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: 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 provides clarification of an existing State policy

directive concerning permit revisions. The amendment is intended to

improve the operational efficiency of the State program.

EFFECTIVE DATE: December 13, 1999.

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. 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 on conditions of approval and program amendments at 30 CFR

946.11, 946.12, 946.13, 946.15, and 946.16.

II. Submission of the 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 guidelines concerning the applicable information and procedural

standards for permit revisions. The Virginia regulations at 4VAC 25-

130-774.13(b)(2) require the Virginia Division of Mined Land

Reclamation to establish such guidelines.

We announced receipt of the proposed amendment in the December 23,

1998, Federal Register (63 FR 71047), invited public comment, and

provided an opportunity for a public hearing on the adequacy of the

proposed amendment. The comment period closed on January 22, 1999. No

one requested to speak at a public hearing, so no hearing was held.

III. Director's Findings

Following, according to SMCRA and the Federal regulations at 30 CFR

732.15 and 732.17, are our findings concerning the proposed amendment.

The clarification to the Virginia program 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 issued 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

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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.

The Federal regulations concerning requests to change permit

boundaries occur at 30 CFR 774.13--Permit revisions. 30 CFR 774.13(d)

provides the following: ``Request to change permit boundary. Any

extensions to the area covered by the permit, except incidental

boundary revisions, shall be made by application for a new permit. The

Virginia regulations at 4 VAC 25-130-774.13(d) mirror the Federal

requirement.

The Virginia amendment does not alter the requirement to make

application for a new permit for all boundary revisions, except

incidental boundary revisions. The amendment identifies the permit

application forms to be used, and indicates that the forms will also be

used with future applications under Electronic Permitting. The

amendment further identifies two options permittees may use in

submitting the application for a new permit. There are no direct

counterparts to these policy guidelines in the Federal regulations at

30 CFR 774.13(d) concerning requests to change permit boundaries. We

find, however, that the policy guidance does not change the

requirements for a new permit (information, public notice and hearing

opportunities) that revisions, except for incidental boundary

revisions, must meet. Therefore, the guidance is consistent with the

Federal regulations at 30 CFR 774.13(d), and can be approved.

The State policy guidance also addresses incidental boundary

revisions (IBR). The Federal regulations provide no specific guidance

on IBR's, nor do they define the term ``incidental.'' Thus, the scale

and extent of incidental boundary revisions is left to the State

regulatory authority to incorporate into the State program.

Classification as an incidental boundary revision still requires review

and evaluation by the State. In 1986 (51 FR 42548), we approved

Virginia's guidelines for identifying significant and minor permit

revisions. The current amendment adds to, but does not replace, those

guidelines. In cases where coal removal is involved, we believe that to

be consistent with 30 CFR 774.13(d), coal removal cannot be the primary

purpose of an IBR. The Virginia policy requires that coal removal must

be incidental to the primary purpose of the IBR.

We find that the State's policy concerning IBR's does not render

the Virginia program less effective than 30 CFR 774.13(d), that

Virginia has reasonably exercised its discretion, and that the policy

is not inconsistent with SMCRA and the Federal regulations. Therefore,

the policy can be approved.

IV. Summary and Disposition of Comments

Federal Agency Comments

According to 30 CFR 732.17(h)(11)(i), we solicited comments on the

proposed amendment from various Federal agencies with an actual or

potential interest in the Virginia program. The U.S. Department of

Labor, Mine Safety and Health Administration (MSHA) responded and said

that there appears to be no conflict with MSHA regulations and/or

procedures and that the amendment is deemed appropriate.

The U.S. Department of Agriculture, Natural Resources Conservation

Service (NRCS) responded and concluded that its position is that the

amendment should be approved. The NRCS also stated that the definition

of ``incidental boundary revision'' is somewhat arbitrary, and that a

more definable limit between a boundary revision that is incidental and

the need to seek a new or revised permit may be needed. The Federal

regulations at 30 CFR 774.13(d) provide that any extensions to the area

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

made by application for a new permit.

The Federal regulations do not define the term ``incidental

boundary revision.'' Therefore, it is each State's obligation to

determine when a boundary revision is significant and when it is

incidental.

4 VAC 25-130-774.13(b)(2) require the DMME to establish guidelines

for identifying the scale or extent of permit revisions that would

require an application for a new permit. By letter dated August 14,

1986, Virginia submitted a listing of the circumstances under which a

revision would be considered significant (and which are subjected to

the entire permit information, notice, and participation requirements)

and those under which it would be considered minor. We reviewed and

then approved Virginia's listing on November 25, 1986 (51 FR 42548).

The current submittal is intended to further clarify the 1986 listing.

The U.S. Fish and Wildlife Service (USFWS) responded to the current

submittal and stated that to minimize impacts to listed species or

habitat, whenever a revision is determined to be an IBR, an assessment

should be completed to identify any threats to protected species. These

findings should then be presented to the USFWS for final determination

to insure such action will not adversely affect Federally listed

species or designated critical habitat.

We asked the DMME to respond to the USFWS comments. DMME stated

that Virginia makes the requested assessment and findings. These

assessments and findings are made prior to the issuance of the initial

permit (4 VAC 25-130-773.15(c)(10) and 25-130-780.16). These findings

are then reviewed halfway through the permit term (4 VAC 25-130-

774.11), during the quarterly on-site inspections (4 VAC 25-130-840.11)

and if there is any permit renewal (4 VAC 25-130-773.15(c)(10).

Additionally, certain permit revisions including permit boundary

revisions may require notice and participation by governmental

entities. DMME stated that permit revisions are divided into four

classifications: (1) Significant revisions which are subjected to the

entire permit information, notice, and participation requirements; (2)

minor revisions which by definition do not affect the conditions or

have impacts that were not considered or addressed in the initial

assessment and findings [minor revisions must still contain sufficient

information to establish their inconsequential nature]; (3) incidental

boundary revisions and (4) significant boundary revisions. Only those

boundary revisions that qualify as an IBR pursuant to the 1998

guidelines and qualify as a minor revision pursuant to the 1986

guidelines will be exempted from the notice and participation

standards. Thus we agree that Virginia's existing requirements satisfy

USFWS' request.

Nonetheless, we asked the USFWS to comment on the DMME response.

The USFWS stated that the terms, conditions and findings for individual

Virginia program permits may fall short of providing adequate

protection to all Federally listed species. As an example, the USFWS

stated that it has noticed during permit reviews that the ecological

information provided in permit applications is altogether inadequate to

substantiate risk to threatened and endangered resources. This

uncertainty, the USFWS stated, hinders reviewers, such as the USFWS or

the DMLR, in their obligation to develop appropriate terms and

conditions to prevent resource injury. The USFWS recommended the

following changes to alleviate the uncertainty it sees in the

permitting process.

First, the USFWS recommended that standardized biological reporting

and

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monitoring guidelines should be developed, approved and implemented for

all permit applications. The USFWS stated that it has encouraged the

State to develop fish and wildlife reporting and monitoring guidelines

and has offered to assist in this endeavor. It appears from its

comments above, that the USFWS is more concerned with the general level

of actual reporting and monitoring of biological information that is

provided in all Virginia permit applications, than it is with the

written guidelines established for IBR's. This amendment only concerns

guidelines for IBR's, thus, USFWS' recommendation is beyond the scope

of this amendment. Also, our oversight of the Virginia program has not

identified such a problem. However, we will look into USFWS'

allegations. We encourage the USFWS and the DMME to work together to

address the USFWS concerns.

Second, the USFWS recommended that a numeric (acreage) condition be

set that would define the extent and scale of IBR's. This would prevent

areas of several hundred acres from being included as an IBR or

considered a minor revision of an inconsequential nature and excluded

from any agency review process. As we discussed above in the finding,

we believe that the State has adequately shown that the proposed

amendment is consistent with and no less effective than the Federal

regulations. The Federal regulations do not define the term

``incidental'' nor does OSM's only directive on IBR's. See,

``Incidental Boundary Revisions'' (REG-19). Therefore, the Virginia

program is not less effective than the Federal regulations because it

does not contain an acreage standard. However, we do not discourage the

development of such a standard.

It is our opinion that the proposed amendment does not lessen the

effectiveness of the Virginia program. It is also our opinion that our

approval of this amendment is not likely to jeopardize the continued

existence of any Federally listed, threatened or endangered species or

result in the destruction or adverse modification of designated

critical habitat. Consequently, we are approving the proposed

amendment.

Public Comments

We solicited public comments on the amendment. The Virginia

Department of Historic Resources responded and stated that the

amendment will not affect historic properties and it has no objection

to the amendment.

Environmental Protection Agency (EPA)

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

written concurrence of the EPA with respect to any provisions of the

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.).

None of the revisions Virginia proposed pertain to air or water

quality standards. However, OSM requested EPA's comments on the

proposed amendment. EPA did not provide any comments.

V. Director's Decision

Based on the above findings, we approve the amendment submitted by

Virginia on November 17, 1998, that clarifies the informational and

procedural requirements for permit revisions that propose to change an

existing permit boundary.

To implement this decision, we are amending the Federal regulations

at 30 CFR Part 946 which codifies decisions concerning the Virginia

program. We are making this final rule effective immediately to

expedite the State program amendment process, and to encourage Virginia

to bring its program 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 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: November 29, 1999.

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:

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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.

* * * * *

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Original amendment submission Date of final

date publication Citation/description

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* * * *

* * *

November 17, 1998............. December 13, 1999 Policy clarification

for implementing 4

VAC 25-130-

774.13(d).

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[FR Doc. 99-32210 Filed 12-10-99; 8:45 am]

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