulations at Sec. 480-03-19.817.121(c)(4), but explained that the

angle should be computed to include the entire mine, the adjacent area,

the affected area, the cumulative impact area, and the disturbed area.

One commenter requested that OSM clarify where the angle of draw is

measured from. Another commenter insists the measure of the angle of

draw be outward from the perimeter of the underground mine, and

suggests that Virginia's intent is to only measure outward from high-

extraction mining areas. These comments pertain to Virginia's

regulation at 480-03-19.817.121(c)(4)(I), which is discussed in the

Director's Finding 5.a. As previously stated, the definition of ``angle

of draw'' is defined as ``the angle of inclination between the vertical

at the edge of the underground mine workings and the point of zero

vertical displacement at the endge of the subsidence trough.'' 60 FR

16722, 16738 (March 31, 1995). The Director agrees with the commenter

that Virginia's interpretation is to only measure the angle of draw

from the high extraction mining areas which is inconsistent with the

plain language of 30 CFR 817.121(c)(4)(I). Accordingly, Virginia's

regulation is not approved to the extent it will be applied in a manner

inconsistent with the plain language of the federal rule.

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 July 22, 1996

(Administrative Record No. VA-895) 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, and except as noted below, the

Director is approving Virignia's amendment concerning subsidence damage

as submitted by Virginia on May 21, 1996, and clarified by letter dated

January 3, 1997, and revised by a letter dated March 20, 1997, to

correct minor punctuation and typographical errors. The Director is not

approving Sec. 480-03-19.817.121(c)(4)(I) to (ii) to the extent it will

be applied in a manner inconsistent with 30 CFR 817.121(c)(4). The

Director is approving Sec. 480-03-19.817.121(a)(2)(iii) to the extent

it applies to longwall mining.

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.

Effect of Director's Decision

Section 503 of SMCRA provides that a State may not exercise

jurisdiction under SMCRA unless the State program is approved by the

Secretary. Similarly, 30 CFR 732.17(a) requires that any alteration of

an approved State program be submitted to OSM for review as a program

amendment. Thus, any changes

[[Page 48765]]

to the State program are not enforceable until approved by OSM. The

Federal regulations at 30 CFR 732.17(g) prohibit any unilateral changes

to State programs. In his oversight of the Virginia program, the

Director will recognize only the statutes, regulations and other

materials approved by him, together with any consistent implementing

policies, directives and other materials, and will require the

enforcement by Virginia of only such provisions.

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 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: August 29, 1997.

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. Section 946.15 is amended in the table by adding a new entry in

chronological order by ``Date of Final Publication'' to read as

follows:

Sec. 946.15 Approval of Virginia regulatory program amendments.

* * * * *

------------------------------------------------------------------------

Original amendment submission Date of final Citation/

date publication description

------------------------------------------------------------------------

* * * * *

May 21, 1996.................... September 17, 1997 VA Code Secs. 480-

03-19.700.5;

784.14, .20;

817.41, .121.

------------------------------------------------------------------------

[FR Doc. 97-24682 Filed 9-16-97; 8:45 am]

BILLING CODE 4310-05-M