[Federal Register Volume 61, Number 172 (Wednesday, September 4, 1996)]
[Rules and Regulations]
[Pages 46552-46554]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-22448]
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DEPARTMENT OF THE INTERIOR
30 CFR Part 946
[VA-108-FOR]
Virginia Regulatory Program
AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM),
Interior.
[[Page 46553]]
ACTION: Final rule; approval of amendment.
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SUMMARY: OSM is approving 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 remining standards of the Federal Energy Policy Act of
1992. The amendment is intended to revise the Virginia program to be
consistent with the corresponding Federal regulations as amended on
November 27, 1995. (60 FR 58480)
EFFECTIVE DATE: September 4, 1996.
FOR FURTHER INFORMATION CONTACT:
Robert A. Penn, Director, Big Stone Gap Field Office, 1941 Neely 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 Proposed 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 61088). Subsequent actions concerning
conditions of approval and program amendments can be found at 30 CFR
946.11, 946.12, 946.13, 946.15, and 946.16.
II. Submission of the Proposed Amendment
By letter dated May 28, 1996, (Administrative Record No. VA-885)
Virginia submitted a proposed amendment to its program pursuant to
SMCRA. Virginia submitted the proposed amendment at its own initiative.
Virginia proposed amendments to implement the remining standards of the
Federal Energy Policy Act of 1992.
OSM announced receipt of the proposed amendment in the June 19,
1996, Federal Register (61 FR 31071) and in the same document opened
the public comment period and provided an opportunity for a public
hearing on the adequacy of the proposed amendment. The public comment
period closed on July 19, 1996.
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.
Revisions not specifically discussed below concern nonsubstantive
wording changes, or revised cross-references and paragraph notations to
reflect organizational changes resulting from this amendment.
A. Revisions to Virginia Regulations That Are Substantively Identical
to the Corresponding Federal Regulations
The amendments proposed by Virginia are as follows:
1. Section 480-03-19.700.5 Definitions
(a) ``Lands eligible for remining'' has been added to mean those
lands that would otherwise be eligible for expenditures under section
404 or under section 402(g)(4) of the Federal Act.
(b) ``Unanticipated event or condition'' has been added to mean (as
used in Sec. 480-03-19.773.15), an event or condition related to prior
mining activity which arises from a surface coal mining and reclamation
operation on lands eligible for remining and was not contemplated by
the applicable permit.
2. Section 480-03-19.773.15 Review of Permit Applications
(a) New subsection (b)(4) has been added to provide, at (b)(4)(i)
that subsequent to October 24, 1992, the prohibitions of paragraph (b)
of this section regarding issuance of a new permit shall not apply to
any violation that: occurs after that date; is unabated; and results
from an unanticipated event or condition that arises from a surface
coal mining and reclamation operation on lands that are eligible for
remining under a permit which is issued before September 30, 2004, or
any renewals thereof, and held by the person making applications for
the new permit.
New subsection (b)(4)(ii) provides that for permits issued under
Sec. 480-03-19.785.25 of this chapter, an event or condition shall be
presumed to be unanticipated for the purposes of this paragraph if it:
arose after permit issuance; was related to prior mining; and was not
identified in the permit.
(b) New subsection (c)(14) has been added to provide that for
permits to be issued under Sec. 480-03-19.785.25 of this chapter, the
permit application must contain: lands eligible for remining; an
identification of the potential environmental and safety problems
related to prior mining activity which could reasonably be anticipated
to occur at the site; and mitigation plans to sufficiently address
these potential environmental and safety problems so that reclamation
as required by the applicable requirements of this chapter can be
accomplished.
3. Section 480-03-19.785.25 Lands Eligible for Remining
This new section contains permitting requirements to implement
Sec. 480-03-19.773.15(b)(4), and provides that: any person who submits
a permit application to conduct a surface coal mining operation on
lands eligible for remaining must comply with this section; any
application for a permit under this section shall be made according to
all requirements of this subchapter applicable to surface coal mining
and reclamation operations. In addition, the application shall: to the
extent not otherwise addressed in the permit application, identify
potential environmental and safety problems related to prior mining
activity at the site and that could be reasonably anticipated to occur.
This identification shall be based on a due diligence investigation
which shall include visual observations at the site, a record review of
past mining at the site, and environmental sampling tailored to current
site conditions; with regard to potential environmental and safety
problems referred to in paragraph (b)(1) of this section, describe the
mitigative measures that will be taken to ensure that the applicable
reclamation requirements of this chapter can be met; The requirements
of this section shall not apply after September 30, 2004.
4. Section 480-03-19.816/817.116 Revegetation: Standards for Success
Subsections (c)(2)(i) have been amended by adding the phrase
``except as provided in paragraph (c)(2)(ii) of this section'' to the
first sentence. This modification was made in response to the new
language added at subsection (c)(2)(ii), and that is identified below.
New subsection (c)(2)(ii) provide that the responsibility period
shall be two full years for lands eligible for remining included in
permits issued before September 30, 2004, or any renewals thereof. To
the extent that the success standards are established by paragraph
(b)(5) of this section, the lands shall equal or exceed the standards
during the growing season of the last year of the responsibility
period.
Because the above proposed revisions are identical in meaning to
the corresponding Federal regulation, the Director finds that
Virginia's proposed rules are no less effective than the Federal rule.
[[Page 46554]]
IV. Summary and Disposition of Comments
Public Comments
The Director solicited public comments and provided an opportunity
for a public hearing on the proposed amendment. No public comments were
received, and because no one requested an opportunity to speak at a
public hearing, no hearing was held.
Federal Agency Comments
Pursuant to 30 CFR 732.17(h)(11)(i), the Director 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 Agriculture, Natural Resources Conservation Service
responded and recommended that the amendments be accepted. The U.S.
Fish and Wildlife Service responded and stated that the proposed
regulatory changes are not likely to adversely affect threatened or
endangered species or critical habitats. The U.S. Department of Labor,
Mine Safety and Health Administration (MSHA) responded and stated that
the amendments should be accepted.
Environmental Protection Agency (EPA)
Pursuant to 30 CFR 732.17(h)(11)(ii), OSM is required to obtain the
written concurrence of the EPA with respect to those provisions of the
proposed 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 on May 31, 1996. EPA responded that the
amendment was acceptable.
State Historical Preservation Officer (SHPO) and the Advisory Council
on Historic Preservation (ACHP)
Pursuant to 30 CFR 732.17(h)(4), OSM solicited comments on the
proposed amendment from the SHPO and ACHP. They did not respond.
V. Director's Decision
Based on the above finding(s), the Director approves the proposed
amendment as submitted by Virginia on May 28, 1996.
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 concluded 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 special 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
assumption 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.
Intergovernmental relations, Surface mining, Underground mining.
Dated: August 14, 1996.
Tim L. Dieringer,
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 by adding paragraph (ll) to read as
follows:
Sec. 946.15 Approval of regulatory program amendments.
* * * * *
(ll) The amendment to the Virginia program concerning
implementation of the remining standards of the Federal Energy Policy
Act of 1992 as submitted to OSM on May 28, 1996, is approved effective
September 4, 1996.
[FR Doc. 96-22448 Filed 9-3-96; 8:45 am]
BILLING CODE 4310-05-M
