[Federal Register Volume 61, Number 113 (Tuesday, June 11, 1996)]
[Proposed Rules]
[Pages 29506-29508]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-14605]
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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.
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. 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.
(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.
(e) ``Replacement of water supply'' has been added to mean, with
respect to protected water supplies contaminated, diminished, or
interrupted by coal mining operations, provision of water supply on
both a temporary and permanent basis equivalent to premining quantity
and quality. Replacement includes provision of an
[[Page 29507]]
equivalent water delivery system and payment of operation and
maintenance costs in excess of customary and reasonable delivery costs
for premining water supplies.
(a) Upon agreement by the permittee and the water supply owner, the
obligation to pay such operation and maintenance costs may be satisfied
by a one-time payment of amount which covers the present worth of the
increased annual operation and maintenance costs for a period agreed to
by the permittee and the water supply owner.
(b) If the affected water supply was not needed for the land use in
existence at the time of loss, 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. 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
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. 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
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.
[[Page 29508]]
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.
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
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: May 31, 1996.
Allen D. Klein,
Regional Director, Appalachian Regional Coordinating Center.
[FR Doc. 96-14605 Filed 6-10-96; 8:45 am]
BILLING CODE 4310-05-M
