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: 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 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; regulation changes at section 4 VAC 25-

130-700.5 to the definitions of ``government financed construction''

and ``qualified laboratory;'' and 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.

EFFECTIVE DATE: December 27, 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

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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 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.

We announced receipt of the proposed amendment in the August 20,

1999, Federal Register (64 FR 45489), invited public comment, and

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

proposed amendment. The comment period closed on September 20, 1999. No

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

By letters dated October 1, 1999 (Administrative Record Number VA-

987), and October 28, 1999 (Administrative Record Number VA-993) the

DMME submitted amendments to 4 VAC 25-130-795.11(b). We reopened the

public comment period on November 15, 1999 (64 FR 61805), and invited

public comment on the additional amendments. The comment period closed

on November 30, 1999.

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 amendment. Any

revisions that we do not specifically discuss below concern

nonsubstantive wording changes or revised paragraph notations to

reflect organizational changes that result from this amendment.

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 507 (c) and (h) of the

federal act. Such assistance shall be provided in accordance with

regulations adopted by the Director.

We find this provision to be consistent with the Federal

regulations at 30 CFR 795.5 which provides that a State intending to

Administer a SOAP program under a grant from OSM may submit a grant

application to OSM for funding of the program under the procedures of

30 CFR part 735. Therefore, this provision can be approved.

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 when the

construction is an approved Abandoned Mine Lands (AML) reclamation

project under Title IV of SMCRA. 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 Federal definition of ``government financed construction'' at

30 CFR 707.5 was amended on February 12, 1999 (64 FR 7469). 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 SMCRA. 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. We find that the revised Virginia definition is

substantively identical to and no less effective than the counterpart

Federal definition at 30 CFR 707.5 and can be approved.

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. We find that this

revised definition is substantively identical to and no less effective

than the counterpart Federal definition at 30 CFR 795.3 and can be

approved.

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.''

In effect, the ``Division'' (the DMME) is the program administrator.

Therefore, we find that this change does not render the Virginia

program less effective than the Federal SOAP provisions at 30 CFR Part

795 and can be approved.

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

and deleting language that was also deleted from the Federal rules in

1994. In addition, at subdivisions 795.6(a)(2)(i) and (ii), the pro

rata share is increased from 5 percent to 10 percent. We find that with

these changes, the State provision is substantively identical to and no

less effective than the counterpart Federal regulation at 30 CFR

795.6(a)(2) and can be approved.

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. These deletions

are not requirements under 30 CFR 795.7(e). We find that, as amended,

subdivision 795.7(e) is substantively identical to and no less

effective than the counterpart Federal regulations at 30 CFR 795.7(e)

and can be approved.

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

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applicant ineligible, the Division shall inform the applicant in

writing that the application is denied and shall state the reasons for

denial. We find that as amended, this provision is substantively

identical to and no less effective than the counterpart Federal

regulation at 30 CFR 795.8 and can be approved.

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.

We find that with these changes, the State provision is

substantively identical to and no less effective than the counterpart

Federal provision at 30 CFR 795.9 and can be approved.

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. These

deletions are not requirements under 30 CFR 795.10.

We find that with these changes, the State provision is

substantively identical to and no less effective than the counterpart

Federal provision at 30 CFR 795.10 and can be approved.

8. 4 VAC 25-130-795.11 Assistance Funding

In subdivision 4 VAC 25-130-795.11(b), the phrase ``is authorized

to'' is deleted and replaced by the word ``shall.'' In effect, this

change requires the DMME to establish a funding formula to be used for

allocating funds to eligible small operators if the available funds are

less than those required to provide the services pursuant to 4 VAC 25-

130-795. We find that, as amended, this provision is substantively

identical to and no less effective than the Federal regulations at 30

CFR 795.11(b) and can be approved.

In addition, Virginia submitted the funding formula it intends to

use if the available funds are less than those required to provide the

services pursuant to 4 VAC 25-130-795. Virginia stated that ``[s]hould

available funds ever be insufficient to provide all requested and

appropriate assistance to eligible small operators, DMME will provide

services on a first come, first serve basis. The funds will be used in

order of the application dates for the requested assistance.''

The State's funding formula is ``an equitable distribution of

Federal funds if such funds are insufficient to provide services for

all eligible operators.'' 48 FR 2261, 2271 (January 18, 1983). Thus, we

find that the formula is consistent with the Federal regulations at 30

CFR 795.11(b) and can be approved.

9. 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. The

deleted language was also deleted from the Federal regulations in 1994.

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.'' These deleted subsections are not requirements under 30

CFR 795.12.

We find that with these changes, the State provision addresses all

the provisions of and is no less effective than 30 CFR 795.12 and 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

stated that the amendments are appropriate and there appears to be no

conflict with MSHA regulations.

Public Comments

We solicited public comments on the amendment. No comments were

received.

Environmental Protection Agency (EPA)

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

written

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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 amendments that Virginia proposed pertain to air or

water quality standards. Therefore, EPA's concurrence with the proposed

amendment is not necessary.

Pursuant to 732.17(h)(11)(I), we solicited comments on the proposed

amendment from EPA. The EPA did not provide any comments.

V. Director's Decision

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

Virginia on August 2, 1999, and amended on October 1 and October 28,

1999.

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: December 15, 1999.

H. Vann Weaver,

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 946.15 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 Date of final publication Citation/description

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* * * * * *

*

August 2, 1999.......................... December 27, 1999.......... Statute: 45.1-235 C of the Code of

Virginia. Regulations: 4 VAC 25-130-

700.5; 795.1; 795.6(a)(2); 795.7(e)(2)

[deleted], and (e)(5) [deleted];

795.8(a) and (b); 795.9(a), (b)(1)

through (b)(6); 795.10(a)(5), (b), (c)

[deleted] and (d) [deleted]; 795.11(b);

795.12(a), (a)(2), (a)(3), (b)

[deleted], and (c) [deleted].

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[FR Doc. 99-33464 Filed 12-23-99; 8:45 am]

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