Virginia Regulatory Program

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 946

[VA-116-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.

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

SUMMARY: OSM is announcing it received 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 consists of the following: a statutory

change to the Virginia Act at section 45.1-235 C as enacted in the 1999

session of the Virginia General Assembly; proposed regulation changes

at section 4 VAC 25-130-700.5 to the definitions of ``government

financed construction'' and ``qualified laboratory;'' and proposed

regulation changes to section 4 VAC 25-130 Part 795 concerning the

small operator assistance program (SOAP). The amendment is intended to

revise the Virginia program to be consistent with the corresponding

Federal provisions.

DATES: Your written comments must be received by 4:00 p.m., on

September 20, 1999. If you request a public hearing on the proposed

amendment, it will be held on September 14, 1999. If you request to

speak at the hearing, your request must be received by 4:00 p.m., on

September 7, 1999.

ADDRESSES: Your 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 that we

receive in response to this document will be available for your review

at the addresses listed below during normal business hours, Monday

through Friday, excluding holidays. Each person 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.

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. You can find background information on

the Virginia program, including the Secretary's findings, the

disposition of comments, and the conditions of approval in the December

15, 1981, Federal Register (46 FR 61085-61115). You can find later

actions concerning the conditions of approval and program amendments at

30 CFR 946.12, 946.13, 946.15, and 946.16.

II. Discussion of the Proposed Amendment

By letter dated August 2, 1999 (Administrative Record No. VA-978),

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

an amendment to the Virginia program. This amendment is the State's

response to changes made to the Federal SOAP regulations at 30 CFR Part

795, and to the Federal definition of ``government-financed

construction'' at 30 CFR 707.5.

The proposed amendment consists of the following: a statutory

change to the Virginia Act at section 45.1-235 C as enacted in the 1999

session of the Virginia General Assembly; proposed regulation changes

at section 4 VAC 25-130-700.5 concerning the definitions of

``government financed construction'' and ``qualified laboratory;'' and

proposed regulation changes to section 4 VAC 25-130 Part 795 concerning

the SOAP program. The amendments are described below.

Statute

Section 45.1-235 of the Code of Virginia. Subsection 45.1-235 C,

concerning SOAP, is amended by deleting the existing language and

adding in its place the following language.

To the extent that funds are available from the federal Office

of Surface Mining, the Director shall provide for permit application

assistance to small operators as provided in Section 507 (c) and (h)

of the federal act. Such assistance shall be provided in accordance

with regulations adopted by the Director.

Regulations

1. 4 VAC 25-130-700.5 Definitions

The definition of ``government-financed construction'' is amended

to provide for less than 50 percent government funding. As amended,

``government financed construction'' means construction funded 50

percent or more by funds appropriated from a government financing

agency's budget or obtained from general revenue bonds. Funding at less

than 50 percent may qualify if the construction is undertaken as an

approved reclamation project under Title IV of the Federal Act.

Construction funded through government financing agency guarantees,

insurance, loans, funds obtained through industrial revenue bonds or

their equivalent, or in-kind payments does not qualify as government-

financed construction.

The definition of ``qualified laboratory'' is amended to add the

phrase ``or other services as specified at 4 VAC 25-130-795.9.'' With

this addition, ``qualified laboratory'' means a designated public

agency, private firm, institution, or analytical laboratory which can

prepare the required determination of probable hydrologic consequences

or statement of results of test borings or core samplings or other

services as specified at 4 VAC 25-130-795.9 under the SOAP program and

which meets the standards of 4 VAC 25-130-795.10.

2. 4 VAC 25-130-795.1 Scope and Purpose

This provision is amended by deleting the words ``program

administrator'' and replacing those words with the word ``Division.''

3. 4 VAC 25-130-795.6 Eligibility for Assistance

This provision is amended at subdivision 795.6(a)(2) by changing

the qualifying annual tonnage limit from 100,000 tons to 300,000 tons.

In addition, at subdivisions 795.6(a)(2)(i) and (ii), the pro rata

share is increased from 5 percent to 10 percent.

4. 4 VAC 25-130-795.7 Filing for Assistance

This provision is amended at subdivision 795.7(e) by deleting

subdivisions 795.7(e)(2) and (5), and renumbering the remaining

provisions. Deleted subdivision 795.7(e)(2) required the names of

property owners in the affected and adjacent areas. Deleted subdivision

795.7(e)(5) required the location of existing structures and developed

water resources within the affected and adjacent areas.

[[Page 45490]]

5. 4 VAC 25-130-795.8 Application Approval and Notice

The sole sentence of this provision is deleted and replaced with

the following. New subdivision 795.8(a) provides that if the Division

finds the applicant eligible, the Division shall inform the applicant

in writing that the application is approved. New subdivision 795.8(b)

provides that if the Division finds the applicant ineligible, the

Division shall inform the applicant in writing that the application is

denied and shall state the reasons for denial.

6. 4 VAC 25-130-795.9 Program Services and Data Requirements.

In addition to non-substantive changes, the following changes are

made to this provision. At subdivision 795.9(a), the phrase ``and

provide other services'' is added. With this change, a ``qualified

laboratory'' may be paid for other services in addition to the

determination and statement referenced in subdivision 795.9(b).

At subdivision 795.9(b)(1), the phrase ``including the engineering

analysis and designs necessary for the determination'' is added. Also,

the citation ``4 VAC 25-130-784.14(g)'' is changed to ``. . .

784.14(e).''

At subdivision 795.9(b)(2), the words ``drilling and'' are added

immediately following the first word of the sentence.

New subdivisions 795.9(b)(3), (4), (5), and (6) are added. New

795.9(b)(3), provides for the development of cross-section maps and

plans required by 4 VAC 25-130-779.25 and 783.25. New 795.9(b)(4)

provides for the collection of archaeological and historic information

and related plans required by 4 VAC 25-130-779.12(b), 783.12(b),

780.31, 784.17, and any other archaeological and historic information

required by the Director. New 795.9(b)(5) provides for pre blast

surveys required by 4 VAC 25-130-780.13. New 795.9(b)(6) provides for

the collection of site-specific resources information, the production

of protection and enhancement plans for fish and wildlife habitats

required by 4 VAC 25-130-780.16 and 784.21, and information and plans

for any other environmental values required by the Division under the

Act.

7. 4 VAC 25-130-795.10 Qualified Laboratories

Subdivision 4 VAC 25-130-795.10(a)(5) is amended by adding language

which provides that other appropriate methods or guidelines for data

acquisition may be approved by the Division. Subdivision 795.10(b) is

amended to provide that subcontractors may be used to provide some of

the required services provided their use is identified at the time a

determination is made that a firm is qualified and they meet

requirements specified by the Division. Prior to this amendment,

subdivision 795.10(b) provided that subcontractors had to meet all

applicable requirements for area of specialization pursuant to the

program and this section. Subdivisions 795.10(c) and (d) are deleted.

Subdivision 795.10(c) concerned the qualification of out-of-state

firms. Subdivision 795.10(d) provided that review and approval of all

laboratory qualifications would be made every 12 months.

8. 4 VAC 25-130-795.12 Applicant Liability

In subdivision 4 VAC 25-130-795.12(a), the term ``applicant'' is

deleted and replaced by the phrase ``coal operator who has received

assistance pursuant to 4 VAC 25-130-795.9.'' Also, the phrase

``laboratory services performed pursuant to this Part'' is changed to

read ``services rendered.''

Subdivision 795.12(a)(2) is amended to change the 100,000 ton limit

to 300,000 tons. This provision is also amended to provide that the

tonnage will be determined during the 12 months immediately following

the date on which the operator is issued the surface coal mining and

reclamation permit. Prior to this change, the tonnage was determined

during any consecutive 12-month period either during the term of the

permit for which assistance is provided or during the first 5 years

after issuance of the permit whichever is shorter.

Subdivision 795.12(a)(3) is amended to change the 100,000 ton limit

to 300,000 tons. This provision is also amended to provide that if the

mining rights granted under the permit are sold, transferred or

assigned to another person, the tonnage will be determined during the

12 months immediately following the date on which the permit was

originally issued. Prior to this change, the tonnage was determined

during any 12-month period of the remaining term of the permit.

Subdivisions 4 VAC 25-130-795.12(b) and (c) are deleted.

Subdivision 795.12(b) concerned the submission of notarized production

reports. Subdivision 795.12(c) defined the term ``attributed

production.''

III. Public Comment Procedures

In accordance with the provisions of 30 CFR 732.17(h), we are now

seeking your comments on whether the amendments proposed by Virginia

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

we determine that the amendments are adequate, they will become part of

the Virginia program.

Written Comments

Your written comments should be specific, pertain only to the

issues proposed in this rulemaking, and include explanations in support

of your recommendations. If your comments are received after the time

indicated under DATES or at locations other than the Big Stone Gap

Field Office, we will not necessarily consider them in the final

rulemaking or include them in the Administrative Record.

Public Hearing

If you wish to comment at the public hearing, you should contact

the person listed above under FOR FURTHER INFORMATION CONTACT by close

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

comment at a public hearing, we will not hold a hearing.

We request that you file a written statement at the time of the

hearing, because it will greatly assist the transcriber. If you submit

a written statement to OSM before the hearing, it will allow us 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. If you

wish to meet with us to discuss the proposed amendments, you may

request a meeting at the Big Stone Gap Field Office by contacting the

person listed above 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 above under

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

of the Administrative Record.

If you are a disabled individual who has need for a special

accommodation to attend a public hearing, please contact the person

listed above under FOR FURTHER INFORMATION CONTACT.

[[Page 45491]]

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: August 12, 1999.

Allen D. Klein,

Regional Director, Appalachian Regional Coordinating Center.

[FR Doc. 99-21643 Filed 8-19-99; 8:45 am]

BILLING CODE 4310-05-P