Virginia Regulatory Program

DEPARTMENT OF THE INTERIOR

30 CFR Part 946

[VA-106-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 consists of regulatory changes to

implement the standards of the Federal Energy Policy Act of 1992, and

the Code of Virginia as amended in 1993. The amendment is intended to

revise the State program to be consistent with the Federal regulations

as amended on March 31, 1995 (60 FR 16772).

DATES: Written comments must be received by 4:00 p.m., on July 11,

1996. If requested, a public hearing on the proposed amendment will be

held on July 8, 1996. Requests to speak at the hearing must be received

by 4:00 p.m., on June 26, 1996.

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

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

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

ve 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. 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 May 21, 1996 (Administrative Record No. VA-882),

Virginia submitted amendments to the Virginia program concerning

subsidence damage. The amendments are intended to make the Virginia

program consistent with the Federal regulations as amended on March 31,

1995 (60 FR 16722). Virginia stated that the proposed amendments

implement the standards of the Federal Energy Policy Act of 1992, and

sections 45.1-243 and 45.1-258 of the Code of Virginia.

Virginia also noted that the State has adopted a revised system for

numbering the Virginia regulations. For the Virginia program, the

prefix ``480-03-19'' has been replaced with ``4 VAC 25-130-.'' The part

of the existing Virginia numbering system that corresponds to the

Federal number remains the same

ral Energy Policy Act of 1992, and

sections 45.1-243 and 45.1-258 of the Code of Virginia.

Virginia also noted that the State has adopted a revised system for

numbering the Virginia regulations. For the Virginia program, the

prefix ``480-03-19'' has been replaced with ``4 VAC 25-130-.'' The part

of the existing Virginia numbering system that corresponds to the

Federal number remains the same. For example, old ``480-03-19.700.5''

has been ``4 VAC 25-130-700.5.'' The Virginia Division of Mines,

Minerals and Energy (DMME) will be reprinting the Virginia program

regulations to incorporate the new prefix, both in the numbering of the

regulations and in references contained in the regulations. However,

the DMME is continuing to use the ``480-03-19.'' prefix pending the

reprint.

The proposed amendments are as follows:

1. Sec. 480-03-19.700.5 Definitions

(a) ``Drinking, domestic or residential water supply'' has been

added to mean water received from a well or spring and any appurtenant

delivery system that provides water for direct human consumption or

household use. Wells and springs that serve only agricultural,

commercial or industrial enterprises are not included except to the

extent the water supply is for direct human consumption or human

sanitation, or domestic use.

(b) ``Material damage, in the context of Secs. 480-03-19.784.20 and

480-03-19.817.121'' of this chapter has been added to mean:

(a) Any functional impairment of surface lands, features,

structures or facilities;

(b) Any physical change that has a significant adverse impact on

the affected land's capability to support any current or reasonably

foreseeable uses or causes significant loss in production or income; or

(c) Any significant change in the condition, appearance or utility

of any structure or facility from its presubsidence condition.

rment of surface lands, features,

structures or facilities;

(b) Any physical change that has a significant adverse impact on

the affected land's capability to support any current or reasonably

foreseeable uses or causes significant loss in production or income; or

(c) Any significant change in the condition, appearance or utility

of any structure or facility from its presubsidence condition.

(c) ``Non-commercial building'' has been added to mean any

building, other than an occupied residential dwelling, that, at the

time the subsidence occurs, is used on a regular or temporary basis as

a public building or community or institutional building as those terms

are defined in Sec. 480-03-19.700.5 of this chapter. Any building used

only for commercial agricultural, industrial, retail or other

commercial enterprises is excluded.

(d) ``Occupied residential dwelling and structures related

thereto'' has been added to mean, for purposes of Secs. 480-03-

19.784.20 and 480-03-19.817.121, any building or other structures that,

at the time the subsidence occurs, is used either temporally,

occasionally, seasonally, or permanently for human habitation. This

term also includes any building, structure or facility installed on,

above or below, or a combination thereof, the land surface if that

building, structure or facility is adjunct to or used in connection

with an occupied dwelling. Examples of such structures include, but are

not limited to, garages; storage sheds and barns; greenhouses and

related buildings, utilities and cables, fences and other enclosures;

retaining walls; paved or improved patios, walks and driveways; septic

treatment facilities; and lot drainage and lawn and garden irrigation

systems. Any structure used only for commercial agricultural,

industrial, retail or other commercial purposes is excluded.

contamination, or diminution, and if the

supply is not needed to achieve the post mining land use, replacement

requirements may be satisfied by demonstrating that a suitable

alternative water source is available and could feasibly be developed.

If the latter approach is selected, written concurrence must be

obtained from the water supply owner.

2. Sec. 480-03-19.784.14 Hydrologic Information

Subsection (e) has been amended by adding new subsection (e)(3)(iv)

to provide that the probable hydrologic consequences (PHC)

determination shall contain findings on: ``Whether the underground

mining activities conducted after October 24, 1992 may result in

contamination, diminution or interruption of a well or spring in

existence at the time the permit application is submitted and used for

domestic, drinking, or residential purposes within the permit or

adjacent areas.''

3. Sec. 480-03-19.784.10 Subsidence Control Plan

The existing language of this provision is deleted and replace by

new language. New subsection (a) provides for a pre-subsidence survey

that includes a map to identify structures, renewable resource lands

and drinking, domestic and residential water supplies that subsidence

may affect; an accompanying narrative; and a pre-subsidence survey of

all non-commercial buildings or occupied residential dwellings and

structures related thereto, that may be damaged by subsidence, and a

survey of the quantity and quality of all drinking, domestic, and

residential water supplies within the permit and adjacent area that

could be contaminated, diminished, or interrupted by subsidence.

Subsection (b) provides for a subsidence control plan

ey of

all non-commercial buildings or occupied residential dwellings and

structures related thereto, that may be damaged by subsidence, and a

survey of the quantity and quality of all drinking, domestic, and

residential water supplies within the permit and adjacent area that

could be contaminated, diminished, or interrupted by subsidence.

Subsection (b) provides for a subsidence control plan. The

subsidence control plan shall contain a description of the mining

method; a map of underground workings showing areas of planned

subsidence, and areas where measures to minimize subsidence and

subsidence related damage; a description of the overlying rock strata

that affect the likelihood or extent of subsidence and subsidence

related damage; a description of monitoring if needed; a description of

subsidence control measures, except for areas where planned subsidence

is projected to be used; a description of the anticipated effects of

planned subsidence, if any; a description of methods to be employed to

minimize the effects of planned subsidence, or the written consent of

the owner that such measures not be taken; a description of the

measures to be taken to replace adversely affected protected water

supplies or to mitigate or remedy any subsidence related material

damage to the land and protected structures; and other information as

specified by the Division of Mined Land Reclamation (DMLR).

4. Sec. 480-03-19.817.41 Hydrologic Balance Protection

n consent of

the owner that such measures not be taken; a description of the

measures to be taken to replace adversely affected protected water

supplies or to mitigate or remedy any subsidence related material

damage to the land and protected structures; and other information as

specified by the Division of Mined Land Reclamation (DMLR).

4. Sec. 480-03-19.817.41 Hydrologic Balance Protection

New subsection (j) is added to provide that the permittee must

promptly replace any drinking, domestic or residential water supply

that is contaminated, diminished or interrupted by underground mining

activities conducted after October 24, 1992, if the affected well or

spring was in existence before the date the DMLR received the permit

application for the activities causing the loss, contamination or

interruption. The baseline hydrologic information required in Sec. 480-

03-19.784.14 and the geologic information concerning baseline

hydrologic conditions required in Sec. 480-03-784.22 will be used to

determine the impact of mining activities upon the water supply.

5. Sec. 480-03-19.817.121 Subsidence Control

Subsection (a) concerning measures to prevent or minimize damage is

amended by adding new language to provide that planned subsidence must

include measures to minimize material damage to protected structures,

except if the permittee has written consent of the structure owners, or

unless the anticipated damage would constitute a threat to health or

safety, the costs of such measures exceed the anticipated costs of

repair, or the structure owners deny the permittee access to implement

the measures to minimize material damage and the permittee provides

written evidence of good faith efforts to obtain access.

Subsection (c) has been revised by deleting the existing language

and replacing new language

would constitute a threat to health or

safety, the costs of such measures exceed the anticipated costs of

repair, or the structure owners deny the permittee access to implement

the measures to minimize material damage and the permittee provides

written evidence of good faith efforts to obtain access.

Subsection (c) has been revised by deleting the existing language

and replacing new language. The new language provides for the repair of

damage to surface lands; the repair or compensation for damage to non-

commercial buildings and dwellings and related structures; repair or

compensation for damage to other structures; rebuttable presumption of

causation by subsidence; approval of site-specific angle of draw; no

presumption where access for pre-subsidence survey is denied; rebuttal

of presumption; information to be considered in determination of

causation.; and adjustment of bond amount for subsidence damage.

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

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 June 26, 1996. 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 response 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

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

scuss 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 12778 (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

255) 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.

er 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: May 31, 1996.

Allen D. Klein,

Regional Director, Appalachian Regional Coordinating Center.

[FR Doc. 96-14605 Filed 6-10-96; 8:45 am]

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