[Federal Register Volume 63, Number 121 (Wednesday, June 24, 1998)]
[Rules and Regulations]
[Pages 34280-34287]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-16812]
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 946
[VA-112-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 revises numerous provisions of the Virginia program
concerning surface coal mining and reclamation operations. The
amendment is intended to revise the State program to be consistent with
the Federal regulations.
EFFECTIVE DATE: June 24, 1998.
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. 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 are identified at 30 CFR 946.11, 946.12, 946.13,
946.15, and 946.16.
II. Submission of the Amendment
By letter dated December 1, 1997 (Administrative Record No. VA-
938), the Virginia Department of Mines, Minerals and Energy (DMME)
submitted numerous amendments to the Virginia program. The DMME stated
that the purpose of the amendments is to address issues identified by
OSM in a letter dated May 30, 1997, pursuant to 30 CFR 732.17(d)
(Administrative Record Number VA-955). The DMME also stated that the
proposed amendments are intended to be materially consistent with the
corresponding Federal standards.
The proposed amendment was published in the December 23, 1997,
Federal Register (62 FR 67016), and in the same notice, OSM opened the
public comment period and provided opportunity for a public hearing on
the adequacy of the proposed amendment. The comment period closed on
January 22, 1998. No one requested to speak at a public hearing, so no
hearing was held.
By electronic mail dated March 6, 1998 (Administrative Record
Number VA-953), OSM provided the State with comments on the proposed
amendments. The DMME responded to those comments by electronic mail
dated March 20, 1998 (Administrative Record Number VA-954).
III. Director's Findings
Set forth below, pursuant to SMCRA and the Federal regulations at
30 CFR 732.15 and 732.17, are the Director's findings concerning the
proposed amendment to the Virginia program. Only the substantive
changes will be discussed below.
1. 4 VAC 25-130-700.5 Definition of ``Other Treatment Facilities''
This definition has been amended to add ``neutralization'' as an
example of chemical treatments, and to add ``precipitators'' as an
example of mechanical structures. In addition, a new subsection (b) has
been added to provide that `` other treatment facilities'' will have to
comply with all applicable State and Federal water quality laws and
regulations. The Director finds that with the proposed changes, the
Virginia program definition of ``other treatment facilities'' is
substantively identical to and therefore no less effective than the
counterpart Federal definition at 30 CFR 701.5.
4 VAC 25-130-700.5 Definition of ``Previously mined area.'' This
definition has been revised to state that `` previously mined area''
means land affected by surface coal mining operations prior to August
3, 1997, that has not been reclaimed to the standards of this Chapter.
The Director finds that the proposed definition is substantively
identical to and therefore no less effective than the counterpart
Federal definition at 30 CFR 701.5.
2. 4 VAC 25-130-779.22 Land Use Information
This provision has been deleted. The counterpart Federal regulation
at 30 CFR 779.22 was deleted on May 27, 1994 (59 FR 27932). In that
final rule notice, OSM consolidated the land use information
requirements of sections 30 CFR 779.22 and 30 CFR 780.23 into final 30
CFR 780.23. As discussed below in Finding 4, 4 VAC 25-130-780.23
concerning reclamation plans; land use information is being amended by
the State, and is substantively identical to and therefore is less
effective than the counterpart Federal regulations at 30
[[Page 34281]]
CFR 780.23. Therefore, the Director finds that the proposed deletion
does not render the Virginia program less effective and can be
approved.
3. 4 VAC 25-130-779.25 Cross Sections, Maps, and Plans
This provision is amended by deleting subsection (k) concerning
slope measurements, and by revising the subsection's numbering system.
The counterpart Federal provision at 30 CFR 779.25(a)(11) concerning
slope measurements was deleted by May 27, 1994 (59 FR 27932). In that
final rule notice, OSM explained that the provisions was deleted
because it was redundant and provided no additional information beyond
that already available to the regulatory authority under 30 CFR
777.14(a) and OSM's technical information processing system (TIPS). The
Director notes that the Virginia program contains an approved
counterpart to 30 CFR 777.14(a). Therefore, the Director finds that as
amended, the deletion does not render the Virginia program less
effective than the Federal regulations.
4. 4 VAC 25-130-780.23 Reclamation Plan; Land Use Information
The existing language of this subsection has been deleted and
replaced in its entirety by new language. The Director finds that, as
revised, the provision is substantively identical to and therefore no
less effective than the counterpart Federal regulations at 30 CFR
780.23.
5. 4 VAC 25-130-780.25 Reclamation Plan: Siltation Structures,
Impoundments, Banks, Dams, and Embankments
This provision is amended by adding new subsection 780.25(a)(2)
concerning impoundments that meet Class B and C criteria for dams as
specified in the U.S. Department of Agriculture, Soil Conservation
Service Technical Release No. 60, ``Earth Dams and Reservoirs.'' The
Director finds that new subsection 780.25(a)(2) is substantively
identical to and therefore no less effective than the Federal
regulations at 30 CFR 780.25(a)(2).
The provision is also amended in various locations to add
references to the new language at subsection 780.25(a)(2), and to
revise the provision to be consistent with the counterpart Federal
regulations. The Director finds the revised language at 780.25(a),
(a)(3), (b) and (f) to be substantively identical to and therefore no
less effective than the counterpart Federal regulations with one
exception. The revised language at subsection 780.25(c)(3) does not
specify that any engineering design standards that may be established
by the State must be approved by the Director through the State program
amendment approval process.
However, Virginia already has approved engineering design standards
at 4 VAC 25-130-816/817.49(a)(4)(ii). In addition, the DMME has
informed OSM that any other design standard that DMME may accept in
lieu of the engineering standard will first be approved through the
state program amendment process (Administrative Record Number VA-954).
Therefore, to the extent that any design standard that DMME may accept
in lieu of the engineering standard will first be approved through the
state program amendment process, the Director finds the proposed
provision to be no less effective than the counterpart Federal
regulations at 30 CFR 780.25.
6. 4 VAC 25-130-780.35 Disposal of Excess Spoil
Subsection (b) is amended by adding the phrase ``except for the
disposal of excess spoil on preexisting benches'' to the existing
language. As amended, the requirements of subsection 780.35(b) do not
apply to the disposal of excess spoil on preexisting benches. The
Director finds that the amended language is substantively identical to
and therefore no less effective than the counterpart language at 30 CFR
780.35(b).
7. 4 VAC 25-130-783.25 Cross Sections, Maps and Plans (Underground)
This provision is amended by deleting subsection (k) concerning
slope measurements, and by revising the subsection's numbering system.
The counterpart Federal provision at 30 CFR 783.25(a)(11) concerning
slope measurements was deleted by May 27, 1994 (59 FR 27932). In that
final rule notice, OSM explained that the provision was deleted because
it was redundant and provided no additional information beyond that
already available to the regulatory authority under 30 CFR 777.14(a)
and OSM's technical information processing system (TIPS). The Director
notes that the Virginia program contains an approved counterpart to 30
CFR 777.14(a). Therefore, the Director finds that as amended, the
deletion does not render the Virginia program less effective the than
the federal regulations. As amended, the provision is substantively
identical to and therefore no less effective than the counterpart
Federal regulations at the 30 CFR 783.25.
8. 4 VAC 25-130-784.15 Reclamation Plan: Land Use Information
(Underground)
The existing language of this section has been deleted and replaced
in its entirety by new language. The Director finds that as revised,
the provision is substantively identical to and therefore no less
effective than the counterpart Federal regulations at 30 CFR 784.15.
9. 4 VAC 25-130-784.16 Reclamation Plan: Siltation Structure,
Impoundments, Banks, Dams, and Embankments (Underground)
Subsections (a), (b), (c), and (f) are amended. Subsection (a) is
amended by adding the requirements for detailed designed plans, and
deleting and replacing the term sedimentation pond with the term
siltation structure. The Director finds these changes render the
Virginia language substantively identical to and therefore no less
effective than the counterpart Federal provision at 30 CFR 784.16(a).
Subsection (a)(2) is amended by adding language concerning
impoundments meeting the Class B or C criteria in the U.S. Department
of Agriculture, Soil Conservation Service Technical Release No. 60
(210-VI-TR60, Oct. 1985), ``Earth Dams and Reservoirs,'' Technical
Release No. 60 (TR-60). The Director finds the added language to be
substantively identical to and therefore no less effective than the
counterpart Federal requirements at 30 CFR 784.16(a)(2).
Subsection (a)(3) is amended to properly reference the amended
subsection (a)(2). Subsection (b) has been amended by deleting
language. The Director finds that as amended, the State provisions are
substantively identical to and therefore no less effective than the
counterpart Federal regulations at 30 CFR 784.16(a)(3) and (b).
New subsection (c)(3) is added to provide that the State may
establish engineering design standards to ensure stability comparable
to a 1.3 minimum static safety factor in lieu of engineering tests to
establish compliance with the minimum static safety factor of 1.3
specified at subsection 817.49(a)(4)(ii). The director finds this new
provision to be substantively identical to and therefore no less
effective than the counterpart Federal provision at 30 CFR 784.16(c)(3)
with one exception. The Federal provision also provides that the
authorization for States to establish engineering design standards in
lieu of engineering tests to establish compliance with the minimum
static safety factor of 1.3 must be
[[Page 34282]]
accomplished within the state program amendment approval process.
However, Virginia already has approved engineering design standards
at 4 VAC 25-130-816/817.49(a)(4)(ii). In addition, the DMME has
informed OSM that any other design standard that DMME may accept in
lieu of the engineering standard will first be approved through the
state program amendment process (Administrative Record Number VA-954).
Therefore, to the extent that any other design standard that DMME may
accept in lieu of the engineering standard will first be approved
through the state program amendment process, the Director finds the
proposed provision to be no less effective than to the counterpart
Federal regulations at 30 CFR 784.16(c)(3).
Subsection 784.16(f) has been amended by deleting reference to
structures 20 feet or higher or that impound more than 20 acre feet. In
its place, language has been added concerning structures that meet
Class B or C criteria for dams in TR-60 or meets the size or criteria
of 30 CFR 77.216(a). The Director finds the amended language to be
substantively identical to and therefore no less effective than the
counterpart Federal regulations at 30 CFR 784.16(f).
10. 4 VAC 25-130-784.23 Operation Plan; Maps and Plans
Subsection (c) is amended by adding a reference to subsection
784.23(b)(4) in addition to the references to (b)(5), (6), (10), and
(11). The Director finds the added language to be substantively
identical to and therefore no less effective than the Federal
counterpart provision at 30 CFR 784.23(c).
11. 4 VAC 25-130-800.40 Requirements for Release of Performance Bond
New subsection (a)(3) is added to provide that the application for
bond release shall include a notarized statement which certifies that
all applicable reclamation activities have been accomplished in
accordance with the requirements of the Act, the regulatory program,
and the approved reclamation plan. Such certification shall be
submitted for each application or phase of bond release. The Director
finds the added language to be identical to and therefore no less
effective than the counterpart Federal language at 30 CFR 800.40(a)(3).
12. 4 VAC 25-130-816/817.46 Hydrologic Balance; Siltation Structures
Subsections (a)(2) is amended by deleting the word ``permittee''
and replacing it with the word ``operator.'' The Director finds that as
amended, subsections (a)(2) are identical to and therefore no less
effective than the counterpart Federal regulations at 30 CFR 816/
817.46(a)(2).
Subsections (b)(3) have been amended by deleting the last sentence
that provided that the certification of completion of the siltation
structures shall be provided to the division within 30 days after
completion of construction of the structure. The Director finds that as
amended, subsections (b)(3) are substantively identical to and
therefore no less effective than the Federal regulations at 30 CFR 816/
817.46(a)(3).
Subsection (b)(5) have been amended by deleting the words ``growing
seasons'' and adding in their place the word ``years.'' The Director
finds that as amended, subsections (b)(5) are identical to and
therefore no less effective than the Federal regulations at 30 CFR 816/
817.46(b)(5).
Subsections (c)(2) have been amended to delete most of the existing
language concerning spillways. As amended, subsections (c)(2) provide
that a sedimentation pond shall include either a combination of
principal and emergency spillways or a single spillway configured as
specified in 4 VAC 25-130-816.49(a)(9).
OSM revised the performance standards for impoundments on October
20, 1994 (59 FR 53022). For clarity, OSM moved the spillway design
requirements of 30 CFR 816./817.46(c)(2)(i) through (iii) to sections
816/817.49(a)(9) and revised 816/817.46(c)(2) to reference sections
816/817.49(a)(9). The Director finds that as amended, Virginia
subsection (c)(2) is substantively identical to and therefore no less
effective than the revised Federal regulations at 30 CFR 816/
817.46(c)(2) with one exception. 4 VAC 25-130-817.46(c)(2) concerning
spillways contains an erroneous sentence fragment referencing Paragraph
(c)(2)(i), a paragraph that does not exist.
In response to OSM's comment about the sentence fragment, the DMME
stated that it will delete those additional words (Administrative
Record Number VA-954). Therefore, to the extent that the DMME will
delete the erroneous sentence fragment that references Paragraph
(c)(2)(i), the Director finds the provisions to be no less effective
than the counterpart Federal regulations at 30 CFR 816/817.46(c)(2).
13. 4 VAC 25-130-816/817.49 Impoundments
New subsections (a)(1) provide that impoundments meeting the Class
B or C criteria in the U.S. Department of Agriculture, Soil
Conservation Service Technical Release No. 60 (210-VI-TR60, Oct. 1985),
``Earth Dams and Reservoirs,'' Technical Release No. 60 (TR-60) shall
comply with ``Minimum Emergency Spillway Hydrologic Criteria'' table in
TR-60 and the requirements of this section. The Director finds the
added language to be substantively identical and therefore no less
effective than tot he counterpart Federal requirements at 30 CFR 816/
817.49(a)(1).
Subsections (a)(4)(i) concerning stability have been amended to
delete the words ``or located where failure would be expected to cause
loss of life or serious property damage.'' In addition, the word
``state'' has been added between the words ``steady'' and `seepage.''
OSM amended the counterpart Federal regulations on October 20, 1994 (59
FR 53022). In that amendment, OSM removed the phrase ``or located where
failure would be expected to cause loss of life or serious property
damage'' because it is redundant with the cited TR-60 reference. The
Director finds that as amended, subsections (a)(4)(i) are identical to
and therefore no less effective than the counterpart Federal
regulations at 30 CFR 816/817.49(a)(4)(i).
Subsections (a)(4)(ii) are amended by deleting the words ``meeting
the size or other criteria of 30 CFR 772.216(a)'' and adding in their
place the words ``included in Paragraph (a)(4)(i). In addition, and in
the same sentence, the words ``and located where failure would not be
expected to cause loss of life or serious property damage'' have been
deleted. OSM made similar changes to its counterpart regulations at 30
CFR 816/817.49(a)(4)(ii) to help clarify which safety factors are
related to specific types of impoundment classification. The Director
finds that amended language in subsections (a)(4)(ii) to be identical
to and therefore no less effective than the amended language in the
counterpart Federal regulations at Sec. 816/817.49(a)(4)(ii).
Subsections (a)(5) are amended by adding a new last sentence that
provides that ``[i]mpoundments meeting the Class B or C criteria for
dams in TR-60 shall comply with the freeboard hydrograph criteria in
the ``Minimum Emergency Spillway Hydrologic Criteria'' table in TR-60.
This change renders subsections (a)(5) compatible with TR-60 standards
added to subsections (a)(1). The Director finds the amended language in
subsections (a)(5) to be substantively identical to and therefore no
less effective than the counterpart Federal regulations at 30 CFR 816/
817.49(a)(5).
[[Page 34283]]
Subsections (a)(6)(i) are amended by adding a reference to Class B
or C criteria for dams in TR-60. The Director finds the amended
language in subsections (a)(6) to be substantively identical to and
therefore no less effective than the counterpart Federal language at 30
CFR 816/817.49(a)(6).
Subsections (a)(9)(ii)(A) have been amended to provide that for
impoundments meeting the Class B or C criteria for dams in TR-60, the
impoundments must meet the emergency spillway hydrograph criteria in
the ``Minimum Emergency Spillway Hydrologic Criteria'' table in TR-60
or greater as specified by the Division. The Director finds the amended
language in subsections (a)(9)(ii)(A) to be substantively identical to
and therefore no less effective than the counterpart Federal language
at 30 CFR 816/817.49(a)(9)(ii)(A).
Subsections (a)(9)(ii)(B) have been amended by adding the words
``or exceeding'' between the word ``meeting'' and the words ``the
size.'' The Director finds the amended language to be substantively
identical to and therefore no less effective than the counterpart
Federal language at 30 CFR 816/817.49(a)(9)(ii)(B).
Subsections (a)(9)(ii)(C) have been amended by deleting the words
``meeting the size or other criteria of 30 CFR 77.216(a)'' and adding
in their place the words ``included in Paragraph (a)(9)(ii) (A) and
(B). The Director finds the amendment to subsections (a)(9)(ii)(C) to
be substantively identical to and therefore no less effective than the
Federal regulations at 30 CFR 816/817.49(a)(9)(ii)(C).
Subsections (a)(11) concerning examinations has been amended to
provide that impoundments meeting the Class B or C criteria for dams in
TR-60, or the size or other criteria of 30 CFR 77.216(a) must be
examined in accordance with Sec. 77.216(a). In addition, subsections
(a)(11) have been amended to provide that impoundments not meeting such
criteria shall be examined at least quarterly. Also, subsections
(a)(11) have been amended to provide that a qualified person designated
by the operator shall examine impoundments for appearance of structural
weakness and other hazardous conditions. Finally, the last sentence
concerning a written record has been deleted. The Director finds that
as amended, subsections (a)(11) are substantively identical to and
therefore no less effective than the counterpart Federal regulations at
30 CFR 816/817.49(a)(12).
Subsections (c)(2)(i) have been amended by deleting the words
``[i]n the case of an impoundment meeting'' and adding in their place
the words [i]mpoundments meeting the SCS Class B or C criteria for dams
in TR-060 or.'' In addition, the words ``it is'' are deleted and
replaced by the words ``shall be.'' The Director finds that as amended,
subsections (c)(2)(i) are substantively identical to and therefore no
less effective than the counterpart Federal regulations at 30 CFR 816/
817.49(c)(2)(i).
Subsections (c)(2)(ii) have been amended to provide that
impoundments not included in Paragraphs (c)(2)(i) of these sections
shall be designed to control the precipitation of a 100-year 6-hour
event, or greater event as specified by the division. The Director
finds that as amended, subsections (c)(2)(ii) are substantively
identical to and therefore no less effective than the counterpart
Federal regulations at 30 CFR 816/817.49(c)(2)(ii).
14. 4 VAC 25-130-816/817.74 Disposal of Excess Spoil; Preexisting
Benches
Subsections (a) through (g) have been amended to mirror the
counterpart Federal regulations at 30 CFR 816/817.74. On December 17,
1991 (56 FR 65612) OSM revised the Federal regulations at 30 CFR 816/
817.74 concerning the disposal of excess spoil on preexisting benches
to conform those requirements with the backfilling and grading
requirements of Secs. 816/817.102. The Director finds that, as amended,
4 VAC 25-130-816/817.74 are substantively identical to and therefore no
less effective than the Federal regulations at 30 CFR 816/817.74.
15. 4 VAC 25-130-816/817.81 Coal Mine Waste; General Requirements
Subsections (a) have been amended to provide that all coal mine
waste disposed of in an area other the mine workings or excavations
shall be placed in new or existing disposal areas within a permit area,
which are approved by the division for this purpose. Coal mine waste
shall be hauled or conveyed and placed for final placement in a
controlled manner to comply with the identified provisions. The Federal
Regulations at 30 CFR 816/817.81(a) were revised on December 17, 1991
(56 FR 65612) to provide that coal mine waste be ``hauled or conveyed''
instead of just requiring that it be ``placed.'' Additional language
was also added to allow the disposal of coal mine waste in mine
workings or excavations and to specify that the waste be placed in a
controlled manner to promote fill stability and inhibit combustibility.
The Director finds that as amended, 4 VAC 25-130-816/817.81(a) is
substantively identical to and therefore no less effective than the
counterpart Federal regulations at 30 CFR 816/817.81(a). In addition,
subsections (c)(3) have been deleted. This deleted subsection provided
for specific numbers for thickness and compaction. There was no Federal
counterpart to subsection (c)(3) and the deletion does not render the
Virginia program less effective.
16. 4 VAC 25-130-816/817.89 Disposal of Noncoal Mine Wastes
These sections have been amended by deleting subsections (d). On
December 17, 1991 (56 FR 65612) the Federal regulations at 30 CFR 816/
817.89 were revised by deleting paragraphs (d), which required that any
noncoal waste defined as hazardous under section 3001 of the Resource
Conservation and Recovery Act (RCRA) be handled in accordance with
subtitle C and any implementing regulations. This provision could have
been interpreted as requiring OSM and State regulatory authorities to
assume permitting, inspection and enforcement responsibilities that
Congress assigned to the Environmental Protection Agency (EPA).
Therefore, the Director finds that the deletion of subsections 4 VAC
25-130-816/817.89(d) does not render the Virginia program less
effective than the counterpart Federal regulations at 30 CFR 816/
817.89.
17. 4 VAC 25-130-816.104 Backfilling and Grading; Thin Overburden
The existing introductory paragraph is deleted and replaced by new
language. On December 17, 1991 (56 FR 65612) OSM amended the Federal
regulations at 30 CFR 816.104 concerning backfilling and grading, thin
overburden. The Director finds that as amended, 4 VAC 25-130-816.104 is
substantively identical to and therefore no less effective than the
counterpart Federal regulations at 30 CFR 816.104.
18. 4 VAC 25-130-816.105 Backfilling and Grading; Thick Overburden
The existing introductory paragraph is deleted and replaced by new
language. On December 17, 1991 (56 FR 65612) OSM amended the Federal
regulations at 30 CFR 816.105 concerning backfilling and grading, thick
overburden. The Director finds that as amended, 4 VAC 25-130-816.105 is
substantively identical to and therefore no less effective that the
counterpart Federal regulations at 30 CFR 816/105.
[[Page 34284]]
19. 4 VAC 25-130-823.11 Applicability
Subsection (a) is amended by deleting the existing language and
adding new language in its place. As amended, subsection (a) provides
that the requirements of this Part shall not apply to coal preparation
plants, support facilities, and roads of surface and underground mines
that are actively used over extended periods of time and where such
uses affect a minimal amount of land. Such uses shall meet the
requirements of Part 816 for surface mining activities and of Part 817
for underground mining activities.
At the present time, the Federal regulation at 30 CFR 823.11(a) is
suspended insofar as it relates to surface, as opposed underground,
mining (February 21, 1985; 50 FR 7278). Therefore, Virginia's proposal
to adopt 30 CFR 823.11(a), as applied to surface mining, is
inconsistent with SMCRA, as interpreted by court decisions.
OSM informed DMME that this amendment copies language in the
Federal regulations that has been suspended insofar as the language
applies to surface mines. In response, the DMME stated that the
proposed changes to 4 VAC 25-130-823.11(a) are hereby withdrawn
(Administrative Record Number VA-954).
20. 4 VAC 25-130-840.11 Inspections by the Divisions
Subsection (f)(2) has been amended to provide that reclamation has
been completed to the level established in 4 VAC 25-130-800.40 Phase
II.
Subsection (g)(4) has been amended to delete the word ``or'' and
add in its place the word ``and.'' As amended, subsection (g)(4)
applies to a site that is, or was, permitted and bonded. Subsection
(g)(4) is further amended at (g)(4)(i) to delete language pertaining to
permit revocation proceedings, and to add the word ``either'' so that
the provision applies to a permit that has either expired or been
revoked. Subsection (g)(4)(ii) has been amended to delete the word
``the'' and replace that word with the words ``any available.'' As
amended, the provision applies to any available performance bond.
Subsection (h) has been amended by deleting most of the existing
language and replacing that language with new language. In addition,
new language has been added concerning selecting an alternate
inspection frequency, and concerning public notice.
The Federal regulations at 30 CFR 840.11(g) and (h) were amended on
November 28, 1994 (59 FR 60876) to change the minimum inspection
frequency for surface coal mining and reclamation operations that have
been abandoned without completion of reclamation or abatement of
violations. The change enables regulatory authorities to eliminate
ineffective inspections to redirect resources to minesites where
inspection and enforcement will achieve intended results. Before an
abandoned site can qualify for a change in inspection frequency under
this rule, the regulatory authority must make a written finding that a
site is abandoned and that the change in inspection frequency is
appropriate based on specified environmental and public health and
safety criteria.
The Director finds the amendments to 4 VAC 25-130-840.11 to be
substantively identical to and therefore no less effective than the
counterpart Federal regulations at 30 CFR 840.11 with one exception.
The amendments to subsection 4 VAC 25-130-840.11(f)(2) differ from the
counterpart Federal regulations at 30 CFR 840.11. The Federal provision
provides that an inactive surface coal mining and reclamation operation
is one for which reclamation Phase II as defined at 30 CFR 800.40 has
been completed and the liability of the permittee has been reduced by
the State regulatory authority in accordance with the State program.
The counterpart State provision, however, provides that an inactive
surface coal mining and reclamation operation is one for which
reclamation has been completed to the level established in 4 VAC 25-
130-800.40 as Phase II. That is, the Virginia provision makes reference
to completion of the reclamation that is equivalent to Phase II, rather
than Phase II bond release. In its submittal of this amendment,
Virginia stated that the change is necessary to make the rule
applicable to the operations using Virginia's approved alternate
bonding system, which does not include provision for a bond release at
the completion of Phase II type reclamation. The Federal regulations at
30 CFR 840.11 (applicable to State regulatory authorities) and 842.11
(applicable to State regulatory authorities) and 842.11 (applicable to
Federal inspections and monitoring) were amended on August 16, 1982 (57
FR 35620). Discussion of 30 CFR 840.11(f) (what is an inactive
operation under a State program) was cross-referenced to the discussion
of 30 CFR 842.11(c) (what is an inactive operation under a Federal
program). 57 FR 35621. At the discussion to 30 CFR
842.11(c)(2)(iii)(B), OSM agreed with commenters that ``the
determination of a mine's status as active or inactive should be based
solely on the completion of Reclamation Phase II.'' Accordingly, OSM
modified 30 CFR 842.11(c)(2)(iii)(B) to reflect this intention.
Therefore, Virginia defining an inactive mine as one for which
reclamation has been completed to the level established in 4 VAC 25-
130-800.40 as Phase II, is consistent with OSM's intentions. The
Director finds 4 VAC 25-130-840.11(f)(2) to be no less effective than
the Federal regulations.
21. 4 VAC 25-130-843.12 Service of Notices of Violation, Cessation
Orders, and Show Cause Orders
Subsection (a)(2) is amended by adding new language to the end of
the first sentence. The added language provides that service may also
be made by any means consistent with the Rules of the Supreme Court of
Virginia governing service of a summons and complaint. Virginia has
also added the word ``certified'' immediately before the word ``mail.''
This latter change clarifies that the reference is to certified mail.
In its submittal of this amendment, Virginia stated that the added
reference to the Rules of the Supreme Court of Virginia is necessary
since the State agency must follow State administrative procedures for
service of documents. The Federal regulation at 30 CFR 840.13(c) states
that the procedural requirements for enforcement provisions ``shall be
the same as or similar to those provided in'' 518 and 521 of SMCRA and
consistent with the applicable Federal regulations. Federal enforcement
under 30 CFR 843.14(a) allows service that is consistent with the
Federal Rules of Civil Procedure. The Federal regulations were amended
on June 20, 1991 (56 FR 28442), to allow for increased flexibility.
Virginia is also increasing its flexibility by following its
counterpart to the Federal Rules of Civil Procedure. Therefore, the
Director finds that the amended language is not inconsistent with the
Federal regulations.
22. 4 VAC 25-130-845.17 Procedures for Assessment of Civil Penalties
Section (b) is amended by adding a reference to the Rules of the
Supreme Court of Virginia governing service of a summons and complaint.
Subsection (b)(1) is amended replacing the word ``mail'' with the word
``documents.'' New subsection (b)(2) is added to provide that failure
of the Division to serve any proposed assessment within 30 days shall
not be grounds for dismissal of all or part of such assessment unless
the person against whom the proposed penalty has been
[[Page 34285]]
assessed: (i) proves actual prejudice as a result of the delay; (ii)
makes a timely objection to the day. An objection shall be timely only
if made in the normal course of administrative review.
The Director finds that the amended language is substantively
identical to and therefore no less effective than the counterpart
Federal language at 30 CFR 845.17 with one exception. The amended
language at subsection (b) concerning reference to the Rules of the
Supreme Court of Virginia governing service of a summons and complaint
differs from the Federal regulations. As previously stated, the Federal
rule at 30 CFR 840.13(c) states that the procedural requirements for
enforcement provisions ``shall be the same as or similar to those
provided in'' 518 and 521 of SMCRA and consistent with the applicable
Federal regulations. Federal enforcement under 30 CFR 845.17(b) allows
service that is consistent with the Federal Rules of Civil Procedure.
The Federal regulations were amended on June 20, 1991 (56 FR 28442), to
allow for increased flexibility. Virginia is also increasing its
flexibility by following its counterpart to the Federal Rules of Civil
Procedure. Therefore, the Director finds that the amended language is
not inconsistent with the Federal regulations.
23. 4 VAC 25-130-845.18 Procedures for Assessment Conference
Subsection (a) is amended to change the time limit for requests for
an assessment conference from 15 days to 30 days. Subsection (b)(1) is
amended to provide that the assessment conference shall be held within
60 days from the date the conference request is received or the end of
the abatement period, whichever is later. Prior to this amendment, the
conference was to be held within 60 days from the date of issuance of
the proposed assessment or the end of the abatement period, whichever
is later. New language is added to subsection (b)(1) to provide that a
failure by the Division to hold such conference within 60 days shall
not be grounds for dismissal of all or part of an assessment unless the
person against whom the proposed penalty has been assessed proves
actual prejudice as a result of the delay.
Subsection (b)(2) has been amended to delete the words ``and the
Courthouse of the County is which [the mine] is located'' and replace
that language with ``or field office located closest to [the mine].''
In effect notices of assessment conferences will be posted at the
Division's Big Stone Gap office, and the field office located closest
to the mine. Subsection (b)(3) is amended by deleting the words
``affirm, raise, lower, or vacate the penalty,'' and replace those
words with the word ``either'' and the addition of new subsections
(b)(3)(i) and (ii). The two new subsections provide that within 30 days
after the conference is held, the conference officer shall either: (i)
Settle the issue, in which case a settlement agreement shall be
prepared and signed by the Division and by the person assessed; or (ii)
affirm, raise, lower, or vacate the penalty.
New subsection (d) is added to provide that at (d)(1) if a
settlement agreement is entered into, the person assessed will be
deemed to have waived all rights to further review of the violation or
penalty in question, except as otherwise expressly provided for in the
settlement agreement. The settlement agreement shall contain a clause
to this effect. New (d)(2) provides that if full payment of the amount
specified in the settlement agreement is not received by the Division
within 30 days after the date of signing, the Division may enforce the
agreement or rescind it and proceed according to paragraph (b)(3)(ii)
within 30 days from the date of the rescission.
The Federal regulations at 30 CFR 845.18 were revised on March 8,
1991 (56 FR 10060). The revision extended by approximately 30 days the
amount of time within which OSM may complete the necessary
administrative actions to hold an assessment conference and by 15 days
the amount of time within which a person charged with a violation may
appeal an assessment conference officer's decision to the Office of
Hearings and Appeals. The director finds that as amended, 4 VAC 25-130-
845.18 is substantively identical to and consistent with the
counterpart Federal regulations at 30 CFR 845.18.
24. 4 VAC 25-130-845.19 Request for Hearing
Subsection (a) is amended by changing from 15 days to 30 days the
number of days that a person charged with a violation may contest the
proposed penalty or the fact of the violation. On March 8, 1991 (56 FR
10060) the Federal regulations at 30 CFR 845.19 were similarly amended.
The Director finds that as amended, the State provision is
substantively identical to and consistent with the counterpart Federal
regulations.
25. 4VAC 25-130-846.17 Assessment of an Individual Civil Penalty
Subsection (b)(3) is deleted and replaced by a new subsection (c).
As amended, service shall be performed on the individual to be assessed
an individual civil penalty, by certified mail, or by any alternative
means consistent with the rules of the Supreme Court of Virginia
governing service of a summons and complaint. Service shall be complete
upon tender of the notice of proposed assessment and included
information or of the certified mail and shall not be deemed incomplete
because of refusal to accept. On June 20, 1991 (56 FR 28442) the
Federal regulations at 30 CFR 846.16(c) concerning service were
amended. As amended, the Virginia provision is substantively identical
to and therefore no less effective than the counterpart Federal
provision with one exception. The Federal provision provides that
service can be accomplished by any means consistent with the rules
governing service of a summons and complaint under rule 4 of the
Federal Rules of Civil Procedure. The revised Virginia provision that
service can be accomplished by any means consistent with the Rules of
the Supreme Court of Virginia governing service of a summons and
complaint. Federal enforcement under 30 CFR 846.17(c) allows service
that is consistent with the Federal Rules of Civil Procedure. The
Federal regulations were amended on June 20, 1991 (56 FR 28442), to
allow for increased flexibility. Virginia is also increasing its
flexibility by following its counterpart to the Federal Rules of Civil
Procedure. therefore, the Director finds that the amended language is
not inconsistent with the Federal regulation.
IV. Summary and Disposition of Comments
Federal Agency Comments
Pursuant to section 503(b) of SMCRA and 30 CFR 732.17(h)(11)(I),
comments were solicited from various interested Federal agencies. The
U.S. Fish and Wildlife Service (USFWS) responded and stated that it
appears that no impacts to Federally listed or proposed species or
critical habitat will occur and, therefore, USFWS had no comments on
the proposed amendments. The U.S. Department of Agriculture, Natural
Resources Conservation Service (NRCS) responded and stated that the
proposed amendments seem to conform more closely to presently practiced
reclamation goals and standards, and better suits their intended use.
Therefore, the NRCS stated that the amendments should be accepted. The
U.S. Department of Labor, Mine Safety and Health Administration (MSHA)
responded and stated that the proposed amendment does not contain any
[[Page 34286]]
information that would be conflicting to MSHA regulations.
Public Comments
There were no public comments submitted.
Environmental Protection Agency (EPA)
Under 30 CFR 732.17(h)(11)(ii), the Director is required to obtain
the written concurrence of the Administrator of the EPA with respect to
any provisions of a 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.). The Director has determined that this amendment contains no
provisions in these categories and that EPA's concurrence is not
required.
Pursuant to 732.17(h)(11)(I), OSM solicited comments on the
proposed amendment from EPA. The EPA did not provide any comments.
V. Director's Decision
Based on the findings above, and except as noted below, the
Director is approving Virginia's amendment as submitted by Virginia on
December 1, 1997, and clarified by letter dated March 6, 1998.
4 VAC 25-130-780.25(c)(3) is approved to the extent that any other
design standard that DMME may accept in lieu of the engineering
standards will be first be approved through the state program amendment
process.
4 VAC 25-130-784.16(c)(3) is approved to the extent that any other
design standard that DMME may accept in lieu of the engineering
standard will first be approved through the state program amendment
process.
4 VAC 25-130-817.46(c)(2) is approved to the extent that the DMME
will delete the erroneous sentence fragment that references Paragraph
(c)(2)(i).
The Director notes that the amendments to 4 VAC 25-130-823.11(a)
were withdrawn by the DMME.
The Federal regulations at 30 CFR Part 946 codifying decisions
concerning the Virginia program are being amended to implement this
decision. This final rule is being made effective immediately to
expedite the State program amendment process and to encourage States to
bring their programs 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 section 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 29, 1998.
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:
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.
* * * * *
[[Page 34287]]
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Original amendment submission
date Date of final publication Citation/description
----------------------------------------------------------------------------------------------------------------
* * * * * *
December 1, 1997.............. June 24, 1998................. VA Code Sections 701.5; 779.22 [deletion],
.25(k) [deletion]; 780.23, .25(a),
(a)(2)(a)(3), (b), (c)(3), (f), 35(b);
783.25(k) [deletion]; 784.15, .16(a), (a)(2),
(a)(3), (b), (c)(3), (f), .23(c); 800.40(a)(3);
816.46(a)(2), (b)(3), (b)(5), (c)(2),
.49(a)(1), (a)(4)(i) & (ii), (5), (6), (9),
(11), (c)(2), .74(a) through (g), .81(a),
(c)(3) [deletion], .89(d) [deletion], .104,
.105; 817.46(a)(2), (b)(3), (b)(5), (c)(2)
.49(a)(1), (a)(4)(i) & (ii), (5), (6), (9),
(11), (c)(2), .74(a) through (g), .81(a),
(c)(3) [deletion], .89(d) [deletion];
840.11(f)(2) & (g)(4), (h); 843.14(a)(2);
845.17(b) through (b)(2)(ii), .18(a), (b)
through (b)(3)(ii), (d)(1) & (2), .19(a) and
846.17(b)(3) [deletion] and (c).
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[FR Doc. 98-16812 Filed 6-23-98; 8:45 am]
BILLING CODE 4310-05-M
