Virginia Regulatory Program

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 946

[VA-113-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 provides clarification of an existing

State directive concerning permit revisions. The amendment is intended

to improve the operational efficiency of the State 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 contacting 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.

[[Page 71048]]

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, 946.13, 946.15, and 946.16.

II. Discussion of the Proposed Amendment

By letter dated November 17, 1998 (Administrative Record No. VA-

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

submitted a clarification dated September 18, 1998, to its existing

policy for implementing its regulations at 4VAC 25-130-774.13(b)(2)

concerning permit revisions. The clarification informs permittees of

the informational and procedural requirements for revisions that

propose to change an existing permit boundary.

The proposed clarification is as follows:

The following information provides guidance to improve

consistency and to enable you to properly plan for any addition of

acreage to your permit. The Virginia law and regulation dealing with

such additions conform to the federal definitions.

The Virginia Regulation at 4 VAC 25-130-774.13 (d) requires:

Request to change permit boundary. Any extension to the area covered

by the permit, except incidental boundary revisions, shall be made

by application for a new permit.

Consistent with this regulation, any request for a non-

incidental extension to the area covered by an existing permit shall

be made by application for a new permit using the Division's permit

application forms DMLR-PT-034e, DMLR-PT-034p, DMLR-PT-034o. It

should be noted that these new forms are the same forms that the

Division will use to implement Electronic Permitting in a few

months. Implementing usage of these forms at this time will be a

precursor to Electronic Permitting and will allow permittees to

become familiar with the format of what will be required for

Electronic Permitting. Permittees may use one of two options in

submitting the application for a new permit:

1. The application may be for a completely new permit for the

proposed area, with a new permit number issues and new issuance,

expiration and anniversary dates assigned; or

2. The application may combine the existing permit area with the

proposed additional area. The permit number would remain the same,

as well as the permit issuance, expiration and anniversary date.

This application may reference any applicable parts of the

previously approved permit plans (with copies of the relevant

sections included), but it shall provide all the information

necessary for a new permit on the proposed additional area. This new

information shall also include any portions of the plans for the

previously approved permit area, if they are affected by the

addition of the new area and shall be revised. The application will

be processed as a new permit application.

With these two options, the applicant retains the discretion to

apply for a separate and distinct permit for the new area, resulting

in two separate permits with different permit numbers or to retain

the existing permit number. However, when DMLR finds the new area is

not a functional extension of the existing permit, but rather a

separate operation, the Division may require an application for a

separate permit.

Incidental boundary revisions (IBR) include only minor changes

to permit boundaries that are incidental to the approved operations;

such as road alignment, drainage alignment, parking areas,

additional entries/punch-outs for underground operations, or other

non-coal removal functions necessary for the orderly and continuous

conduct of the approved operation.

A proposal to increase the area available for coal removal will

not be treated as an IBR unless the coal removal is incidental to

the primary purpose of the revision. For example, if the realignment

of a road also involved mining a small amount of coal in the road

cut, and/or the increase in area is minor then it may be deemed an

IBR. The Division may also approve small adjustments to the permit

boundary as an IBR when there is no net increase in the permitted

area.

III. Public Comment Procedures

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

seeking comment on whether the amendment proposed by Virginia satisfies

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

amendment is deemed adequate, it 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 Hearing

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

meetings 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

[[Page 71049]]

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. 98-33920 Filed 12-22-98; 8:45 am]

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