[Federal Register Volume 65, Number 213 (Thursday, November 2, 2000)]
[Rules and Regulations]
[Pages 65779-65782]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-28194]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 946

[VA-118-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 consists of changes to the Virginia Surface Mining 
Reclamation Regulations concerning subsidence control. The amendment is 
intended to revise the Virginia program to be consistent with the 
corresponding Federal regulations.

EFFECTIVE DATE: November 2, 2000.

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. You can find background information on 
the Virginia program, including the Secretary's findings, the 
disposition of comments, and the conditions of approval in the December 
15, 1981, Federal Register (46 FR 61085-61115). You can find later 
actions on conditions of approval and program amendments at 30 CFR 
946.11, 946.12, 946.13, 946.15, and 946.16.

II. Submission of the Amendment

    By letter dated June 27, 2000 (Administrative Record Number VA-999) 
the Virginia Department of Mines, Minerals and Energy (DMME) submitted 
an amendment to the Virginia program. In its letter, the DMME stated 
that on December 22, 1999, OSM suspended and modified portions of 30 
CFR 784.20 and 30 CFR 817.121 pursuant to an order of the United States 
Appeals Court for the District of Columbia. The DMME further stated 
that the corresponding sections of the Virginia Surface Mining 
Reclamation Regulations also contain the same language the court found 
inappropriate and which OSM consequently removed from the Federal 
rules. The DMME stated that it proposes to amend its rules to be 
consistent with and in the same manner that OSM modified the Federal 
regulations. We announced receipt of the proposed amendment in the July 
14, 2000, Federal Register (65 FR 43723), invited public comment, and 
provided an opportunity for a public hearing on the adequacy of the 
proposed amendment. The comment period closed on August 14, 2000. No 
one requested to speak at a public hearing, so no hearing was held.

Procedural History of Suspended Federal Rules

    The Energy Policy Act was enacted October 24, 1992, Pub. L. 102-
486, 106 Stat. 2776 (1992) (hereinafter, The Energy Policy Act or 
EPAct). Section 2504 of that Act, 106 Stat. 2776, 3104, amends SMCRA, 
30 U.S.C. 1201 et seq. Section 2504 of EPAct added a new section 720 to 
SMCRA. Section 720(a)(1) requires that all underground coal mining 
operations conducted after October 24, 1992, promptly repair or 
compensate for material damage to non-commercial buildings and occupied 
residential dwellings and related structures as a result of subsidence 
due to underground coal mining operations. Repair of damage includes 
rehabilitation, restoration, or replacement of the structures 
identified by section 720(a)(1), and compensation must be provided to 
the owners in the full amount of the diminution in value resulting from 
the subsidence. Section 720(a)(2) requires prompt replacement of 
certain identified water supplies which have been adversely affected by 
underground coal mining operations. Under section 720(b), the Secretary 
of the Interior was required to promulgate final regulations to 
implement the provisions of section 720(a).
    On September 24, 1993 (58 FR 50174), OSM published a proposed rule 
to amend the regulations applicable to underground coal mining and 
control of subsidence-caused damage to lands and structures through the 
adoption of a number of permitting requirements and performance 
standards. We adopted final regulations on March 31, 1995 (60 FR 
16722).
    The rules were challenged by the National Mining Association in the 
District Court for the District of Columbia and in the U.S. Court of 
Appeals for the District of Columbia Circuit. On April 27, 1999, the 
U.S. Court of Appeals issued a decision vacating certain portions of 
the regulatory provisions of the subsidence regulations. See National 
Mining Association v. Babbitt, 173 F.3d 906 (1999). We suspended those 
regulatory provisions that are inconsistent with the rationale provided 
in the U.S. Court of Appeals' decision. The following Federal 
provisions were suspended.

1. 30 CFR 817.121(c)(4)(i)-(iv)

    This regulation provided that if damage to any non-commercial 
building or occupied residential dwelling or structures related thereto 
occurred as a result of earth movement within an area determined by 
projecting a specific angle of draw from the outer-most boundary of any 
underground mine workings to the surface of the land, a rebuttable 
presumption would exist that the permittee caused the damage. The 
presumption typically would have applied to a 30-degree angle of draw. 
Once the presumption was triggered, the burden of going forward shifted 
to the mine operator to offer evidence that the damage was attributable 
to another cause. The purpose of this regulatory provision was to set 
out a procedure under which damage occurring within a specific area 
would be subject to a rebuttable presumption that subsidence from 
underground mining was the cause of any surface damage to non-
commercial buildings or occupied residential dwellings and related 
structures.
    The Court of Appeals vacated, in its entirety, this rule that 
established an angle of draw and that created a rebuttable presumption 
that damage to EPAct protected structures within an area defined by an 
``angle of draw'' was in fact caused by the underground mining 
operation. 173 F.3d at 913.
    In reviewing the regulation, the Court rejected the Secretary's 
contention that the angle of draw concept was reasonably based on 
technical and scientific assessments and that it logically connected 
the surface area that could be damaged from earth movement to the 
underground mining operation.

[[Page 65780]]

The angle of draw provided the basis for establishing the surface area 
within which the rebuttable presumption would apply. The Secretary had 
explained that the rebuttable presumption merely shifted the burden of 
document production to the operator in evaluating whether the damage 
was actually caused by the underground mining operation within the 
surface area defined by the angle of draw. The Court nevertheless held 
that the angle of draw was irrationally broad and that the scientific 
facts presented did not support the logical inference that damage to 
the surface area would be caused by earth movement from underground 
mining within the area.
    Based on the conclusion that there was no scientific or technical 
basis provided for establishing a rational connection between the angle 
of draw and surface area damage, the Court further concluded that the 
rebuttable presumption failed. In reviewing the rebuttable presumption 
requirement, the Court held ``an evidentiary presumption is `only 
permissible if there is sound and rational connection between the 
proved and inferred facts, and when proof of one fact renders the 
existence of another fact so probable that it is sensible and 
timesaving to assume the truth of [the inferred] fact * * * until the 
adversary disproves it.' ;'' That is to say, for the presumption to be 
permissible, the facts would have to demonstrate that the earth 
movement from the underground mining operation ``more likely than not'' 
caused the damage at the surface. See National Mining Association, 173 
F.3d at 906-910. In compliance with the Court of Appeals' decision of 
April 27, 1999, we suspended 30 CFR 817.121(c)(4)(i) through (iv).
    Paragraph (v) within this section applies generally to the types of 
information that must be considered in determining the cause of damage 
to an EPAct protected structure and is not limited to or expanded by 
the area defined by the angle of draw. Therefore, paragraph (v) remains 
in force.

2. Section 784.20(a)(3)

    This regulatory provision required, unless the applicant was denied 
access for such purposes by the owner, a survey which identified 
certain features. First, the survey had to identify the condition of 
all non-commercial buildings or occupied residential dwellings and 
related structures which were within the area encompassed by the 
applicable angle of draw and which might sustain material damage, or 
whose reasonably foreseeable use might be diminished, as a result of 
mine subsidence. Second, the survey had to identify the quantity and 
quality of all drinking, domestic, and residential water supplies 
within the proposed permit area and adjacent area that could be 
contaminated, diminished, or interrupted by subsidence. In addition, 
the applicant was required to notify the owner in writing that denial 
of access would remove the rebuttable presumption that subsidence from 
the operation caused any postmining damage to protected structures that 
occurred within the surface area that corresponded to the angle of draw 
for the operation. (See discussion of angle of draw above). This 
regulatory provision was challenged insofar as it required a specific 
structural condition survey of all EPAct protected structures. The 
Court of Appeals vacated the specific structural condition survey 
regulatory requirement in its decision on April 27, 1999. In reviewing 
the Secretary's requirement, the Court clearly upheld the Secretary's 
authority to require a pre-subsidence structural condition survey of 
all EPAct protected structures. The Court accepted the Secretary's 
explanation that this specific structural condition survey was 
necessary, among other requirements, in order to determine whether a 
subsidence control plan would be required for the mining operation. 
However, because of the Court's ruling on the ``angle of draw'' 
regulation discussed above, it vacated the requirement for a specific 
structural condition survey because it was tied directly to the area 
defined by the ``angle of draw.''
    In compliance with the Court of Appeals'' decision, we suspended 
that portion of 30 CFR 784.20(a)(3) which required a specific 
structural condition survey of all EPAct protected structures. The 
remainder of this section continues in force to the extent that it 
applies to the EPAct protected water supplies survey and any technical 
assessments or engineering evaluations necessarily related thereto.

III. Director's Findings

    Following, according to SMCRA and the Federal regulations at 30 CFR 
732.15 and 732.17, are our findings concerning Virginia's amendment.

4 VAC 25-130-784.20. Subsidence Control Plan

    Subsection 4 VAC 25-130-784.20(a)(3) is amended by adding the 
following language at the end of subdivision (3).

    However, the requirements to perform a survey of the condition 
of all noncommercial buildings or occupied residential dwellings and 
structures related thereto, that may be materially damaged or for 
which the reasonably foreseeable use may be diminished by 
subsidence, within the areas encompassed by the applicable angle of 
draw is suspended consistent with the Secretary's suspension of the 
corresponding federal rule.

    As stated above, the Federal regulation at 30 CFR 784.20(a)(3), 
which required the performance of a survey of the condition of all 
noncommercial buildings or occupied residential dwellings and 
structures related thereto, that may be materially damaged or for which 
the reasonably foreseeable use may be diminished by subsidence, within 
the areas encompassed by the applicable angle of draw is suspended. In 
the proposed amendment, Virginia has suspended the State counterpart to 
the suspended Federal regulation. Since the language of 4 VAC 25-130-
784.20(a)(3) and the added sentence suspending a portion of the 
regulation are substantively identical to the amended Federal 
regulation, we find these changes to the provisions at 4 VAC 25-130-
784.20(a)(3) which required a specific structural condition survey of 
all EPAct protected structures, are consistent with the suspension of 
the Federal regulation discussed above, and do not render the Virginia 
program regulations less effective than the Federal regulations. 
Therefore, we are approving this amendment.

4 VAC 25-130-817.121. Subsidence Control

    Section 4 VAC 25-130-817.121(c)(4), is revised by deleting the 
title ``Rebuttable presumption of causation by subsidence,'' and by 
deleting paragraphs (c)(4)(i) through (iv). New language is added which 
states that ``Section (4)(i) through (iv) are suspended consistent with 
the Secretary's suspension of the corresponding Federal rule.'' The 
paragraph designation ``(v)'' is deleted.
    As amended, section 4 VAC 25-130-817.121(c)(4) provides the 
following.

    (4) Section [sic] (4)(i) through (iv) are suspended consistent 
with the Secretary's suspension of the corresponding federal rule.
    Information to be considered in determination of causation. In 
determination whether damage to protected structures was caused by 
subsidence from underground mining, all relevant and reasonably 
available information will be considered by the division.

    As discussed above, Federal regulations concerning the rebuttable 
presumption at 30 CFR 817.121(c)(4)(i) through (iv) have been 
suspended. Since the regulations at 4 VAC 25-130-817.121(c)(4)(i) 
through (iv) were previously approved by OSM as the

[[Page 65781]]

State counterparts to the suspended Federal regulations, we find that 
the suspension and deletion by Virginia to be consistent with the 
suspension of the Federal regulations and do not render the Virginia 
program regulations less effective than the Federal regulations. 
Therefore, we are approving the amendments.

IV. Summary and Disposition of Comments.

Federal Agency Comments

    According to 30 CFR 732.17(h)(11)(i), we 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 
Labor, Mine Safety and Health Administration (MSHA) responded and 
stated that there appears to be no conflict with the MSHA regulations 
or policy. The U.S. Fish and Wildlife Service (USFWS) responded and 
stated that it foresees no effects from the proposed amendment on the 
USFWS trust resources, including endangered and threatened species. The 
U.S. Department of Agriculture, Natural Resources Conservation Service 
(NRCS) responded and stated its concurrence with the amendments.

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 any provisions of the 
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.).
    None of the rule suspensions Virginia proposed pertain to air or 
water quality standards. Nevertheless, we requested EPA's comments on 
the proposed amendment.
    The EPA responded by letter dated July 11, 2000 (Administrative 
Record Number VA-1002) and stated that it has no objections to the 
amendments since they are not contrary to the clean Water Act or other 
statutes or regulations implemented by the EPA. The EPA also provided 
the following general comments. The EPA stated that Virginia's 
requirements for subsidence control plans and pre-subsidence surveys 
primarily relate to minimizing damage to surface structures and 
drinking water supplies, as required by SMCRA. The EPA recommended 
that, where there is a potential for subsidence problems associated 
with water loss in streams, that stream flow and aquatic life 
monitoring of streams in the path of any longwall mining operation also 
be included in pre-subsidence surveys. The EPA also recommended that 
measures to minimize or prevent subsidence cracks in the stream beds be 
implemented to the extent feasible, including the avoidance of mining 
under the streams and the detecting and sealing of stream cracks after 
subsidence.
    These comments are outside the scope of this amendment.

Public Comments

    We solicited public comments on the amendment. One commenter 
responded and expressed support for the amendments and stated that OSM 
should approve them. In response, and for the reasons discussed above 
in the findings, we are approving the amendments.

V. Director's Decision

    Based on the above findings, we approve the Virginia amendment as 
submitted by Virginia on June 27, 2000.
    To implement this decision, we are amending the Federal regulations 
at 30 CFR Part 946 which codifies decisions concerning the Virginia 
program. We are making this final rule effective immediately to 
expedite the State program amendment process.

VI. Procedural Determinations

Executive Order 12866--Regulatory Planning and Review

    This rule is exempted from review by the Office of Management and 
Budget under Executive Order 12866.

Executive Order 12630--Takings

    This rule does not have takings implications. This determination is 
based on the analysis performed for the counterpart federal regulation.

Executive Order 13132--Federalism

    This rule does not have federalism implications. SMCRA delineates 
the roles of the federal and state governments with regard to the 
regulation of surface coal mining and reclamation operations. One of 
the purposes of SMCRA is to ``establish a nationwide program to protect 
society and the environment from the adverse effects of surface coal 
mining operations.'' Section 503(a)(1) of SMCRA requires that state 
laws regulating surface coal mining and reclamation operations be ``in 
accordance with'' the requirements of SMCRA, and section 503(a)(7) 
requires that state programs contain rules and regulations ``consistent 
with'' regulations issued by the Secretary pursuant to SMCRA.

Executive Order 12988--Civil Justice Reform

    The Department of the Interior has conducted the reviews required 
by section 3 of Executive Order 12988 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

    Section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that a 
decision on a proposed state regulatory program provision does not 
constitute a major federal action within the meaning of section 
102(2)(C) of the National Environmental Policy Act (NEPA) (42 U.S.C. 
4332(2)(C)). A determination has been made that such decisions are 
categorically excluded from the NEPA process (516 DM 8.4.A).

Paperwork Reduction Act

    This rule does not contain information collection requirements that 
require approval by the Office of Management and Budget 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

[[Page 65782]]

data and assumptions for the counterpart federal regulation.

Small Business Regulatory Enforcement Fairness Act

    This rule is not a major rule under 5 U.S.C. 804(2), the Small 
Business Regulatory Enforcement Fairness Act. This rule:
    a. Does not have an annual effect on the economy of $100 million.
    b. Will not cause a major increase in costs or prices for 
consumers, individual industries, federal, state, or local government 
agencies, or geographic regions.
    c. Does not have significant adverse effects on competition, 
employment, investment, productivity, innovation, or the ability of 
U.S. based enterprises to compete with foreign-based enterprises.
    This determination is based upon the fact that the state submittal 
which is the subject of this rule is based upon counterpart federal 
regulations for which an analysis was prepared and a determination made 
that the federal regulation was not considered a major rule.

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: October 19, 2000.
George C. Miller,
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 a new entry to the table in 
chronological order by ``Date of publication of final rule'' to read as 
follows:


Sec. 946.15  Approval of Virginia regulatory program amendments.

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  Original amendment  submission date        Date of publication of final rule          Citation/description
----------------------------------------------------------------------------------------------------------------
 
*                  *                  *                  *                  *                  *
                                                        *
June 27, 2000..........................  November 2, 2000.........................  4 VAC 25-130-784.20(a)(3)
                                                                                     amended and suspended in
                                                                                     part; 817.121(c)(4)(i)
                                                                                     through (iv) suspended and
                                                                                     deleted.
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[FR Doc. 00-28194 Filed 11-1-00; 8:45 am]
BILLING CODE 4310-05-P