Virginia Abandoned Mine Land Reclamation Plan

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 946

[VA-111-FOR]

Virginia Abandoned Mine Land Reclamation Plan

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

Interior.

ACTION: Final rule; approval of amendment.

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SUMMARY: OSM is announcing the approval of a proposed amendment to the

Virginia Abandoned Mine Land Reclamation (AMLR) Program (hereinafter

referred to as the Virginia Program) under the Surface Mining Control

and Reclamation Act of 1977 (SMCRA), 30 U.S.C. 1201 et seq., as

amended. The proposed amendment makes changes to the Ranking and

Selection section and to the AML Water Project Evaluation form. The

amendment is intended to revise the Virginia program to be consistent

with SMCRA, and to improve the efficiency of the Virginia program.

EFFECTIVE DATE: February 5, 1998.

FOR FURTHER INFORMATION CONTACT: Mr. Robert A. Penn, Director, Big

Stone Gap

[[Page 5889]]

Field Office, Telephone: (540) 523-4303.

SUPPLEMENTARY INFORMATION:

I. Background on the Virginia Plan

II. Submission of the Proposed Amendment

III. Director's Findings

IV. Summary and Disposition of Comments

V. Director's Decision

VI. Procedural Determinations

I. Background on the Virginia Plan

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

approved the Virginia program. Background 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 AMLR program amendments are identified at 30

CFR 946.20 and 946.25.

II. Submission of the Proposed Amendment

By letter dated September 19, 1997 (Administrative Record Number

VA-926), the Division of Mined Land Reclamation (DMLR) of the

Department of Mines, Minerals and Energy (DMME) of the Commonwealth of

Virginia submitted changes to the approved Virginia plan. The amendment

makes changes to the Ranking and Selection section of the Virginia

plan, concerning Acid Mine Drainage Abatement--Treatment. The amendment

also changes the AML Water Project Evaluation form.

OSM announced receipt of the proposed amendment in the October 14,

1997, Federal Register (62 FR 53275), and in the same document opened

the public comment period and provided an opportunity for a public

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

period closed on November 13, 1997. No public hearing was requested, so

none was held.

III. Director's Findings

As discussed below, the Director, in accordance with SMCRA and 30

CFR 884.14 and 884.15, finds that the proposed plan amendments

submitted by Virginia on September 19, 1997, meet the requirements of

the corresponding Federal regulations and is consistent with SMCRA.

Ranking and Selection 884.13(c)(2)

In this section, Virginia changed the heading of the paragraph

titled ``Acid Mine Drainage Abatement--Treatment'' to read ``Set Aside

Funds,'' revised the language of that subsection to include the

provisions of Part A of section 402(g)(6) of SMCRA.

The revised language is as follows:

Set Aside Funds

In accordance with Section 402(g)(6) of SMCRA, Virginia may,

without regard to the 3 year limitation referred to in Section

402(g)(1)(D) of SMCRA, receive and retain up to 10 percent of the

total grants made annually under Section 402(g)(1) and (5) of SMCRA

by the Secretary for deposit into either:

A. A special trust fund established under State law pursuant to

which such amounts (together with all interest earned on such

amounts) are expended by Virginia solely to achieve the priorities

stated in section 403(a) of SMCRA after September 30, 1995, or

B. An acid mine drainage abatement and treatment fund

established under State law as provided for under 30 CFR Part 876.

An interest bearing acid mine drainage abatement and treatment fund

will be utilized by Virginia, in consultation with the Natural

Resources Conservation Service, to implement acid mine drainage

abatement--treatment plans approved by the Secretary of the

Interior.

The remainder of the previously-existing section (formerly entitled

``Acid Mine Drainage Abatement--Treatment'' remains unchanged, and is

quoted below.

These plans shall provide for the comprehensive abatement of the

causes and treatment of the effects of acid mine drainage within

qualified hydrologic units affected by coal mining practices. The

plan shall include, but shall not be limited to, each of the

following:

(a) An identification of the qualified hydrologic unit.

(b) The extent to which acid mine drainage is affecting the

water quality and biological resources within the hydrologic unit.

(c) An identification of the sources of acid mine drainage

within the hydrologic unit.

(d) An identification of individual projects and the measures

proposed to be undertaken to abate and treat the causes or effects

of acid mine drainage within the hydrologic unit.

(e) The cost of undertaking the proposed abatement and treatment

measures.

(f) An identification of existing and proposed sources of

funding for such measures.

(g) An analysis of the cost-effectiveness and environmental

benefits of abatement and treatment measures.

Under this program, the term ``qualified hydrologic unit'' means

a hydrologic unit.

(a) in which the water quality has been significantly affected

by acid mine drainage from coal mining practices in a manner which

adversely impacts biological resources; and

(b) which contains lands and water that are:

1. eligible pursuant to Section 404 and include any of the

priorities stated in SMCRA paragraph (1), (2), or (3) of Section

403(a); and

2. proposed to be the subject of the expenditures by the State

from amounts available from the forfeiture of bonds required under

Section 509 or from other State sources to mitigate acid mine

drainage.

The Director finds that the provisions of this amendment are either

substantively identical to or no less stringent than Sec. 402 (g)(6)

and (g)(7) of SMCRA and meet the requirements of the Federal

regulations at 30 CFR 844.13(c)(2) and can be approved.

AML Water Project Evaluation Form

The AML Water Project Evaluation form is currently part of the

approved Virginia program. Virginia changed four sections of the form,

and provided the following rationale for the changes.

Appropriate Project Costs (Cost per Connection)

That this section was revised to more realistically reflect the

cost/hook-ups being experienced. Most cost/hook-ups now reflect a

10,000-20,000 range. This is because of the high cost for

construction due to the distance between households, and the

mountainous terrain.

Affordability

``Costs for 4,200 gal. of treated water'' was changed to read

``Costs for 3,500 gal. of treated water'' to show the average use

and to match usage rates used by other funding agencies as reflected

in the review manual application.

Level of Commitment of Non-AML Funds

The points award were modified to encourage local funding and

leverage AML funding to the maximum extent possible.

AML Bonus Award

The new review category is meant to promote and encourage awards

to proposed projects which incorporate regionalization and

consolidated management. Regionalization of water systems reduces

costs and promotes efficiency in providing water to the greatest

number of households. Points awarded for this will be between 1-5,

and a total perfect score will now be 105. The average score on

projects is 60-80.

The Director finds that the explanation provided by Virginia for

the revision to the form appears reasonable and justified. Further, the

rationale also appears to reflect Virginia's intent to further direct

Virginia's efforts toward achieving AML reclamation and hazard

abatement consistent with the reclamation priorities system contained

within Sec. 403(a) and Sec. 411 of SMCRA. Therefore, the Director finds

that the proposed amendments are not inconsistent with the Federal

regulations at 30 CFR 884.13(c)(2) concerning ranking and selection and

can be approved.

In addition to the above changes to the form, Virginia requested

that the AML Water Project Evaluation form--figure 2 be removed from

the AML State Reclamation Plan and placed into the Administrative

Record. However, the form will still be referenced in the

[[Page 5890]]

Virginia plan. Virginia explained that the dynamic nature of this form

may require that the form be further amended in the future. Therefore,

removal of the form from the Virginia plan and placing the form

separately into the Administrative Record will allow the form to be

quickly amended as needed. The Director is complying with the State's

request but notes, however, that since the form is part of Virginia's

approved process for ranking and selecting water projects under 30 CFR

884.13(c)(2) and Part 874, any future substantive changes made to the

form must be submitted to OSM for approval as part of a proposed

program amendment. Therefore, the Director is placing the AML Water

Project Evaluation form into the administrative record at

Administrative Record Number VA-927 with the understanding that any

future substantive changes made to the form must be submitted to OSM

for approval as part of a proposed program amendment.

IV. Summary and Disposition of Comments

Public Comments

The Director solicited public comments and provided an opportunity

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

received in response to the public comment period that ended on

November 13, 1997. Because no one requested an opportunity to speak at

a public hearing, no hearing was held.

Federal Agency Comments

Pursuant to 884.14(a)(2) and 884.15(a), OSM solicited comments on

the proposed amendment from various other Federal agencies with an

actual or potential interest in the Virginia plan (Administrative

Record number VA-928). Responses were received from the U.S. Fish and

Wildlife Service (USFWS), U.S. Department of Agriculture, Natural

Resources Conservation Service (NRCS), and the U.S. Department of

Labor, Mine Safety and Health Administration (MSHA).

MSHA responded that the proposed measures appear to be adequate to

serve the intended purpose. NRCS stated that the amendments be accepted

with one comment noted. NRCS said that part VI--Bonus Awards of the AML

Water Project Evaluation form lists no ranking criteria and thus

appears to be subjective. In response, the Director notes that Virginia

has clearly identified the focus of the 5-point bonus award and does

have criteria for the bonus award. In its submittal of this amendment,

Virginia explained that the bonus award will be awarded to projects

which incorporate regionalization and consolidated management. The DMLR

noted that such regionalization of water systems reduces costs and

promotes efficiency in providing water to the greatest number of

households. In addition, by letter dated December 5, 1997

(Administrative Record Number VA-940), the DMLR responded to the NRCS

comment. The DMLR stated that regional project criteria may include

interconnection with other authorities, consolidation of management,

operation, maintenance or distribution systems among smaller system

authorities or guidance of significant local funding from more than one

service provider in a regional project. DMLR further stated that

projects with a regional scope will be awarded a greater number of

points if executed contracts are finalized versus projects where there

has been merely a discussion of a regional project, but no specific

activities have been completed which demonstrate progress toward

regionalization. As noted above in the findings, the Director has

determined that the proposed provision is not inconsistent with the

Federal regulations at 30 CFR 884.13(c)(2) concerning ranking and

selection and can be approved.

USFWS responded (Administrative Record Number VA-937) and

recommended that subparagraph (b) of the section newly titled ``Set

Aside Funds'' be revised by adding the words ``A physical, chemical,

and biological assessment of '' to the beginning of the subparagraph.

USFWS explained that the change would clarify how the extent of the

acid mine drainage effects to water quality and biological resources

should be assessed. In response, the Director notes that the provision

commented on by USFWS is not being amended by Virginia and, therefore,

is beyond the scope of this amendment. In addition, the provision

commented on by the USFWS is identical to its counterpart in SMCRA at

Sec. 402(g)(7)(B)(ii).

Environmental Protection Agency (EPA)

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

obtain the written concurrence of the Administrator of EPA with respect

to those provisions of the proposed plan amendment that relate to air

or water quality standards promulgated under the authority of the Clean

Air Act (42 U.S.C. 7401 et seq.) or the Clean Water Act (33 U.S.C. 1252

et seq.). The Director has determined that the proposed amendments

contain 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 amendments from the EPA. No comments were received from the

EPA.

State Historical Preservation Officer (SHPO) and the Advisory Council

on Historic Preservation (ACHP)

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

proposed amendment from the SHPO and ACHP. No comments were received.

V. Director's Decision

Based on the above findings, the Director is approving the proposed

AMLR plan amendment as submitted by Virginia on September 19, 1997.

The Federal regulations at 30 CFR 946.25, codifying decisions

concerning the Virginia plan amendments, are being amended to implement

this decision. This final rule is being made effective immediately to

expedite the State plan amendment process and to encourage States to

bring their plans 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 proposed 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 and Tribal abandoned mine land reclamation plans and revisions

thereof since each such plan is drafted and promulgated by a specific

State or Tribal, not by OSM. Decisions on proposed abandoned mine land

reclamation plans and revisions thereof submitted by a State or Tribe

are based on a determination of whether the submittal meets the

requirements of Title IV of SMCRA (30 U.S.C. 1231-1243) and 30 CFR

Parts 884 and 888.

National Environmental Policy Act

No environmental impact statement is required for this rule since

agency decisions on proposed State and Tribal abandoned mine land

reclamation plans

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and revisions thereof are categorically excluded from compliance with

the National Environmental Policy Act (42 U.S.C. 4332) by the Manual of

the Department of the Interior (516 DM 6, appendix 8, paragraph

8.4B(29)).

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

corresponding Federal regulations for which an economic analysis was

prepared and certification made that such regulations would 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 in the analyses for the corresponding 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 964

Intergovernmental relations, Surface mining, Underground mining.

Dated: January 16, 1998.

Ronald C. Recker,

Acting Regional Director, Appalachian Regional Coordinating Center.

For the reasons set out in the preamble, title 30, chapter VII,

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

below:

PART 946--VIRGINIA

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

follows:

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

2. Section 946.25 is amended in the table for paragraph (a) by

adding a new entry in chronological order by ``Date of Final

Publication'' to read as follows:

Sec. 946.25 Approval of Virginia abandoned mine land reclamation plan

amendments.

(a) * * *

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Original amendment submission Date of final

date publication Citation/description

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* * * *

September 19, 1997............ [Insert date of Revisions to the

publication in Virginia State

the Federal Reclamation Plan

Register]. corresponding to 30

CFR 884.13(c)(2)--

Ranking and

Selection: Set Aside

Funds; and the AML

Water Project

Evaluation form.

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[FR Doc. 98-2779 Filed 2-4-98; 8:45 am]

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