Virginia Regulatory Program

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 946

[VA-112-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 an 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 revises numerous provisions of the Virginia program

concerning surface coal mining and reclamation operations. The

amendment is intended to revise the State program to be consistent with

the Federal regulations.

EFFECTIVE DATE: June 24, 1998.

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 December 1, 1997 (Administrative Record No. VA-

938), the Virginia Department of Mines, Minerals and Energy (DMME)

submitted numerous amendments to the Virginia program. The DMME stated

that the purpose of the amendments is to address issues identified by

OSM in a letter dated May 30, 1997, pursuant to 30 CFR 732.17(d)

(Administrative Record Number VA-955). The DMME also stated that the

proposed amendments are intended to be materially consistent with the

corresponding Federal standards.

The proposed amendment was published in the December 23, 1997,

Federal Register (62 FR 67016), 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

January 22, 1998. No one requested to speak at a public hearing, so no

hearing was held.

By electronic mail dated March 6, 1998 (Administrative Record

Number VA-953), OSM provided the State with comments on the proposed

amendments. The DMME responded to those comments by electronic mail

dated March 20, 1998 (Administrative Record Number VA-954).

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. Only the substantive

changes will be discussed below.

1. 4 VAC 25-130-700.5 Definition of ``Other Treatment Facilities''

This definition has been amended to add ``neutralization'' as an

example of chemical treatments, and to add ``precipitators'' as an

example of mechanical structures. In addition, a new subsection (b) has

been added to provide that `` other treatment facilities'' will have to

comply with all applicable State and Federal water quality laws and

regulations. The Director finds that with the proposed changes, the

Virginia program definition of ``other treatment facilities'' is

substantively identical to and therefore no less effective than the

counterpart Federal definition at 30 CFR 701.5.

4 VAC 25-130-700.5 Definition of ``Previously mined area.'' This

definition has been revised to state that `` previously mined area''

means land affected by surface coal mining operations prior to August

3, 1997, that has not been reclaimed to the standards of this Chapter.

The Director finds that the proposed definition is substantively

identical to and therefore no less effective than the counterpart

Federal definition at 30 CFR 701.5.

2. 4 VAC 25-130-779.22 Land Use Information

This provision has been deleted. The counterpart Federal regulation

at 30 CFR 779.22 was deleted on May 27, 1994 (59 FR 27932). In that

final rule notice, OSM consolidated the land use information

requirements of sections 30 CFR 779.22 and 30 CFR 780.23 into final 30

CFR 780.23. As discussed below in Finding 4, 4 VAC 25-130-780.23

concerning reclamation plans; land use information is being amended by

the State, and is substantively identical to and therefore is less

effective than the counterpart Federal regulations at 30

[[Page 34281]]

CFR 780.23. Therefore, the Director finds that the proposed deletion

does not render the Virginia program less effective and can be

approved.

3. 4 VAC 25-130-779.25 Cross Sections, Maps, and Plans

This provision is amended by deleting subsection (k) concerning

slope measurements, and by revising the subsection's numbering system.

The counterpart Federal provision at 30 CFR 779.25(a)(11) concerning

slope measurements was deleted by May 27, 1994 (59 FR 27932). In that

final rule notice, OSM explained that the provisions was deleted

because it was redundant and provided no additional information beyond

that already available to the regulatory authority under 30 CFR

777.14(a) and OSM's technical information processing system (TIPS). The

Director notes that the Virginia program contains an approved

counterpart to 30 CFR 777.14(a). Therefore, the Director finds that as

amended, the deletion does not render the Virginia program less

effective than the Federal regulations.

4. 4 VAC 25-130-780.23 Reclamation Plan; Land Use Information

The existing language of this subsection has been deleted and

replaced in its entirety by new language. The Director finds that, as

revised, the provision is substantively identical to and therefore no

less effective than the counterpart Federal regulations at 30 CFR

780.23.

5. 4 VAC 25-130-780.25 Reclamation Plan: Siltation Structures,

Impoundments, Banks, Dams, and Embankments

This provision is amended by adding new subsection 780.25(a)(2)

concerning impoundments that meet Class B and C criteria for dams as

specified in the U.S. Department of Agriculture, Soil Conservation

Service Technical Release No. 60, ``Earth Dams and Reservoirs.'' The

Director finds that new subsection 780.25(a)(2) is substantively

identical to and therefore no less effective than the Federal

regulations at 30 CFR 780.25(a)(2).

The provision is also amended in various locations to add

references to the new language at subsection 780.25(a)(2), and to

revise the provision to be consistent with the counterpart Federal

regulations. The Director finds the revised language at 780.25(a),

(a)(3), (b) and (f) to be substantively identical to and therefore no

less effective than the counterpart Federal regulations with one

exception. The revised language at subsection 780.25(c)(3) does not

specify that any engineering design standards that may be established

by the State must be approved by the Director through the State program

amendment approval process.

However, Virginia already has approved engineering design standards

at 4 VAC 25-130-816/817.49(a)(4)(ii). In addition, the DMME has

informed OSM that any other design standard that DMME may accept in

lieu of the engineering standard will first be approved through the

state program amendment process (Administrative Record Number VA-954).

Therefore, to the extent that any design standard that DMME may accept

in lieu of the engineering standard will first be approved through the

state program amendment process, the Director finds the proposed

provision to be no less effective than the counterpart Federal

regulations at 30 CFR 780.25.

6. 4 VAC 25-130-780.35 Disposal of Excess Spoil

Subsection (b) is amended by adding the phrase ``except for the

disposal of excess spoil on preexisting benches'' to the existing

language. As amended, the requirements of subsection 780.35(b) do not

apply to the disposal of excess spoil on preexisting benches. The

Director finds that the amended language is substantively identical to

and therefore no less effective than the counterpart language at 30 CFR

780.35(b).

7. 4 VAC 25-130-783.25 Cross Sections, Maps and Plans (Underground)

This provision is amended by deleting subsection (k) concerning

slope measurements, and by revising the subsection's numbering system.

The counterpart Federal provision at 30 CFR 783.25(a)(11) concerning

slope measurements was deleted by May 27, 1994 (59 FR 27932). In that

final rule notice, OSM explained that the provision was deleted because

it was redundant and provided no additional information beyond that

already available to the regulatory authority under 30 CFR 777.14(a)

and OSM's technical information processing system (TIPS). The Director

notes that the Virginia program contains an approved counterpart to 30

CFR 777.14(a). Therefore, the Director finds that as amended, the

deletion does not render the Virginia program less effective the than

the federal regulations. As amended, the provision is substantively

identical to and therefore no less effective than the counterpart

Federal regulations at the 30 CFR 783.25.

8. 4 VAC 25-130-784.15 Reclamation Plan: Land Use Information

(Underground)

The existing language of this section has been deleted and replaced

in its entirety by new language. The Director finds that as revised,

the provision is substantively identical to and therefore no less

effective than the counterpart Federal regulations at 30 CFR 784.15.

9. 4 VAC 25-130-784.16 Reclamation Plan: Siltation Structure,

Impoundments, Banks, Dams, and Embankments (Underground)

Subsections (a), (b), (c), and (f) are amended. Subsection (a) is

amended by adding the requirements for detailed designed plans, and

deleting and replacing the term sedimentation pond with the term

siltation structure. The Director finds these changes render the

Virginia language substantively identical to and therefore no less

effective than the counterpart Federal provision at 30 CFR 784.16(a).

Subsection (a)(2) is amended by adding language concerning

impoundments meeting the Class B or C criteria in the U.S. Department

of Agriculture, Soil Conservation Service Technical Release No. 60

(210-VI-TR60, Oct. 1985), ``Earth Dams and Reservoirs,'' Technical

Release No. 60 (TR-60). The Director finds the added language to be

substantively identical to and therefore no less effective than the

counterpart Federal requirements at 30 CFR 784.16(a)(2).

Subsection (a)(3) is amended to properly reference the amended

subsection (a)(2). Subsection (b) has been amended by deleting

language. The Director finds that as amended, the State provisions are

substantively identical to and therefore no less effective than the

counterpart Federal regulations at 30 CFR 784.16(a)(3) and (b).

New subsection (c)(3) is added to provide that the State may

establish engineering design standards to ensure stability comparable

to a 1.3 minimum static safety factor in lieu of engineering tests to

establish compliance with the minimum static safety factor of 1.3

specified at subsection 817.49(a)(4)(ii). The director finds this new

provision to be substantively identical to and therefore no less

effective than the counterpart Federal provision at 30 CFR 784.16(c)(3)

with one exception. The Federal provision also provides that the

authorization for States to establish engineering design standards in

lieu of engineering tests to establish compliance with the minimum

static safety factor of 1.3 must be

[[Page 34282]]

accomplished within the state program amendment approval process.

However, Virginia already has approved engineering design standards

at 4 VAC 25-130-816/817.49(a)(4)(ii). In addition, the DMME has

informed OSM that any other design standard that DMME may accept in

lieu of the engineering standard will first be approved through the

state program amendment process (Administrative Record Number VA-954).

Therefore, to the extent that any other design standard that DMME may

accept in lieu of the engineering standard will first be approved

through the state program amendment process, the Director finds the

proposed provision to be no less effective than to the counterpart

Federal regulations at 30 CFR 784.16(c)(3).

Subsection 784.16(f) has been amended by deleting reference to

structures 20 feet or higher or that impound more than 20 acre feet. In

its place, language has been added concerning structures that meet

Class B or C criteria for dams in TR-60 or meets the size or criteria

of 30 CFR 77.216(a). The Director finds the amended language to be

substantively identical to and therefore no less effective than the

counterpart Federal regulations at 30 CFR 784.16(f).

10. 4 VAC 25-130-784.23 Operation Plan; Maps and Plans

Subsection (c) is amended by adding a reference to subsection

784.23(b)(4) in addition to the references to (b)(5), (6), (10), and

(11). The Director finds the added language to be substantively

identical to and therefore no less effective than the Federal

counterpart provision at 30 CFR 784.23(c).

11. 4 VAC 25-130-800.40 Requirements for Release of Performance Bond

New subsection (a)(3) is added to provide that the application for

bond release shall include a notarized statement which certifies that

all applicable reclamation activities have been accomplished in

accordance with the requirements of the Act, the regulatory program,

and the approved reclamation plan. Such certification shall be

submitted for each application or phase of bond release. The Director

finds the added language to be identical to and therefore no less

effective than the counterpart Federal language at 30 CFR 800.40(a)(3).

12. 4 VAC 25-130-816/817.46 Hydrologic Balance; Siltation Structures

Subsections (a)(2) is amended by deleting the word ``permittee''

and replacing it with the word ``operator.'' The Director finds that as

amended, subsections (a)(2) are identical to and therefore no less

effective than the counterpart Federal regulations at 30 CFR 816/

817.46(a)(2).

Subsections (b)(3) have been amended by deleting the last sentence

that provided that the certification of completion of the siltation

structures shall be provided to the division within 30 days after

completion of construction of the structure. The Director finds that as

amended, subsections (b)(3) are substantively identical to and

therefore no less effective than the Federal regulations at 30 CFR 816/

817.46(a)(3).

Subsection (b)(5) have been amended by deleting the words ``growing

seasons'' and adding in their place the word ``years.'' The Director

finds that as amended, subsections (b)(5) are identical to and

therefore no less effective than the Federal regulations at 30 CFR 816/

817.46(b)(5).

Subsections (c)(2) have been amended to delete most of the existing

language concerning spillways. As amended, subsections (c)(2) provide

that a sedimentation pond shall include either a combination of

principal and emergency spillways or a single spillway configured as

specified in 4 VAC 25-130-816.49(a)(9).

OSM revised the performance standards for impoundments on October

20, 1994 (59 FR 53022). For clarity, OSM moved the spillway design

requirements of 30 CFR 816./817.46(c)(2)(i) through (iii) to sections

816/817.49(a)(9) and revised 816/817.46(c)(2) to reference sections

816/817.49(a)(9). The Director finds that as amended, Virginia

subsection (c)(2) is substantively identical to and therefore no less

effective than the revised Federal regulations at 30 CFR 816/

817.46(c)(2) with one exception. 4 VAC 25-130-817.46(c)(2) concerning

spillways contains an erroneous sentence fragment referencing Paragraph

(c)(2)(i), a paragraph that does not exist.

In response to OSM's comment about the sentence fragment, the DMME

stated that it will delete those additional words (Administrative

Record Number VA-954). Therefore, to the extent that the DMME will

delete the erroneous sentence fragment that references Paragraph

(c)(2)(i), the Director finds the provisions to be no less effective

than the counterpart Federal regulations at 30 CFR 816/817.46(c)(2).

13. 4 VAC 25-130-816/817.49 Impoundments

New subsections (a)(1) provide that impoundments meeting the Class

B or C criteria in the U.S. Department of Agriculture, Soil

Conservation Service Technical Release No. 60 (210-VI-TR60, Oct. 1985),

``Earth Dams and Reservoirs,'' Technical Release No. 60 (TR-60) shall

comply with ``Minimum Emergency Spillway Hydrologic Criteria'' table in

TR-60 and the requirements of this section. The Director finds the

added language to be substantively identical and therefore no less

effective than tot he counterpart Federal requirements at 30 CFR 816/

817.49(a)(1).

Subsections (a)(4)(i) concerning stability have been amended to

delete the words ``or located where failure would be expected to cause

loss of life or serious property damage.'' In addition, the word

``state'' has been added between the words ``steady'' and `seepage.''

OSM amended the counterpart Federal regulations on October 20, 1994 (59

FR 53022). In that amendment, OSM removed the phrase ``or located where

failure would be expected to cause loss of life or serious property

damage'' because it is redundant with the cited TR-60 reference. The

Director finds that as amended, subsections (a)(4)(i) are identical to

and therefore no less effective than the counterpart Federal

regulations at 30 CFR 816/817.49(a)(4)(i).

Subsections (a)(4)(ii) are amended by deleting the words ``meeting

the size or other criteria of 30 CFR 772.216(a)'' and adding in their

place the words ``included in Paragraph (a)(4)(i). In addition, and in

the same sentence, the words ``and located where failure would not be

expected to cause loss of life or serious property damage'' have been

deleted. OSM made similar changes to its counterpart regulations at 30

CFR 816/817.49(a)(4)(ii) to help clarify which safety factors are

related to specific types of impoundment classification. The Director

finds that amended language in subsections (a)(4)(ii) to be identical

to and therefore no less effective than the amended language in the

counterpart Federal regulations at Sec. 816/817.49(a)(4)(ii).

Subsections (a)(5) are amended by adding a new last sentence that

provides that ``[i]mpoundments meeting the Class B or C criteria for

dams in TR-60 shall comply with the freeboard hydrograph criteria in

the ``Minimum Emergency Spillway Hydrologic Criteria'' table in TR-60.

This change renders subsections (a)(5) compatible with TR-60 standards

added to subsections (a)(1). The Director finds the amended language in

subsections (a)(5) to be substantively identical to and therefore no

less effective than the counterpart Federal regulations at 30 CFR 816/

817.49(a)(5).

[[Page 34283]]

Subsections (a)(6)(i) are amended by adding a reference to Class B

or C criteria for dams in TR-60. The Director finds the amended

language in subsections (a)(6) to be substantively identical to and

therefore no less effective than the counterpart Federal language at 30

CFR 816/817.49(a)(6).

Subsections (a)(9)(ii)(A) have been amended to provide that for

impoundments meeting the Class B or C criteria for dams in TR-60, the

impoundments must meet the emergency spillway hydrograph criteria in

the ``Minimum Emergency Spillway Hydrologic Criteria'' table in TR-60

or greater as specified by the Division. The Director finds the amended

language in subsections (a)(9)(ii)(A) to be substantively identical to

and therefore no less effective than the counterpart Federal language

at 30 CFR 816/817.49(a)(9)(ii)(A).

Subsections (a)(9)(ii)(B) have been amended by adding the words

``or exceeding'' between the word ``meeting'' and the words ``the

size.'' The Director finds the amended language to be substantively

identical to and therefore no less effective than the counterpart

Federal language at 30 CFR 816/817.49(a)(9)(ii)(B).

Subsections (a)(9)(ii)(C) have been amended by deleting the words

``meeting the size or other criteria of 30 CFR 77.216(a)'' and adding

in their place the words ``included in Paragraph (a)(9)(ii) (A) and

(B). The Director finds the amendment to subsections (a)(9)(ii)(C) to

be substantively identical to and therefore no less effective than the

Federal regulations at 30 CFR 816/817.49(a)(9)(ii)(C).

Subsections (a)(11) concerning examinations has been amended to

provide that impoundments meeting the Class B or C criteria for dams in

TR-60, or the size or other criteria of 30 CFR 77.216(a) must be

examined in accordance with Sec. 77.216(a). In addition, subsections

(a)(11) have been amended to provide that impoundments not meeting such

criteria shall be examined at least quarterly. Also, subsections

(a)(11) have been amended to provide that a qualified person designated

by the operator shall examine impoundments for appearance of structural

weakness and other hazardous conditions. Finally, the last sentence

concerning a written record has been deleted. The Director finds that

as amended, subsections (a)(11) are substantively identical to and

therefore no less effective than the counterpart Federal regulations at

30 CFR 816/817.49(a)(12).

Subsections (c)(2)(i) have been amended by deleting the words

``[i]n the case of an impoundment meeting'' and adding in their place

the words [i]mpoundments meeting the SCS Class B or C criteria for dams

in TR-060 or.'' In addition, the words ``it is'' are deleted and

replaced by the words ``shall be.'' The Director finds that as amended,

subsections (c)(2)(i) are substantively identical to and therefore no

less effective than the counterpart Federal regulations at 30 CFR 816/

817.49(c)(2)(i).

Subsections (c)(2)(ii) have been amended to provide that

impoundments not included in Paragraphs (c)(2)(i) of these sections

shall be designed to control the precipitation of a 100-year 6-hour

event, or greater event as specified by the division. The Director

finds that as amended, subsections (c)(2)(ii) are substantively

identical to and therefore no less effective than the counterpart

Federal regulations at 30 CFR 816/817.49(c)(2)(ii).

14. 4 VAC 25-130-816/817.74 Disposal of Excess Spoil; Preexisting

Benches

Subsections (a) through (g) have been amended to mirror the

counterpart Federal regulations at 30 CFR 816/817.74. On December 17,

1991 (56 FR 65612) OSM revised the Federal regulations at 30 CFR 816/

817.74 concerning the disposal of excess spoil on preexisting benches

to conform those requirements with the backfilling and grading

requirements of Secs. 816/817.102. The Director finds that, as amended,

4 VAC 25-130-816/817.74 are substantively identical to and therefore no

less effective than the Federal regulations at 30 CFR 816/817.74.

15. 4 VAC 25-130-816/817.81 Coal Mine Waste; General Requirements

Subsections (a) have been amended to provide that all coal mine

waste disposed of in an area other the mine workings or excavations

shall be placed in new or existing disposal areas within a permit area,

which are approved by the division for this purpose. Coal mine waste

shall be hauled or conveyed and placed for final placement in a

controlled manner to comply with the identified provisions. The Federal

Regulations at 30 CFR 816/817.81(a) were revised on December 17, 1991

(56 FR 65612) to provide that coal mine waste be ``hauled or conveyed''

instead of just requiring that it be ``placed.'' Additional language

was also added to allow the disposal of coal mine waste in mine

workings or excavations and to specify that the waste be placed in a

controlled manner to promote fill stability and inhibit combustibility.

The Director finds that as amended, 4 VAC 25-130-816/817.81(a) is

substantively identical to and therefore no less effective than the

counterpart Federal regulations at 30 CFR 816/817.81(a). In addition,

subsections (c)(3) have been deleted. This deleted subsection provided

for specific numbers for thickness and compaction. There was no Federal

counterpart to subsection (c)(3) and the deletion does not render the

Virginia program less effective.

16. 4 VAC 25-130-816/817.89 Disposal of Noncoal Mine Wastes

These sections have been amended by deleting subsections (d). On

December 17, 1991 (56 FR 65612) the Federal regulations at 30 CFR 816/

817.89 were revised by deleting paragraphs (d), which required that any

noncoal waste defined as hazardous under section 3001 of the Resource

Conservation and Recovery Act (RCRA) be handled in accordance with

subtitle C and any implementing regulations. This provision could have

been interpreted as requiring OSM and State regulatory authorities to

assume permitting, inspection and enforcement responsibilities that

Congress assigned to the Environmental Protection Agency (EPA).

Therefore, the Director finds that the deletion of subsections 4 VAC

25-130-816/817.89(d) does not render the Virginia program less

effective than the counterpart Federal regulations at 30 CFR 816/

817.89.

17. 4 VAC 25-130-816.104 Backfilling and Grading; Thin Overburden

The existing introductory paragraph is deleted and replaced by new

language. On December 17, 1991 (56 FR 65612) OSM amended the Federal

regulations at 30 CFR 816.104 concerning backfilling and grading, thin

overburden. The Director finds that as amended, 4 VAC 25-130-816.104 is

substantively identical to and therefore no less effective than the

counterpart Federal regulations at 30 CFR 816.104.

18. 4 VAC 25-130-816.105 Backfilling and Grading; Thick Overburden

The existing introductory paragraph is deleted and replaced by new

language. On December 17, 1991 (56 FR 65612) OSM amended the Federal

regulations at 30 CFR 816.105 concerning backfilling and grading, thick

overburden. The Director finds that as amended, 4 VAC 25-130-816.105 is

substantively identical to and therefore no less effective that the

counterpart Federal regulations at 30 CFR 816/105.

[[Page 34284]]

19. 4 VAC 25-130-823.11 Applicability

Subsection (a) is amended by deleting the existing language and

adding new language in its place. As amended, subsection (a) provides

that the requirements of this Part shall not apply to coal preparation

plants, support facilities, and roads of surface and underground mines

that are actively used over extended periods of time and where such

uses affect a minimal amount of land. Such uses shall meet the

requirements of Part 816 for surface mining activities and of Part 817

for underground mining activities.

At the present time, the Federal regulation at 30 CFR 823.11(a) is

suspended insofar as it relates to surface, as opposed underground,

mining (February 21, 1985; 50 FR 7278). Therefore, Virginia's proposal

to adopt 30 CFR 823.11(a), as applied to surface mining, is

inconsistent with SMCRA, as interpreted by court decisions.

OSM informed DMME that this amendment copies language in the

Federal regulations that has been suspended insofar as the language

applies to surface mines. In response, the DMME stated that the

proposed changes to 4 VAC 25-130-823.11(a) are hereby withdrawn

(Administrative Record Number VA-954).

20. 4 VAC 25-130-840.11 Inspections by the Divisions

Subsection (f)(2) has been amended to provide that reclamation has

been completed to the level established in 4 VAC 25-130-800.40 Phase

II.

Subsection (g)(4) has been amended to delete the word ``or'' and

add in its place the word ``and.'' As amended, subsection (g)(4)

applies to a site that is, or was, permitted and bonded. Subsection

(g)(4) is further amended at (g)(4)(i) to delete language pertaining to

permit revocation proceedings, and to add the word ``either'' so that

the provision applies to a permit that has either expired or been

revoked. Subsection (g)(4)(ii) has been amended to delete the word

``the'' and replace that word with the words ``any available.'' As

amended, the provision applies to any available performance bond.

Subsection (h) has been amended by deleting most of the existing

language and replacing that language with new language. In addition,

new language has been added concerning selecting an alternate

inspection frequency, and concerning public notice.

The Federal regulations at 30 CFR 840.11(g) and (h) were amended on

November 28, 1994 (59 FR 60876) to change the minimum inspection

frequency for surface coal mining and reclamation operations that have

been abandoned without completion of reclamation or abatement of

violations. The change enables regulatory authorities to eliminate

ineffective inspections to redirect resources to minesites where

inspection and enforcement will achieve intended results. Before an

abandoned site can qualify for a change in inspection frequency under

this rule, the regulatory authority must make a written finding that a

site is abandoned and that the change in inspection frequency is

appropriate based on specified environmental and public health and

safety criteria.

The Director finds the amendments to 4 VAC 25-130-840.11 to be

substantively identical to and therefore no less effective than the

counterpart Federal regulations at 30 CFR 840.11 with one exception.

The amendments to subsection 4 VAC 25-130-840.11(f)(2) differ from the

counterpart Federal regulations at 30 CFR 840.11. The Federal provision

provides that an inactive surface coal mining and reclamation operation

is one for which reclamation Phase II as defined at 30 CFR 800.40 has

been completed and the liability of the permittee has been reduced by

the State regulatory authority in accordance with the State program.

The counterpart State provision, however, provides that an inactive

surface coal mining and reclamation operation is one for which

reclamation has been completed to the level established in 4 VAC 25-

130-800.40 as Phase II. That is, the Virginia provision makes reference

to completion of the reclamation that is equivalent to Phase II, rather

than Phase II bond release. In its submittal of this amendment,

Virginia stated that the change is necessary to make the rule

applicable to the operations using Virginia's approved alternate

bonding system, which does not include provision for a bond release at

the completion of Phase II type reclamation. The Federal regulations at

30 CFR 840.11 (applicable to State regulatory authorities) and 842.11

(applicable to State regulatory authorities) and 842.11 (applicable to

Federal inspections and monitoring) were amended on August 16, 1982 (57

FR 35620). Discussion of 30 CFR 840.11(f) (what is an inactive

operation under a State program) was cross-referenced to the discussion

of 30 CFR 842.11(c) (what is an inactive operation under a Federal

program). 57 FR 35621. At the discussion to 30 CFR

842.11(c)(2)(iii)(B), OSM agreed with commenters that ``the

determination of a mine's status as active or inactive should be based

solely on the completion of Reclamation Phase II.'' Accordingly, OSM

modified 30 CFR 842.11(c)(2)(iii)(B) to reflect this intention.

Therefore, Virginia defining an inactive mine as one for which

reclamation has been completed to the level established in 4 VAC 25-

130-800.40 as Phase II, is consistent with OSM's intentions. The

Director finds 4 VAC 25-130-840.11(f)(2) to be no less effective than

the Federal regulations.

21. 4 VAC 25-130-843.12 Service of Notices of Violation, Cessation

Orders, and Show Cause Orders

Subsection (a)(2) is amended by adding new language to the end of

the first sentence. The added language provides that service may also

be made by any means consistent with the Rules of the Supreme Court of

Virginia governing service of a summons and complaint. Virginia has

also added the word ``certified'' immediately before the word ``mail.''

This latter change clarifies that the reference is to certified mail.

In its submittal of this amendment, Virginia stated that the added

reference to the Rules of the Supreme Court of Virginia is necessary

since the State agency must follow State administrative procedures for

service of documents. The Federal regulation at 30 CFR 840.13(c) states

that the procedural requirements for enforcement provisions ``shall be

the same as or similar to those provided in'' 518 and 521 of SMCRA and

consistent with the applicable Federal regulations. Federal enforcement

under 30 CFR 843.14(a) allows service that is consistent with the

Federal Rules of Civil Procedure. The Federal regulations were amended

on June 20, 1991 (56 FR 28442), to allow for increased flexibility.

Virginia is also increasing its flexibility by following its

counterpart to the Federal Rules of Civil Procedure. Therefore, the

Director finds that the amended language is not inconsistent with the

Federal regulations.

22. 4 VAC 25-130-845.17 Procedures for Assessment of Civil Penalties

Section (b) is amended by adding a reference to the Rules of the

Supreme Court of Virginia governing service of a summons and complaint.

Subsection (b)(1) is amended replacing the word ``mail'' with the word

``documents.'' New subsection (b)(2) is added to provide that failure

of the Division to serve any proposed assessment within 30 days shall

not be grounds for dismissal of all or part of such assessment unless

the person against whom the proposed penalty has been

[[Page 34285]]

assessed: (i) proves actual prejudice as a result of the delay; (ii)

makes a timely objection to the day. An objection shall be timely only

if made in the normal course of administrative review.

The Director finds that the amended language is substantively

identical to and therefore no less effective than the counterpart

Federal language at 30 CFR 845.17 with one exception. The amended

language at subsection (b) concerning reference to the Rules of the

Supreme Court of Virginia governing service of a summons and complaint

differs from the Federal regulations. As previously stated, the Federal

rule at 30 CFR 840.13(c) states that the procedural requirements for

enforcement provisions ``shall be the same as or similar to those

provided in'' 518 and 521 of SMCRA and consistent with the applicable

Federal regulations. Federal enforcement under 30 CFR 845.17(b) allows

service that is consistent with the Federal Rules of Civil Procedure.

The Federal regulations were amended on June 20, 1991 (56 FR 28442), to

allow for increased flexibility. Virginia is also increasing its

flexibility by following its counterpart to the Federal Rules of Civil

Procedure. Therefore, the Director finds that the amended language is

not inconsistent with the Federal regulations.

23. 4 VAC 25-130-845.18 Procedures for Assessment Conference

Subsection (a) is amended to change the time limit for requests for

an assessment conference from 15 days to 30 days. Subsection (b)(1) is

amended to provide that the assessment conference shall be held within

60 days from the date the conference request is received or the end of

the abatement period, whichever is later. Prior to this amendment, the

conference was to be held within 60 days from the date of issuance of

the proposed assessment or the end of the abatement period, whichever

is later. New language is added to subsection (b)(1) to provide that a

failure by the Division to hold such conference within 60 days shall

not be grounds for dismissal of all or part of an assessment unless the

person against whom the proposed penalty has been assessed proves

actual prejudice as a result of the delay.

Subsection (b)(2) has been amended to delete the words ``and the

Courthouse of the County is which [the mine] is located'' and replace

that language with ``or field office located closest to [the mine].''

In effect notices of assessment conferences will be posted at the

Division's Big Stone Gap office, and the field office located closest

to the mine. Subsection (b)(3) is amended by deleting the words

``affirm, raise, lower, or vacate the penalty,'' and replace those

words with the word ``either'' and the addition of new subsections

(b)(3)(i) and (ii). The two new subsections provide that within 30 days

after the conference is held, the conference officer shall either: (i)

Settle the issue, in which case a settlement agreement shall be

prepared and signed by the Division and by the person assessed; or (ii)

affirm, raise, lower, or vacate the penalty.

New subsection (d) is added to provide that at (d)(1) if a

settlement agreement is entered into, the person assessed will be

deemed to have waived all rights to further review of the violation or

penalty in question, except as otherwise expressly provided for in the

settlement agreement. The settlement agreement shall contain a clause

to this effect. New (d)(2) provides that if full payment of the amount

specified in the settlement agreement is not received by the Division

within 30 days after the date of signing, the Division may enforce the

agreement or rescind it and proceed according to paragraph (b)(3)(ii)

within 30 days from the date of the rescission.

The Federal regulations at 30 CFR 845.18 were revised on March 8,

1991 (56 FR 10060). The revision extended by approximately 30 days the

amount of time within which OSM may complete the necessary

administrative actions to hold an assessment conference and by 15 days

the amount of time within which a person charged with a violation may

appeal an assessment conference officer's decision to the Office of

Hearings and Appeals. The director finds that as amended, 4 VAC 25-130-

845.18 is substantively identical to and consistent with the

counterpart Federal regulations at 30 CFR 845.18.

24. 4 VAC 25-130-845.19 Request for Hearing

Subsection (a) is amended by changing from 15 days to 30 days the

number of days that a person charged with a violation may contest the

proposed penalty or the fact of the violation. On March 8, 1991 (56 FR

10060) the Federal regulations at 30 CFR 845.19 were similarly amended.

The Director finds that as amended, the State provision is

substantively identical to and consistent with the counterpart Federal

regulations.

25. 4VAC 25-130-846.17 Assessment of an Individual Civil Penalty

Subsection (b)(3) is deleted and replaced by a new subsection (c).

As amended, service shall be performed on the individual to be assessed

an individual civil penalty, by certified mail, or by any alternative

means consistent with the rules of the Supreme Court of Virginia

governing service of a summons and complaint. Service shall be complete

upon tender of the notice of proposed assessment and included

information or of the certified mail and shall not be deemed incomplete

because of refusal to accept. On June 20, 1991 (56 FR 28442) the

Federal regulations at 30 CFR 846.16(c) concerning service were

amended. As amended, the Virginia provision is substantively identical

to and therefore no less effective than the counterpart Federal

provision with one exception. The Federal provision provides that

service can be accomplished by any means consistent with the rules

governing service of a summons and complaint under rule 4 of the

Federal Rules of Civil Procedure. The revised Virginia provision that

service can be accomplished by any means consistent with the Rules of

the Supreme Court of Virginia governing service of a summons and

complaint. Federal enforcement under 30 CFR 846.17(c) allows service

that is consistent with the Federal Rules of Civil Procedure. The

Federal regulations were amended on June 20, 1991 (56 FR 28442), to

allow for increased flexibility. Virginia is also increasing its

flexibility by following its counterpart to the Federal Rules of Civil

Procedure. therefore, the Director finds that the amended language is

not inconsistent with the Federal regulation.

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 (USFWS) responded and stated that it

appears that no impacts to Federally listed or proposed species or

critical habitat will occur and, therefore, USFWS had no comments on

the proposed amendments. The U.S. Department of Agriculture, Natural

Resources Conservation Service (NRCS) responded and stated that the

proposed amendments seem to conform more closely to presently practiced

reclamation goals and standards, and better suits their intended use.

Therefore, the NRCS stated that the amendments should be accepted. The

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

responded and stated that the proposed amendment does not contain any

[[Page 34286]]

information that would be conflicting to MSHA regulations.

Public Comments

There were no public comments submitted.

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. The EPA did not provide any comments.

V. Director's Decision

Based on the findings above, and except as noted below, the

Director is approving Virginia's amendment as submitted by Virginia on

December 1, 1997, and clarified by letter dated March 6, 1998.

4 VAC 25-130-780.25(c)(3) is approved to the extent that any other

design standard that DMME may accept in lieu of the engineering

standards will be first be approved through the state program amendment

process.

4 VAC 25-130-784.16(c)(3) is approved to the extent that any other

design standard that DMME may accept in lieu of the engineering

standard will first be approved through the state program amendment

process.

4 VAC 25-130-817.46(c)(2) is approved to the extent that the DMME

will delete the erroneous sentence fragment that references Paragraph

(c)(2)(i).

The Director notes that the amendments to 4 VAC 25-130-823.11(a)

were withdrawn by the DMME.

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 section 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 29, 1998.

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.

* * * * *

[[Page 34287]]

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Original amendment submission

date Date of final publication Citation/description

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* * * * * *

December 1, 1997.............. June 24, 1998................. VA Code Sections 701.5; 779.22 [deletion],

.25(k) [deletion]; 780.23, .25(a),

(a)(2)(a)(3), (b), (c)(3), (f), 35(b);

783.25(k) [deletion]; 784.15, .16(a), (a)(2),

(a)(3), (b), (c)(3), (f), .23(c); 800.40(a)(3);

816.46(a)(2), (b)(3), (b)(5), (c)(2),

.49(a)(1), (a)(4)(i) & (ii), (5), (6), (9),

(11), (c)(2), .74(a) through (g), .81(a),

(c)(3) [deletion], .89(d) [deletion], .104,

.105; 817.46(a)(2), (b)(3), (b)(5), (c)(2)

.49(a)(1), (a)(4)(i) & (ii), (5), (6), (9),

(11), (c)(2), .74(a) through (g), .81(a),

(c)(3) [deletion], .89(d) [deletion];

840.11(f)(2) & (g)(4), (h); 843.14(a)(2);

845.17(b) through (b)(2)(ii), .18(a), (b)

through (b)(3)(ii), (d)(1) & (2), .19(a) and

846.17(b)(3) [deletion] and (c).

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[FR Doc. 98-16812 Filed 6-23-98; 8:45 am]

BILLING CODE 4310-05-M