Virginia Regulatory Program

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 946

[VA-114-FOR]

Virginia Regulatory Program

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

Interior.

ACTION: Proposed rule; public comment period and opportunity for public

hearing.

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

Virginia regulatory program (hereinafter referred to as the Virginia

program) under the Surface Mining Control and Reclamation Act of 1977

(SMCRA). The proposed amendment clarifies the State's interpretation of

its regulations concerning the disposal of excess spoil. The amendment

is intended to improve the operational efficiency of the Virginia

program.

DATES: Written comments must be received by 4:00 p.m., on January 22,

1999. If requested, a public hearing on the proposed amendment will be

held on January 19, 1999. Requests to speak at the hearing must be

received by 4:00 p.m., on January 7, 1999.

ADDRESSES: Written comments and requests to speak at the hearing should

be mailed or hand delivered to Mr. Robert A. Penn, Director, Big Stone

Gap Field Office at the first address listed below.

Copies of the Virginia program, the proposed amendment, a listing

of any scheduled public hearings, and all written comments received in

response to this document will be available for public review at the

addresses listed below during normal business hours, Monday through

Friday, excluding holidays. Each requestor may receive one free copy of

the proposed amendment by contracting OSM's Big Stone Gap Field Office.

Office of Surface Mining Reclamation and Enforcement, Big Stone Gap

Field Office, 1941 Neeley Road, Suite 201, Compartment 116, Big Stone

Gap, Virginia 24219, Telephone: (703) 523-4303

or

Virginia Division of Mined Land Reclamation, P.O. Drawer 900, Big Stone

Gap, Virginia 24219, Telephone: (703) 523-8100.

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

Stone Gap Field Office, Telephone: (703) 523-4303.

SUPPLEMENTARY INFORMATION:

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 can be

found at 30 CFR 946.12, 946.15, and 946.16.

II. Discussion of the Proposed Amendment

By letter dated November 24, 1998 (Administrative Record No. VA-

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

submitted a clarification to its interpretation of its regulations at 4

VAC 25-130-816/817.76 concerning the disposal of excess spoil.

The proposed amendment is as follows:

The Division of Mined Land Reclamation proposed to clarify the

interpretation of 4 VAC 25-130-816.76. The regulation states that

excess spoil may be placed on ``another area under a permit issued

pursuant to the Act, or on abandoned mine lands under contract for

reclamation according to the Abandoned Mine Land (AML) Guidelines

and approved by the Division of Mines Land Reclamation.'' The

Virginia Division of Mined Land Reclamation interprets this

regulation to mean excess spoil from a permitted coal mining

operation may be used by the Division of Mined Land Reclamation to

reclaim a bond forfeiture site or an AML project site. Through any

of the contracting procedures available to the agency, including

negotiated, non-cost, or competitively bid contracts, the agency may

cause the placement of excess spoil on the forfeiture or AML site in

accordance with the provisions of a contract executed between the

Division and a contractor. The spoil material removed from the

permitted area will be demonstrated to be excess spoil and

unnecessary for the achievement of approximate original contour

within the permitted area.

The forfeiture or AML project must be:

1. Located in general proximity to the permit area;

2. On the AML inventory list or bond forfeiture list; and

3. Referenced in the permit plans, along with the demonstration

that the spoil is excess and identified on the permit map. However,

the forfeiture or AML site will not be included in the permit

acreage; will not be subject to the requirements for permits,

performance bonds; and will not delay or otherwise affect bond

release on the permitted area.

In the event the contractor fails to perform the work specified

in the ``no-cost contract,'' the Division will invoke the

appropriate

[[Page 71050]]

contract sanctions to cause completion of the contract terms. When

the contractor and the mine operator happen to be one and the same,

the contract will include an additional default provision. In this

case, the contract will specify that the mine operator will revise

the permit boundary to include the area upon which the excess spoil

was placed pursuant to the ``no-cost contract.'' The permit

performance bond requirements will become applicable.

III. Public Comment Procedures

In accordance with the provisions of 30 CFR 732.17(h), OSM is now

seeking comment on whether the amendments proposed by Virginia satisfy

the applicable program approval criteria of 30 CFR 732.15. If the

amendments are deemed adequate, they will become part of the Virginia

program.

Written Comments

Written comments should be specific, pertain only to the issues

proposed in this rulemaking, and include explanations in support of the

commenter's recommendations. Comments received after the time indicated

under DATES or at locations other than the Big Stone Gap Field Office

will not necessarily be considered in the final rulemaking or included

in the Administrative Record.

Public Hearing

Persons wishing to comment at the public hearing should contact the

person listed under FOR FURTHER INFORMATION CONTACT by close of

business on January 7, 1999. If no one requests an opportunity to

comment at a public hearing, the hearing will not be held.

Filing of a written statement at the time of the hearing is

requested as it will greatly assist the transcriber. Submission of

written statements in advance of the hearing will allow OSM officials

to prepare adequate responses and appropriate questions.

The public hearing will continue on the specified date until all

persons scheduled to comment have been heard. Persons in the audience

who have not been scheduled to comment, and who wish to do so, will be

heard following those scheduled. The hearing will end after all persons

scheduled to comment and persons present in the audience who wish to

comment have been heard.

Public Meeting

If only one person requests an opportunity to comment at a hearing,

a public meeting, rather than a public hearing, may be held. Persons

wishing to meet with OSM representatives to discuss the proposed

amendments may request a meeting at the Big Stone Gap Field Office by

contacting the person listed under For FURTHER INFORMATION CONTACT. All

such meetings will be open to the public and, if possible, notices of

meeting will be posted in advance at the locations listed under

ADDRESSES. A written summary of each public meeting will be made part

of the Administrative Record.

Any disabled individual who has need for a special accommodation to

attend a public hearing should contact the individual listed under FOR

FURTHER INFORMATION CONTACT.

IV. 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: December 16, 1998.

Allen D. Klein,

Regional Director, Appalachian Regional Coordinating Center.

[FR Doc. 98-33919 Filed 12-22-98; 8:45 am]

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