48758 Federal Register / Vol. 62, No. 180 / Wednesday, September 17, 1997 / Rules and Regulations

PART 171—AVAILABILITY OF

INFORMATION AND RECORDS TO

THE PUBLIC

1. The authority citation for Part 171

is revised to read as follows:

Authority: 5 U.S.C. 551 et seq., 552, 552a;

5 U.S.C. App. 201; E.O.12600, 52 FR 23781,

3 CFR, 1987 Comp., p. 235; E.O.12958, 60 FR

19825, 3 CFR, 1995 Comp., p. 333.

Subpart B—Freedom of Information

Provisions

2. Section 171.12 is revised to read as

follows:

§ 171.12 Time limits/expedited processing.

(a) Whenever possible, the

Department will furnish the requested

records within 20 days (excluding

Saturdays, Sundays, and legal public

holidays), except as cited in § 171.4.

(b) A separate queue shall be

established for requests meeting the test

for expeditious processing. Requests for

expedited processing shall be granted to

the requester after the requester has

demonstrated that a compelling need

exists. A notice of the determination as

to whether to grant expedited

processing shall be provided to the

requester within ten (10) days of the

date of the request. The request for

expedited processing shall set forth with

specificity the relevant facts upon

which the requester relies and

demonstrate to the Department that

substantive records relevant to the

stated needs may exist and be deemed

releasable.

(c) A ‘‘compelling need’’ is deemed to

exist where the requester can

demonstrate one of the following:

(1) Failure to obtain requested

information on an expedited basis could

reasonably be expected to pose an

imminent threat to the life or physical

safety of an individual;

(2) The information is urgently

needed by an individual primarily

engaged in disseminating information in

order to inform the public concerning

actual or alleged Federal Government

activity. News media requesters would

normally qualify; however, other

persons must demonstrate that their

primary activity involves publishing or

otherwise disseminating information to

the public, not just a particular segment

or group.

(i) Urgently needed. The information

has a particular value that will be lost

if not disseminated quickly. Ordinarily

this means a breaking news story of

general public interest. However,

information of historical interest only,

or information sought for litigation or

commercial activities would not qualify,

nor would a news media publication or

broadcast deadline unrelated to the

newsbreaking nature of the information;

(ii) Actual or alleged Federal

Government activity. The information

concerns some actions taken,

contemplated, or alleged by or about the

government of the United States, or one

of its components or agencies, including

the Congress;

(3) Substantial due process rights of

the requester would be impaired by the

failure to process immediately; or

(4) Substantial humanitarian concerns

would be harmed by the failure to

process immediately.

(d) A demonstration of compelling

need by a requester shall be made by a

statement certified by the requester to be

true and correct to the best of their

knowledge. This statement must

accompany the request in order to be

considered and responded to within the

ten (10) days required for decisions on

expedited access.

(e)(1) The Department’s decision to

deny expedition may be appealed to the

Chief of the Requester Liaison Division,

Room 1512, Department of State, 2201

C Street, NW., Washington, D.C. 20520.

Appeals should contain as much

information and documentation as

possible to support the request for

expedited processing in accordance

with the criteria set forth in paragraph

(c) of this section.

(2) The Requester Liaison Division

Chief will issue a final decision in

writing within ten (10) days from the

date on which the Department received

the appeal.

Dated: September 3, 1997.

Patrick F. Kennedy,

Assistant Secretary for the Bureau of

Administration.

[FR Doc. 97–24654 Filed 9–16–97; 8:45 am]

BILLING CODE 4710–24–P

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation

and Enforcement

30 CFR Part 946

[VA–106–FOR]

Virginia Regulatory Program

AGENCY: Office of Surface Mining

Reclamation and Enforcement (OSM),

Interior.

ACTION: Final rule; approval of

amendment.

SUMMARY: OSM is approving with

exceptions a proposed 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 proposed

amendment consists of regulatory

changes to implement the standards of

the Federal Energy Policy Act of 1992,

and the Code of Virginia. 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)

concerning subsidence damage.

EFFECTIVE DATE: September 17, 1997.

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 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 become ‘‘4 VAC 25–130–700.5.’’

The Virginia Division of Mines,
Federal Register / Vol. 62, No. 180 / Wednesday, September 17, 1997 / Rules and Regulations 48759

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 amendment was

published in the June 11, 1996, Federal

Register (61 FR 29506), 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 July 11,

1996. The public comment period was

reopened on July 24, 1996 (61 FR

38422), to accept additional comments

on the proposed use of a 28-degree angle

of draw with the rebuttable presumption

of causation by subsidence provision.

That comment period ended on August

8, 1996. On September 12, 1996 (61 FR

48110), OSM announced a scheduled

public hearing on the proposed

amendments. The hearing was held on

September 18, 1996 (Administrative

Record Number VA–896).

By letter dated July 11, 1996

(Administrative Record Number VA–

894), OSM requested that Virginia

provide additional information on the

proposed amendments, including

technical justification for the use of the

28 degree angle of draw. Virginia

responded to that request for additional

information by letter dated January 3,

1997 (Administrative Record Number

VA–902). Virginia also submitted to

OSM on March 20, 1997, changes to

correct minor punctuation and

typographical errors Administrative

Record Number (VA–914). OSM

reopened the public comment period on

April 7, 1997, to provide for public

comment on Virginia’s technical

justification of the proposed use of the

28 degree angle of draw. The comment

period closed on April 22, 1997 (62 FR

16509).

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.

The amendments proposed by

Virginia are as follows:

1. Section 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.

The Director finds this definition to

be identical to and no less effective than

the counterpart Federal definition at 30

CFR 701.5.

(b) ‘‘Material damage, in the context

of §§ 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.

The Director finds this definition to

be substantively identical to and no less

effective than the counterpart Federal

definition at 30 CFR 701.5.

(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 § 480–03–19.700.5 of this

chapter. Any building used only for

commercial agricultural, industrial,

retail or other commercial enterprises is

excluded.

The Director finds this definition to

be substantively identical to and no less

effective than the counterpart Federal

definition at 30 CFR 701.5.

(d) ‘‘Occupied residential dwelling

and structures related thereto’’ has been

added to mean, for purposes of §§ 480–

03–19.784.20 and 480–03–19.817.121,

any building or other structures that, at

the time the subsistence 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

residential 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 sewage 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 (hereinafter

referred to in this preamble as

‘‘protected structure’’).

The Director finds this definition to

be substantively identical to and no less

effective than the counterpart Federal

definition at 30 CFR 701.5.

(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

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 in an 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.

The Director finds this definition to

be identical to and no less effective than

the counterpart Federal definition at 30

CFR 701.5.

2. Section 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.’’

The Director finds this provision to be

identical to and no less effective than
48760 Federal Register / Vol. 62, No. 180 / Wednesday, September 17, 1997 / Rules and Regulations

the counterpart Federal provision at 30

CFR 784.14(e)(3)(iv).

3. Section 480–03–19.784.20

Subsidence Control Plan

The existing language of this

provision is deleted and replaced 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 noncommercial 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).

The Director finds this provision to be

substantively identical to and no less

effective than the counterpart Federal

provision at 30 CFR 784.20 concerning

subsidence control plan.

4. Section 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 § 480–03–19.784.14 and the

geologic information concerning

baseline hydrologic conditions required

in § 480–03–19.784.22 will be used to

determine the impact of mining

activities upon the water supply.

The Director finds this provision to be

substantively identical to and no less

effective than the counterpart Federal

provision at 30 CFR 817.41(j)

concerning drinking, domestic or

residential water supply.

5. Section 480–03–19.817.121

Subsidence Control

Subsection (a) concerning measures to

prevent or minimize damage is

amended by adding new language (at

new subsection (a)(2)) 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.

The proposed language is

substantively identical to and no less

effective than the counterpart Federal

language at 30 CFR 817.121(a)(2) with

one exception. 30 CFR 817.121(a)(2)

contains no counterpart to the proposed

language that provides an exception to

the requirement to include measures to

minimize material damage to protected

structures if the structure owners deny

the permittee access to implement the

measures to minimize material damage.

‘‘Planned subsidence in a predictable

and controlled manner’’ includes

longwall mining and pillar retreat

mining. Mitigation efforts for longwall

mining are performed on the surface.

Such efforts include trenching, bracing

or jacking of the protected structure.

These mitigation measures remain in

place while the ground underneath the

structure subsides, keeping the structure

level. For example, jacks cannot be

placed in the underground mine

because longwall machinery moves as

one continuous unit and cannot ‘‘skip’’

over the area under the structure. Thus,

if a permittee conducting longwall

operations (‘‘longwall permittee’’) is

denied access to a protected structure, it

is not viable for the longwall permittee

to place jacks under the structure or

place braces/trenches around the

structure. However, if the planned

subsidence involves pillar retreat

mining, then mitigation efforts could be

performed underneath the protected

structure regardless of whether or not a

structure owner denied the permittee

access to his structure. The permittee in

a pillar retreat operation could protect

the structure by either leaving the

pillars of coal under and surrounding

the protected structure or replacing the

pillars of coal with a support. Thus,

Virginia’s proposal with regard to

longwall mining operations is consistent

with the federal rule at 30 CFR

817.121(a)(2) which requires measures

to minimize subsidence damage only

when such measures are ‘‘consistent

with the mining method employed’’ and

‘‘technologically feasible.’’

OSM was also concerned about

whether or not the structure owner

would be notified by the longwall

permittee of the consequences of failing

to allow access for the placement of

mitigation measures. Since Virginia’s

proposal had no direct federal

counterpart, there was no direct federal

notice counterpart. The Federal

regulation at 30 CFR 784.20(a)(3)

provide a relevant comparison. 30 CFR

784.20(a)(3) provides that, if an owner

denies access for a pre-mining survey,

the permittee must provide certain

information to the landowner

concerning the potential negative effect

of their actions, but the lack of access

does not prevent the permittee from

mining. Virginia, by a letter dated

January 3, 1997, (Administrative Record

Number VA–902) clarified that under

480–03–19.817.121(a)(2)(iii), the

permittee must provide a written

document to the structure owner

informing the owner of the

consequences of denying access.

Further, the permittee must provide

Virginia with evidence documenting

such notice.

Accordingly, the Director finds that

with respect to longwall permittees, the

proposed language is consistent with

the Federal regulations and is approving

480–03–19.817.121(a)(2)(iii) to the

extent it applies to longwall permittees.

The Director notes that denial of entry

to the longwall permittee to perform

mitigation measures does not relieve the

longwall permittee from the obligation

to comply with the repair or

compensation requirements of 30 CFR

817.121(c)(4).

Subseciton (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
Federal Register / Vol. 62, No. 180 / Wednesday, September 17, 1997 / Rules and Regulations 48761

compensation for damage to noncommercial 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 presubsidence survey is denied; rebuttal of

presumption; information to be

considered in determination of

causation; and adjustment of bond

amount for subsidence damage.

The Director finds the proposed

provision to be substantively identical

to and no less effective than the

counterpart Federal provision at 30 CFR

817.121(c)(4) with a few exceptions.

a. Virginia’s regulation at § 480–03–

19.817.121(c)(4)(i), creates a rebuttable

presumption that subsidence caused

damage to a protected structure if that

structure is within an area that is

‘‘determined by projecting a specified

angle of draw from the outermost

boundary of any underground mine

workings to the surface of the land.’’

Virginia’s language is substantively

identical to the federal regulation at 30

CFR 817.121(c)(4)(i). However, in a

letter dated January 3, 1997 from

Virginia to OSM (Administrative Record

Number VA–902), Virginia stated that

the ‘‘Division will continue to measure

angle of draw from the edge of high

extraction mining areas, where

subsidence is likely to occur (areas

where 50% or more of the coal has been

removed).’’ This interpretation by

Virginia is inconsistent with the Federal

rules. The angle of draw is defined in

the preamble to the 1995 Federal rules

on subsidence as ‘‘the angle of

inclination between the vertical at the

edge of the underground mine workings

and the point of zero vertical

displacement at the edge of the

subsidence trough.’’ 60 FR 16722, 16738

(March 31, 1995). OSM does not limit

the angle of draw to high extraction

areas. Thus, Virginia’s interpretation

could create a smaller area within

which the presumption of causation

would apply. Accordingly, since

Virginia’s language is substantively

identical to the federal regulation, OSM

is approving § 480–30–

19.817.121(c)(4)(i) to the extent it is

interpreted consistently with the plain

language of 30 CFR 817.121(c)(4)(i).

OSM is not approving § 480–03–

19.817.121(c)(4)(i) to the extent it will

be applied in a manner consistent with

the plain language of the federal rule

that states the angle of draw will be

projected ‘‘from the outermost boundary

of any underground mine workings to

the surface of the land.’’

Virginia is also adding language to

allow for the approval of the sitespecific angle of draw. This language is

substantive identical to 30 CFR

817.121(c)(4)(ii). However, as noted

above Virginia is not interpreting how

the angle of draw will be determined in

a manner consistent with the federal

rules. Therefore, OSM is approving

§ 480–03–19.817.121(c)(4)(ii) to the

extent it is interpreted consistently with

the plain language of 30 CFR

817.121(c)(4). OSM is not approving

§ 480–03–19.817.121(c)(4)(ii) to the

extent it will be applied in a manner

inconsistent with the plain language of

the federal rule.

(b) At proposed at § 480–03–

17.817.121(c)(4)(i), Virginia has

provided for a 28-degree angle of draw

rather than the 30-degree angle of draw

provided in the Federal regulations at

30 CFR 817.121(c)(4)(i).

OSM approved the Federal

regulations concerning angle of draw at

30 CFR 817.121(c)(4) on March 31, 1995

(60 FR 16722–16751). The preamble to

the approval of 817.121(c)(4) appears on

pages 16737 through 16741. That

preamble presents OSM’s explanation

for approval of the 30-degree angle of

draw and the flexibility which allows

states to apply for an angle of draw

other than the 30-degree angle of draw,

and an explanation of how the angle of

draw is implemented.

The purpose of paragraph 30 CFR

817.121(c)(4) is to set out a procedure under

which a specified area would be subject to

a rebuttable presumption that subsidence

from underground mining caused surface

damage to non-commercial buildings or

occupied residential dwellings and related

structures. This evidentiary standard would

simplify establishing causation of subsidence

damage in many cases, by relieving the

regulatory authority of the initial burden of

providing evidence that damage was caused

by the mine operation. [60 FR at 16737]

The presumption would be established

only after it is determined that damage

caused by earth movement did in fact occur

within the specified angle of draw. The

burden of rebutting the presumption will be

appropriately on the mine operator, who will

have the best information as to the nature,

timing, and sequence of mining activities,

geological conditions, etc.; i.e., the types of

facts directly related to causation of the

damage. [60 FR at 16737]

OSM believes that the establishment of a

specific angle for the presumption is

important and has a number of effects or

ramifications. In any enforcement

proceedings concerning allegations of

subsidence damage to protected structures, it

will affect the initial burdens of going

forward with the evidence for both the

regulatory authority and the permittee * * *

[o]nce the angle of draw is established,

permit applicants will be required to comply

with all presubsidence survey requirements

covering at least the area within the angle of

draw * * * OSM believes [that] applying the

presumption to a specified angle of draw will

balance the various purposes of SMCRA,

including both environmental protection and

the SMCRA section 102(k) purpose of

encouraging the full utilization of coal

resources through the application of under

ground extraction technologies. (60 FR at

16737–16738)

The ‘‘angle of draw’’ is the angle

formed between a line drawn vertically

from the edge of the underground

workings upward to the surface, and a

line drawn from that same point on the

edge of the underground workings up to

the surface through the point at the

outside edge of a subsidence trough

where the subsidence has diminished to

zero. Therefore, ‘‘the angle of draw is

one way to define the outer boundary of

subsidence displacement that may occur

at the surface.’’ (60 FR at 16738)

In practice (in accordance with

817.121(c)(4)), such an angle of draw is

drawn upward from all points along the

outermost boundary of any (all)

underground mine workings. Therefore,

it is presumed (rebuttable) that damage

caused by earth movement to protected

structures that are either directly above

mine workings or within the specific

angle of draw of those workings, has

been caused by the permittee. The

Director notes that the purpose of the

use of an angle of draw is not to prevent

mining or subsidence. The purpose of

the use of an angle of draw is to ease

the initial investigative burden on the

regulatory authority in those cases

where the probability is high that

damage by earth movement was caused

by the underground mining operations.

While recognizing regional and sitespecific variability in the angle of draw,

OSM decided to establish a national

standard of 30 degrees. This is

consistent with the outer limits

determined for earth movement in most

subsidence studies across the United

States, particularly later studies

addressing long wall mining * * *.

This nationwide standard is

conservative’’ (most subsidence is

expected to take place within this angle

of draw) and ‘‘offers reasonable

protection to surface owners anticipated

subsidence scenarios.’’ (60 FR at 16739)

On the other hand, while the Federal

standard is conservative, it was not

intended to encompass 100 percent of

possible subsidence damage. OSM

concluded that such a standard would

place an unreasonable burden on the

permittee with regard to pre-subsidence

survey obligations. Some causes will

likely occur where earth movement has

caused damage to protected structures,

but those structures may be outside of
48762 Federal Register / Vol. 62, No. 180 / Wednesday, September 17, 1997 / Rules and Regulations

the angle of draw standard. In those

cases, the State regulatory authority will

not have the benefit of the presumption

of causation. The regulatory authority

must, nevertheless, investigate such

occurrences to obtain the evidence

necessary to determine whether or not

such damage is caused by the permittee.

Although the Federal regulation

provides that the presumption shall

apply to a 30-degree angle of draw, 30

CFR 817.121(c)(4)(i) allows the States to

establish a different angle of draw if the

State shows in writing that the angle has

a more reasonable basis than the 30-

degree angle of draw, based on

geotechnical analysis of the factors

affecting potential surface impacts of

underground coal mining operations in

the State. Such an angle of draw should

be the angle within which vertical

displacement of the surface is

reasonably expected. Further, the

Federal rule ensures that the regulatory

authority also has the flexibility to

establish a different angle of draw on a

site-specific basis, where such variation

is justified by appropriate geotechnical

analysis.

By letter dated January 3, 1997

(Administrative Record Number VA–

902), Virginia submitted information to

OSM that is intended to show that a 28-

degree angle of draw has a more

reasonable basis for Virginia than the

30-degree angle of draw. Virginia’s

justification for the proposed 28-degree

angle of draw is based on a review of

existing literature, information

submitted by consultants on permit

applications, and the use of the Surface

Deformation Prediction System (SDPS)

computer modeling software to predict

the zero point of movement on the

surface (Angle of Draw). The detailed

information presented by Virginia

shows Angle of Draw ranging from 16 to

21 degrees in Dickenson County, general

angle of draw statement for the eastern

coal fields as 21 to 26 degrees from

published literature, and detailed

surface subsidence measurements by

coal companies over long wall mines of

7 to 15 degrees. The SDPS computer

subsidence model predicts 13 to 15. The

28-degree angle of draw proposed by

Virginia is well outside of any of the

above data and, therefore, is the angle

within which vertical displacement of

the surface is reasonably expected.

The Director finds that Virginia has

provided sufficient written justification

based on a geotechnical analysis of the

factors affecting potential surface

impacts for the proposed use of a 28-

degree angle of draw in accordance with

30 CFR 817.121(c)(4)(i). Therefore, the

Director is approving Virginia’s use of

the 28-degree angle of draw so long as

it is to be measured from the outermost

boundary of any underground mine

workings to the surface of the land. The

Director notes, as discussed above, that

it is possible that earth movement that

causes damage to protected structures

that are outside the 28-degree angle of

draw standard could occur. In those

cases, Virginia will not have the benefit

of the presumption of causation.

Virginia must, nevertheless, investigate

such occurrences to obtain the evidence

necessary to determine whether or not

such damage is caused by the permittee.

c. New § 480–03–19.817.121(c)(5) of

the Virginia rules is substantively

identical to the counterpart Federal

regulations except that Virginia has also

added the following. Virginia provides

that no additional bond is required if

the permittee demonstrates that the

liability insurance required under

§ 480–03–19.800.60 provides applicable

coverage.

There is no direct Federal counterpart

to the proposed language at 30 CFR

817.121(c)(5). However, the preamble to

the Federal provision at 30 CFR

817.121(c)(5) (see 60 FR 16741–16742;

March 31, 1995) specifically addresses

the option that would be implemented

by the Virginia language. In that

preamble, OSM stated that under 30

CFR 800.14(c), if the liability insurance

policy required under section 30 CFR

800.60 would provide coverage

sufficient to fund the reclamation of

subsidence damage, that insurance may

be substituted for increased bond.

Therefore, the Director finds that

Virginia’s proposed language is

consistent with and no less effective

than 30 CFR 817.121(c)(5).

IV. Summary and Disposition of

Comments

Federal Agency Comments

Pursuant to section 503(b) SMCRA

and 30 CFR 732.17(h)(11)(I), comments

were solicited from various interested

Federal agencies. The U.S. Department

of Labor, Mine Safety and Health

Administration (MSHA) responded

(Administrative Record Number VA–

888) and stated that the proposed

amendments pose no conflict with

MSHA regulations. The U.S. Fish and

Wildlife Service (FWS) responded and

stated that the FWS has reviewed the

amendments and has determined that it

appears unlikely that the proposed

amendments will affect Federally listed

critical habitat or species

(Administrative Record Number VA–

893).

The U.S. Department of Agriculture,

Natural Resources Conservation Service

(NRCS) responded (Administrative

Record Number VA–892) and

commented on the proposed 28-degree

angle of draw. NRCS stated that while

tests and analyses conducted by and for

the NRCS in the Appalachian coal fields

have shown a 25-degree angle of draw

from the edge of extraction, NRCS has

usually assumed a 30-degree angle of

draw for land rights and safety reasons.

NRCS said that the 30-degree figure,

while somewhat conservative, is widely

accepted in the academic, technical and

engineering communities. In response,

the Director notes that in Finding 5,

above, Virginia has submitted technical

justification for using a 28-degree angle

of draw. That is, the Virginia technical

information shows that the 28-degree

angle of draw has a more reasonable

basis for Virginia. As noted in the

finding, Virginia’s justification does not

guarantee (nor does the Federal

standard of 30-degree angle of draw

guarantee) that all subsidence damage

will necessarily take place within the

specified angle of draw. Rather, it is

expected that the great majority of

subsidence damage would occur within

the specified angle of draw. It is

possible that earth movement could

occur that causes damage to protected

structures that are outside the 28-degree

angle of draw standard. In those cases,

Virginia will not have the benefit of the

presumption of causation. Virginia

must, nevertheless, investigate such

occurrences to obtain the evidence

necessary to determine whether or not

such damage is caused by the permittee.

Public Comments

The following comments were

received in response to the announced

public comment periods. A public

hearing was held on September 18,

1997, and the comments below also

reflect those offered at the hearing.

One commenter recommended

various typographical corrections be

made to the amendment. In response,

the Director notes that Virginia has

corrected all but one of the

typographical errors that were identified

by the commenter. The remaining error

at § 480–03–19.784.20(b)(7), is clearly a

typographical error and does not affect

the meaning of 784.20(b). Therefore, as

stated in the Director’s finding 5, the

Director finds it to be no less effective

than the Federal regulation.

Several commenters stated that the

proposed 28-degree angle of draw

should not be approved. Some of these

commenters expressed disbelief that any

specific angle of draw could adequately

protect the coalfield residents from

damage from subsidence. One commeter

said that he can’t see how anyone can

draw a line on a map and say on one
Federal Register / Vol. 62, No. 180 / Wednesday, September 17, 1997 / Rules and Regulations 48763

side of this line damage is caused by

mining, but on the other side of the line

damage can not be mining related. It is

especially impossible, the commenter

stated, to use a single measurement for

any entire region or state. Another

commenter stated that the current use

and practical application of the angle of

draw theory is totally without merit and

is contrary to the way our earth is made

or reacts to stress. If a specific angle of

draw must be chosen, commenters

recommended a 30-degree or 35-degree

angle of draw. The commenter stated

that the decision to use either the 28-

degrees or 30-degrees angle of draw

should consider the obvious, on-theground damages above high-extraction

mines. Another commenter said that he

was told by company officials that his

residence is just outside the angle of

draw and that he would have to prove

that the damage was subsidence related.

To the extent that the comments

question the concept of any angle of

draw, these comments are not within

the scope of this rulemaking because

they question the federal rule which

was approved by OSM in 1995. For a

further discussion of the purpose of the

angle of draw please see the federal rule

at 60 FR at 16737–16738.

The Director notes that, as discussed

above in Finding 5, the Federal

regulations at 30 CFR 817.121(c)(4)(I),

while specifying a 30-degree angle of

draw, also authorize the States to amend

their programs to apply the presumption

to a different angle of draw. To receive

approval of a different angle of draw,

the regulatory authority must show in

writing that the proposed angle has a

more reasonable basis than the 30-

degree angle of draw. Virginia has

provided the required technical

justification, and OSM, after reviewing

the information supplied by Virginia,

concluded (see Finding 5.b.) that

Virginia has met the requirements of 30

CFR 817.121(c)(4)(I).

In addition, it should be understood

that neither the State’s 28-degree angle

of draw, nor the Federal 30-degree angle

of draw are intended to encompass 100

percent of the possible cases where

damage to surface structures may be

caused by underground mining. Rather,

OSM designed the rule to apply an

angle of draw within which it would be

reasonable to presume that such damage

is caused by the underground mining

operations. The presumption, however,

does not change the ultimate burden of

proof in a damage determination.

The ultimate burden of persuasion

that a permittee is responsible for

damage to a structure still lies with the

regulatory authority or OSM. ‘‘The

presumption * * * [is] established only

after it is determined that damage

caused by earth movement did in fact

occur within the specified angle of

draw.’’ [60 FR at 16737] The burden of

rebutting the presumption will be on the

permittee. The ‘‘[p]ermittee may provide

information * * * either before an

enforcement action is taken, when the

regulatory authority or OSM is

determining whether a violation exists

* * * or after enforcement action

occurs.’’ [60 FR 17637]

If damage occurs to a protected

surface structure that is outside the

specified angle of draw, the

presumption does not exist. That is, it

cannot be presumed that the permittee

caused the damage. Instead, the

regulatory authority must gather and

evaluate evidence that the damage is

caused by the permittee. The permittee,

of course, may submit evidence in an

attempt to refute the evidence submitted

by the regulatory authority. The Director

notes that neither the use of the 30-

degree angle of draw or the use of an

alternative, approved angle of draw

(such as 28 degrees) is intended to

diminish the protection afforded to noncommercial buildings, and occupied

residential dwellings and structures

related thereto, under 30 CFR 817.121.

One commenter stated that

landowners have no chance to prove

anything when they can’t get

cooperation from coal company officials

in even looking at maps to determine

when and where mining under and

around their property occurred. In

response, the Director notes that it is the

responsibility of the State to investigate

subsidence damage complaints. Mine

maps are available in the permit files

that should provide enough information

for the State to determine if mining is

being conducted under a specific

property. These maps are available for

public inspection under § 480–03–

19.773.13(a)(2). The permittees are

required under § 480–03–19.817.122 to

provide six-months advance notice to

property owners of proposed mining

under their property.

One commenter stated that the mining

maps are not reliable enough to use the

angle of draw on the inside part of a

mining operation. The commenter

pointed to the difficulty of rescuing

trapped miners by using mine maps to

locate their position and drill rescue

shafts to reach them. How can you, the

commenter asked, use an angle of draw

determined from mine maps to consider

damage to people’s houses, when

mining companies can’t even hit a

simple opening to rescue trapped

miners? Because of this inaccuracy, the

angle of draw should be done away

with. The Director notes that this

comment questions the concept of any

angle of draw and, therefore, is not

within the scope of this rulemaking

because it questions the federal rule

which was approved by OSM in 1995.

A commenter provided the following

comments on Virginia’s January 3, 1997,

technical justification of the proposed

28-degree angle of draw. The

commenter objected to the use of

statistics, estimates, averages, and

computer modeling for ‘‘angle of draw

calculations.’’ In response, the Director

notes that while some of these types of

mathematical procedures were used in

support of the reduction from 30 to 28

degrees, the basis for the models and

estimates were actual, on-the-ground

measurements of the extent of

subsidence impacts from underground

mining. These measurements were

obtained in Virginia by scientificallydocumented studies of Virginia

Polytechnic Institute & State University

(VPI), and the mining companies.

A commenter contended that the

geologic data upon which the angle of

draw is based, is unsubstantiated by

adequate geological information on rock

types and strength. In response, the

Director notes as part of Virginia’s

justification of the use of a 28-degree

angle of draw, the State included the

results of subsidence models generated

by the computer software Surface

Deformation Prediction System (SDPS).

This computer software, which was

developed by VPI in cooperation with

OSM, has been validated from actual

mine subsidence data in Virginia. The

software allows the prediction of the

angle of draw, predicated on the amount

of ‘‘hardrock’’ in the overburden above

an underground mine. Overburden and

other data from two Virginia mines were

applied to SDPS. Hardrock for these two

models consisted of 69.5 and 76.7

percent based on actual core samples,

and the angle of draw predicted by

SDPS equated to 15.1 and 13.8 degrees.

The stratigraphy in southwestern

Virginia is noted for massive sandstones

and other types of hardrock above the

coal. The hardrock is estimated to

average 50 percent of coal overburden.

When a 50 percent hardrock figure is

applied to SDPS, the angle of draw

equates to 23 degrees. Using a

conservative figure of 30 percent

hardrock (atypically low for

southwestern Virginia), SDPS predicts

the angle of draw of 28 degrees. Thus,

under the typical conditions of

southwestern Virginia, OSM believes a

28-degree angle of draw for the purposes

of defining the limits of rebuttable

presumption is reasonable, and renders

the regulations proposed by Virginia no
48764 Federal Register / Vol. 62, No. 180 / Wednesday, September 17, 1997 / Rules and Regulations

less effective than the counterpart

provision at 30 CFR 817.121(c)(4)(I).

A commenter was concerned that the

studies preferred to in support of the 28-

degree angle of draw were conducted on

the initial mining panels or pillar

extraction when only a minimal amount

of ground disruption would occur. The

commenter argued that, in reality, as

mining progresses, damages become

more substantial because more of the

overburden’s strength is weakened

causing even greater area of impact. In

response, the Director disagrees with the

commenter for two reasons. First, there

is no scientific support for the

commenter’s hypothesis that the angle

of draw increases as multiple longwall

panels are mined or when full

extraction room-and-pillar mining

extends beyond what has been shown to

be a critical width. Secondly, the State

cited numerous studies by several

different authors in its justification of

the use of a 28-degree angle of draw.

There is no support for the commenter’s

allegation that all or any of these studies

were conducted only during the initial

mining of panels or pillars. Several of

the supporting documents show that the

studies were conducted using

multipanel longwall mines or areas of

extensive room-and-pillar mining.

Several commenters referred to the

McClure #1 mine in Virginia and said

that subsidence damage was not

confined to a 28 degree angle of draw.

One commenter added that the

proportion of sandstone in the

overburden above the McClure #1 mine

is less than expected by the modeling.

In response, the Director notes that

Virginia’s submittal to support their

request for a 28-degree angle of draw

specifically cites information that

concerns the McClure #1 mine

(Administrative Record Number VA

902). In that reference, the Clinchfield

Coal Company (permit 1400411,

revision 9402858) completed a study in

1989 of actual subsidence (not modeling

data) over the McClure # mine in the

Jawbone seam. Clinchfield’s survey data

measured a draw angle of 15 degrees. In

its permit, however, Clinchfield

requested a more conservative 24 degree

angle of draw for the longwall mining.

Both of these angles are well within the

28-degree angle of draw requested by

Virginia. That is, the subsidence trough

at the McClure #1 mine (subsidence

trough is the zone of vertical

displacement as measured by a vertical

line at the edge of the underground

workings and the point where the

vertical displacement diminishes to

zero) was measured to be well within

the proposed 28-degree angle of draw.

Therefore, the Director continues to

believe that the proposed 28-degree

angle of draw is reasonable.

As for allegations of damage outside

of a 28-degree angle of draw, such

allegations do not automatically

discredit the reasonableness of the

proposed angle of draw. As explained in

Finding 5 above, the angle of draw

(whether it be the Federal 30-degrees or

the proposed 28 degrees) is not intended

to encompass 100 percent of all

subsidence damage. Rather, the angle of

draw is intended to encompass an area

within which it is reasonable to

presume that subsidence damage is

caused by the underground mining

operations. Based on the actual

measurements of vertical displacement

above the McClure 11 mine as cited in

the Clinchfield Coal Company study (15

degrees), it is reasonable to believe that

most subsidence damage would be

confined within the proposed angle of

draw. Therefore, the Director continues

to believe that the use of a 28-degree

angle of draw is reasonable and no less

effective than the Federal 30-degree

angle of draw.

Several commenters expressed

concern over how and where the line

that represents the angle of draw is

determined and drawn. One commenter

stated that the angle should be

computed from the outermost boundary

of any underground mine workings. The

commenter stressed the use of the word

‘‘any’’ as it refers to underground mine

workings. The commenter

acknowledged that the ‘‘any’’

requirement is in the Virginia

regulations at § 480–03–

19.817.121(c)(4), but explained that the

angle should be computed to include

the entire mine, the adjacent area, the

affected area, the cumulative impact

area, and the disturbed area. One

commenter requested that OSM clarify

where the angle of draw is measured

from. Another commenter insists the

measure of the angle of draw be outward

from the perimeter of the underground

mine, and suggests that Virginia’s intent

is to only measure outward from highextraction mining areas. These

comments pertain to Virginia’s

regulation at 480–03–19.817.121(c)(4)(I),

which is discussed in the Director’s

Finding 5.a. As previously stated, the

definition of ‘‘angle of draw’’ is defined

as ‘‘the angle of inclination between the

vertical at the edge of the underground

mine workings and the point of zero

vertical displacement at the endge of the

subsidence trough.’’ 60 FR 16722, 16738

(March 31, 1995). The Director agrees

with the commenter that Virginia’s

interpretation is to only measure the

angle of draw from the high extraction

mining areas which is inconsistent with

the plain language of 30 CFR

817.121(c)(4)(I). Accordingly, Virginia’s

regulation is not approved to the extent

it will be applied in a manner

inconsistent with the plain language of

the federal rule.

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. EPA responded

on July 22, 1996 (Administrative Record

No. VA–895) and stated that the

amendment is in compliance with the

Clean Water Act and offered no

additional comments.

V. Director’s Decision

Based on the findings above, and

except as noted below, the Director is

approving Virignia’s amendment

concerning subsidence damage as

submitted by Virginia on May 21, 1996,

and clarified by letter dated January 3,

1997, and revised by a letter dated

March 20, 1997, to correct minor

punctuation and typographical errors.

The Director is not approving § 480–03–

19.817.121(c)(4)(I) to (ii) to the extent it

will be applied in a manner inconsistent

with 30 CFR 817.121(c)(4). The Director

is approving § 480–03–

19.817.121(a)(2)(iii) to the extent it

applies to longwall mining.

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.

Effect of Director’s Decision

Section 503 of SMCRA provides that

a State may not exercise jurisdiction

under SMCRA unless the State program

is approved by the Secretary. Similarly,

30 CFR 732.17(a) requires that any

alteration of an approved State program

be submitted to OSM for review as a

program amendment. Thus, any changes
Federal Register / Vol. 62, No. 180 / Wednesday, September 17, 1997 / Rules and Regulations 48765

to the State program are not enforceable

until approved by OSM. The Federal

regulations at 30 CFR 732.17(g) prohibit

any unilateral changes to State

programs. In his oversight of the

Virginia program, the Director will

recognize only the statutes, regulations

and other materials approved by him,

together with any consistent

implementing policies, directives and

other materials, and will require the

enforcement by Virginia of only such

provisions.

VI. Procedural Determinations

Executive Order 12866

This rule is exempted from review by

the Office of Management and Budget

(OMB) under Executive Order 12866

(Regulatory Planning and Review).

Executive Order 12988

The Department of the Interior has

conducted the reviews required by

section 3 of Executive Order 12988

(Civil Justice Reform) and has

determined that, to the extent allowed

by law, this rule meets the applicable

standards of subsections (a) and (b) of

that section. However, these standards

are not applicable to the actual language

of State regulatory programs and

program amendments since each such

program is drafted and promulgated by

a specific State, not by OSM. Under

sections 503 and 505 of SMCRA (30

U.S.C. 1253 and 1255) and 30 CFR

730.11, 732.15 and 732.17(h)(10),

decisions on proposed State regulatory

programs and program amendments

submitted by the States must be based

solely on a determination of whether the

submittal is consistent with SMCRA and

its implementing Federal regulations

and Whether the other requirements of

30 CFR Parts 730, 731, and 732 have

been met.

National Environmental Policy Act

No environmental impact statement is

required for this rule since section

702(d) of SMCRA (30 U.S.C. 1292(d))

provides that agency decisions on

proposed State regulatory program

provisions do not constitute major

Federal actions within the meaning of

section 102(2)(C) of the National

Environmental Policy Act (42 U.S.C.

4332(2)(C)).

Paperwork Reduction Act

This rule does not contain

information collection requirements that

require approval by OMB under the

Paperwork Reduction Act (44 U.S.C.

3507 et seq.).

Regulatory Flexibility Act

The Department of the Interior has

determined that this rule will not have

a significant economic impact on a

substantial number of small entities

under the Regulatory Flexibility Act

(5 U.S.C. 601 et seq.). The State

submittal which is the subject of this

rule is based upon counterpart Federal

regulations for which an economic

analysis was prepared and certification

made that such regulations would not

have a significant economic effect upon

a substantial number of small entities.

Accordingly, this rule will ensure that

existing requirements previously

promulgated by OSM will be

implemented by the State. In making the

determination as to whether this rule

would have a significant economic

impact, the Department relied upon the

data and assumptions for the

counterpart Federal regulations.

Unfunded Mandates

This rule will not impose a cost of

$100 million or more in any given year

on any governmental entity or the

private sector.

List of Subjects in 30 CFR Part 946

Intergovernmental relations, Surface

mining, Underground mining.

Dated: August 29, 1997.

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:

§ 946.15 Approval of Virginia regulatory

program amendments.

* * * * *

Original

amendment

submission

date

Date of final

publication

Citation/description

* * * * *

May 21, 1996 September

17, 1997.

VA Code

§§ 480–

03–

19.700.5;

784.14,

.20;

817.41,

.121.

[FR Doc. 97–24682 Filed 9–16–97; 8:45 am]

BILLING CODE 4310–05–M

DEPARTMENT OF TRANSPORTATION

Coast Guard

33 CFR Part 100

[CGD08–97–035]

RIN 2115–AE46

Special Local Regulations; Fleur De

Lis Regatta Ohio River Mile 602.0–

604.0, Louisville, KY

AGENCY: Coast Guard, DOT.

ACTION: Temporary final rule.

SUMMARY: Special local regulations are

being adopted for the Fleur De Lis

Regatta. This event will be held on

September 27 & 28, 1997 from 9 a.m.

until 3 p.m. at Louisville, Kentucky.

These regulations are needed to provide

for the safety of life on navigable waters

during the event.

EFFECTIVE DATE: These temporary

regulations are effective from 9 a.m.

until 3 p.m., on September 27 & 28,

1997.

FOR FURTHER INFORMATION CONTACT: LT

Jeffrey W. Johnson, Chief, Port

Operations Department, USCG Marine

Safety Office, Louisville, Kentucky at

(502) 582–5194, ext. 39.

SUPPLEMENTARY INFORMATION:

Regulatory History

In accordance with 5 U.S.C. 553, a

notice of proposed rule making for these

regulations has not been published, and

good cause exists for making them

effective in less than 30 days from the

date of publication. Following normal

rule making procedures would be

impracticable. The details of the event

were not finalized in sufficient time to

publish proposed rules in advance of

the event or to provide for a delayed

effective date.