[Federal Register Volume 63, Number 121 (Wednesday, June 24, 1998)]
[Rules and Regulations]
[Pages 34280-34287]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-16812]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 946

[VA-112-FOR]


Virginia Regulatory Program

AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM), 
Interior.

ACTION: Final rule; approval of amendment.

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SUMMARY: OSM is approving an amendment to the Virginia permanent 
regulatory program (hereinafter) referred to as the Virginia program) 
under the Surface Mining Control and Reclamation Act of 1977 (SMCRA). 
The amendment revises numerous provisions of the Virginia program 
concerning surface coal mining and reclamation operations. The 
amendment is intended to revise the State program to be consistent with 
the Federal regulations.

EFFECTIVE DATE: June 24, 1998.

FOR FURTHER INFORMATION CONTACT: Mr. Robert A. Penn, Director, Big 
Stone Gap Field Office, Office of Surface Mining Reclamation and 
Enforcement, 1941 Neeley Road, Suite 201, Compartment 116, Big Stone 
Gap, Virginia 24219, Telephone: (540) 523-4303.

SUPPLEMENTARY INFORMATION:
 I. Background on the Virginia Program.
II. Submission of the Amendment.
III. Director's Findings.
IV. Summary and Disposition of Comments.
V. Director's Decision.
VI. Procedural Determinations.

I. Background on the Virginia Program

    On December 15, 1981, the Secretary of the Interior conditionally 
approved the Virginia program. Background information on the Virginia 
program including the Secretary's findings, the disposition of 
comments, and the conditions of approval can be found in the December 
15, 1981, Federal Register (46 FR 61085-61115).
    Subsequent actions concerning the conditions of approval and 
program amendments are identified at 30 CFR 946.11, 946.12, 946.13, 
946.15, and 946.16.

II. Submission of the Amendment

    By letter dated December 1, 1997 (Administrative Record No. VA-
938), the Virginia Department of Mines, Minerals and Energy (DMME) 
submitted numerous amendments to the Virginia program. The DMME stated 
that the purpose of the amendments is to address issues identified by 
OSM in a letter dated May 30, 1997, pursuant to 30 CFR 732.17(d) 
(Administrative Record Number VA-955). The DMME also stated that the 
proposed amendments are intended to be materially consistent with the 
corresponding Federal standards.
    The proposed amendment was published in the December 23, 1997, 
Federal Register (62 FR 67016), and in the same notice, OSM opened the 
public comment period and provided opportunity for a public hearing on 
the adequacy of the proposed amendment. The comment period closed on 
January 22, 1998. No one requested to speak at a public hearing, so no 
hearing was held.
    By electronic mail dated March 6, 1998 (Administrative Record 
Number VA-953), OSM provided the State with comments on the proposed 
amendments. The DMME responded to those comments by electronic mail 
dated March 20, 1998 (Administrative Record Number VA-954).

III. Director's Findings

    Set forth below, pursuant to SMCRA and the Federal regulations at 
30 CFR 732.15 and 732.17, are the Director's findings concerning the 
proposed amendment to the Virginia program. Only the substantive 
changes will be discussed below.

1. 4 VAC 25-130-700.5  Definition of ``Other Treatment Facilities''

    This definition has been amended to add ``neutralization'' as an 
example of chemical treatments, and to add ``precipitators'' as an 
example of mechanical structures. In addition, a new subsection (b) has 
been added to provide that `` other treatment facilities'' will have to 
comply with all applicable State and Federal water quality laws and 
regulations. The Director finds that with the proposed changes, the 
Virginia program definition of ``other treatment facilities'' is 
substantively identical to and therefore no less effective than the 
counterpart Federal definition at 30 CFR 701.5.
    4 VAC 25-130-700.5  Definition of ``Previously mined area.'' This 
definition has been revised to state that `` previously mined area'' 
means land affected by surface coal mining operations prior to August 
3, 1997, that has not been reclaimed to the standards of this Chapter. 
The Director finds that the proposed definition is substantively 
identical to and therefore no less effective than the counterpart 
Federal definition at 30 CFR 701.5.

2. 4 VAC 25-130-779.22  Land Use Information

    This provision has been deleted. The counterpart Federal regulation 
at 30 CFR 779.22 was deleted on May 27, 1994 (59 FR 27932). In that 
final rule notice, OSM consolidated the land use information 
requirements of sections 30 CFR 779.22 and 30 CFR 780.23 into final 30 
CFR 780.23. As discussed below in Finding 4, 4 VAC 25-130-780.23 
concerning reclamation plans; land use information is being amended by 
the State, and is substantively identical to and therefore is less 
effective than the counterpart Federal regulations at 30

[[Page 34281]]

CFR 780.23. Therefore, the Director finds that the proposed deletion 
does not render the Virginia program less effective and can be 
approved.

3. 4 VAC 25-130-779.25  Cross Sections, Maps, and Plans

    This provision is amended by deleting subsection (k) concerning 
slope measurements, and by revising the subsection's numbering system. 
The counterpart Federal provision at 30 CFR 779.25(a)(11) concerning 
slope measurements was deleted by May 27, 1994 (59 FR 27932). In that 
final rule notice, OSM explained that the provisions was deleted 
because it was redundant and provided no additional information beyond 
that already available to the regulatory authority under 30 CFR 
777.14(a) and OSM's technical information processing system (TIPS). The 
Director notes that the Virginia program contains an approved 
counterpart to 30 CFR 777.14(a). Therefore, the Director finds that as 
amended, the deletion does not render the Virginia program less 
effective than the Federal regulations.

4. 4 VAC 25-130-780.23  Reclamation Plan; Land Use Information

    The existing language of this subsection has been deleted and 
replaced in its entirety by new language. The Director finds that, as 
revised, the provision is substantively identical to and therefore no 
less effective than the counterpart Federal regulations at 30 CFR 
780.23.

5. 4 VAC 25-130-780.25  Reclamation Plan: Siltation Structures, 
Impoundments, Banks, Dams, and Embankments

    This provision is amended by adding new subsection 780.25(a)(2) 
concerning impoundments that meet Class B and C criteria for dams as 
specified in the U.S. Department of Agriculture, Soil Conservation 
Service Technical Release No. 60, ``Earth Dams and Reservoirs.'' The 
Director finds that new subsection 780.25(a)(2) is substantively 
identical to and therefore no less effective than the Federal 
regulations at 30 CFR 780.25(a)(2).
    The provision is also amended in various locations to add 
references to the new language at subsection 780.25(a)(2), and to 
revise the provision to be consistent with the counterpart Federal 
regulations. The Director finds the revised language at 780.25(a), 
(a)(3), (b) and (f) to be substantively identical to and therefore no 
less effective than the counterpart Federal regulations with one 
exception. The revised language at subsection 780.25(c)(3) does not 
specify that any engineering design standards that may be established 
by the State must be approved by the Director through the State program 
amendment approval process.
    However, Virginia already has approved engineering design standards 
at 4 VAC 25-130-816/817.49(a)(4)(ii). In addition, the DMME has 
informed OSM that any other design standard that DMME may accept in 
lieu of the engineering standard will first be approved through the 
state program amendment process (Administrative Record Number VA-954). 
Therefore, to the extent that any design standard that DMME may accept 
in lieu of the engineering standard will first be approved through the 
state program amendment process, the Director finds the proposed 
provision to be no less effective than the counterpart Federal 
regulations at 30 CFR 780.25.

6. 4 VAC 25-130-780.35  Disposal of Excess Spoil

    Subsection (b) is amended by adding the phrase ``except for the 
disposal of excess spoil on preexisting benches'' to the existing 
language. As amended, the requirements of subsection 780.35(b) do not 
apply to the disposal of excess spoil on preexisting benches. The 
Director finds that the amended language is substantively identical to 
and therefore no less effective than the counterpart language at 30 CFR 
780.35(b).

7. 4 VAC 25-130-783.25  Cross Sections, Maps and Plans (Underground)

    This provision is amended by deleting subsection (k) concerning 
slope measurements, and by revising the subsection's numbering system. 
The counterpart Federal provision at 30 CFR 783.25(a)(11) concerning 
slope measurements was deleted by May 27, 1994 (59 FR 27932). In that 
final rule notice, OSM explained that the provision was deleted because 
it was redundant and provided no additional information beyond that 
already available to the regulatory authority under 30 CFR 777.14(a) 
and OSM's technical information processing system (TIPS). The Director 
notes that the Virginia program contains an approved counterpart to 30 
CFR 777.14(a). Therefore, the Director finds that as amended, the 
deletion does not render the Virginia program less effective the than 
the federal regulations. As amended, the provision is substantively 
identical to and therefore no less effective than the counterpart 
Federal regulations at the 30 CFR 783.25.

8. 4 VAC 25-130-784.15  Reclamation Plan: Land Use Information 
(Underground)

    The existing language of this section has been deleted and replaced 
in its entirety by new language. The Director finds that as revised, 
the provision is substantively identical to and therefore no less 
effective than the counterpart Federal regulations at 30 CFR 784.15.

9. 4 VAC 25-130-784.16  Reclamation Plan: Siltation Structure, 
Impoundments, Banks, Dams, and Embankments (Underground)

    Subsections (a), (b), (c), and (f) are amended. Subsection (a) is 
amended by adding the requirements for detailed designed plans, and 
deleting and replacing the term sedimentation pond with the term 
siltation structure. The Director finds these changes render the 
Virginia language substantively identical to and therefore no less 
effective than the counterpart Federal provision at 30 CFR 784.16(a).
    Subsection (a)(2) is amended by adding language concerning 
impoundments meeting the Class B or C criteria in the U.S. Department 
of Agriculture, Soil Conservation Service Technical Release No. 60 
(210-VI-TR60, Oct. 1985), ``Earth Dams and Reservoirs,'' Technical 
Release No. 60 (TR-60). The Director finds the added language to be 
substantively identical to and therefore no less effective than the 
counterpart Federal requirements at 30 CFR 784.16(a)(2).
    Subsection (a)(3) is amended to properly reference the amended 
subsection (a)(2). Subsection (b) has been amended by deleting 
language. The Director finds that as amended, the State provisions are 
substantively identical to and therefore no less effective than the 
counterpart Federal regulations at 30 CFR 784.16(a)(3) and (b).
    New subsection (c)(3) is added to provide that the State may 
establish engineering design standards to ensure stability comparable 
to a 1.3 minimum static safety factor in lieu of engineering tests to 
establish compliance with the minimum static safety factor of 1.3 
specified at subsection 817.49(a)(4)(ii). The director finds this new 
provision to be substantively identical to and therefore no less 
effective than the counterpart Federal provision at 30 CFR 784.16(c)(3) 
with one exception. The Federal provision also provides that the 
authorization for States to establish engineering design standards in 
lieu of engineering tests to establish compliance with the minimum 
static safety factor of 1.3 must be

[[Page 34282]]

accomplished within the state program amendment approval process.
    However, Virginia already has approved engineering design standards 
at 4 VAC 25-130-816/817.49(a)(4)(ii). In addition, the DMME has 
informed OSM that any other design standard that DMME may accept in 
lieu of the engineering standard will first be approved through the 
state program amendment process (Administrative Record Number VA-954). 
Therefore, to the extent that any other design standard that DMME may 
accept in lieu of the engineering standard will first be approved 
through the state program amendment process, the Director finds the 
proposed provision to be no less effective than to the counterpart 
Federal regulations at 30 CFR 784.16(c)(3).
    Subsection 784.16(f) has been amended by deleting reference to 
structures 20 feet or higher or that impound more than 20 acre feet. In 
its place, language has been added concerning structures that meet 
Class B or C criteria for dams in TR-60 or meets the size or criteria 
of 30 CFR 77.216(a). The Director finds the amended language to be 
substantively identical to and therefore no less effective than the 
counterpart Federal regulations at 30 CFR 784.16(f).

10. 4 VAC 25-130-784.23  Operation Plan; Maps and Plans

    Subsection (c) is amended by adding a reference to subsection 
784.23(b)(4) in addition to the references to (b)(5), (6), (10), and 
(11). The Director finds the added language to be substantively 
identical to and therefore no less effective than the Federal 
counterpart provision at 30 CFR 784.23(c).

11. 4 VAC 25-130-800.40  Requirements for Release of Performance Bond

    New subsection (a)(3) is added to provide that the application for 
bond release shall include a notarized statement which certifies that 
all applicable reclamation activities have been accomplished in 
accordance with the requirements of the Act, the regulatory program, 
and the approved reclamation plan. Such certification shall be 
submitted for each application or phase of bond release. The Director 
finds the added language to be identical to and therefore no less 
effective than the counterpart Federal language at 30 CFR 800.40(a)(3).

12. 4 VAC 25-130-816/817.46  Hydrologic Balance; Siltation Structures

    Subsections (a)(2) is amended by deleting the word ``permittee'' 
and replacing it with the word ``operator.'' The Director finds that as 
amended, subsections (a)(2) are identical to and therefore no less 
effective than the counterpart Federal regulations at 30 CFR 816/
817.46(a)(2).
    Subsections (b)(3) have been amended by deleting the last sentence 
that provided that the certification of completion of the siltation 
structures shall be provided to the division within 30 days after 
completion of construction of the structure. The Director finds that as 
amended, subsections (b)(3) are substantively identical to and 
therefore no less effective than the Federal regulations at 30 CFR 816/
817.46(a)(3).
    Subsection (b)(5) have been amended by deleting the words ``growing 
seasons'' and adding in their place the word ``years.'' The Director 
finds that as amended, subsections (b)(5) are identical to and 
therefore no less effective than the Federal regulations at 30 CFR 816/
817.46(b)(5).
    Subsections (c)(2) have been amended to delete most of the existing 
language concerning spillways. As amended, subsections (c)(2) provide 
that a sedimentation pond shall include either a combination of 
principal and emergency spillways or a single spillway configured as 
specified in 4 VAC 25-130-816.49(a)(9).
    OSM revised the performance standards for impoundments on October 
20, 1994 (59 FR 53022). For clarity, OSM moved the spillway design 
requirements of 30 CFR 816./817.46(c)(2)(i) through (iii) to sections 
816/817.49(a)(9) and revised 816/817.46(c)(2) to reference sections 
816/817.49(a)(9). The Director finds that as amended, Virginia 
subsection (c)(2) is substantively identical to and therefore no less 
effective than the revised Federal regulations at 30 CFR 816/
817.46(c)(2) with one exception. 4 VAC 25-130-817.46(c)(2) concerning 
spillways contains an erroneous sentence fragment referencing Paragraph 
(c)(2)(i), a paragraph that does not exist.
    In response to OSM's comment about the sentence fragment, the DMME 
stated that it will delete those additional words (Administrative 
Record Number VA-954). Therefore, to the extent that the DMME will 
delete the erroneous sentence fragment that references Paragraph 
(c)(2)(i), the Director finds the provisions to be no less effective 
than the counterpart Federal regulations at 30 CFR 816/817.46(c)(2).

13. 4 VAC 25-130-816/817.49  Impoundments

    New subsections (a)(1) provide that impoundments meeting the Class 
B or C criteria in the U.S. Department of Agriculture, Soil 
Conservation Service Technical Release No. 60 (210-VI-TR60, Oct. 1985), 
``Earth Dams and Reservoirs,'' Technical Release No. 60 (TR-60) shall 
comply with ``Minimum Emergency Spillway Hydrologic Criteria'' table in 
TR-60 and the requirements of this section. The Director finds the 
added language to be substantively identical and therefore no less 
effective than tot he counterpart Federal requirements at 30 CFR 816/
817.49(a)(1).
    Subsections (a)(4)(i) concerning stability have been amended to 
delete the words ``or located where failure would be expected to cause 
loss of life or serious property damage.'' In addition, the word 
``state'' has been added between the words ``steady'' and `seepage.'' 
OSM amended the counterpart Federal regulations on October 20, 1994 (59 
FR 53022). In that amendment, OSM removed the phrase ``or located where 
failure would be expected to cause loss of life or serious property 
damage'' because it is redundant with the cited TR-60 reference. The 
Director finds that as amended, subsections (a)(4)(i) are identical to 
and therefore no less effective than the counterpart Federal 
regulations at 30 CFR 816/817.49(a)(4)(i).
    Subsections (a)(4)(ii) are amended by deleting the words ``meeting 
the size or other criteria of 30 CFR 772.216(a)'' and adding in their 
place the words ``included in Paragraph (a)(4)(i). In addition, and in 
the same sentence, the words ``and located where failure would not be 
expected to cause loss of life or serious property damage'' have been 
deleted. OSM made similar changes to its counterpart regulations at 30 
CFR 816/817.49(a)(4)(ii) to help clarify which safety factors are 
related to specific types of impoundment classification. The Director 
finds that amended language in subsections (a)(4)(ii) to be identical 
to and therefore no less effective than the amended language in the 
counterpart Federal regulations at Sec. 816/817.49(a)(4)(ii).
    Subsections (a)(5) are amended by adding a new last sentence that 
provides that ``[i]mpoundments meeting the Class B or C criteria for 
dams in TR-60 shall comply with the freeboard hydrograph criteria in 
the ``Minimum Emergency Spillway Hydrologic Criteria'' table in TR-60. 
This change renders subsections (a)(5) compatible with TR-60 standards 
added to subsections (a)(1). The Director finds the amended language in 
subsections (a)(5) to be substantively identical to and therefore no 
less effective than the counterpart Federal regulations at 30 CFR 816/
817.49(a)(5).

[[Page 34283]]

    Subsections (a)(6)(i) are amended by adding a reference to Class B 
or C criteria for dams in TR-60. The Director finds the amended 
language in subsections (a)(6) to be substantively identical to and 
therefore no less effective than the counterpart Federal language at 30 
CFR 816/817.49(a)(6).
    Subsections (a)(9)(ii)(A) have been amended to provide that for 
impoundments meeting the Class B or C criteria for dams in TR-60, the 
impoundments must meet the emergency spillway hydrograph criteria in 
the ``Minimum Emergency Spillway Hydrologic Criteria'' table in TR-60 
or greater as specified by the Division. The Director finds the amended 
language in subsections (a)(9)(ii)(A) to be substantively identical to 
and therefore no less effective than the counterpart Federal language 
at 30 CFR 816/817.49(a)(9)(ii)(A).
    Subsections (a)(9)(ii)(B) have been amended by adding the words 
``or exceeding'' between the word ``meeting'' and the words ``the 
size.'' The Director finds the amended language to be substantively 
identical to and therefore no less effective than the counterpart 
Federal language at 30 CFR 816/817.49(a)(9)(ii)(B).
    Subsections (a)(9)(ii)(C) have been amended by deleting the words 
``meeting the size or other criteria of 30 CFR 77.216(a)'' and adding 
in their place the words ``included in Paragraph (a)(9)(ii) (A) and 
(B). The Director finds the amendment to subsections (a)(9)(ii)(C) to 
be substantively identical to and therefore no less effective than the 
Federal regulations at 30 CFR 816/817.49(a)(9)(ii)(C).
    Subsections (a)(11) concerning examinations has been amended to 
provide that impoundments meeting the Class B or C criteria for dams in 
TR-60, or the size or other criteria of 30 CFR 77.216(a) must be 
examined in accordance with Sec. 77.216(a). In addition, subsections 
(a)(11) have been amended to provide that impoundments not meeting such 
criteria shall be examined at least quarterly. Also, subsections 
(a)(11) have been amended to provide that a qualified person designated 
by the operator shall examine impoundments for appearance of structural 
weakness and other hazardous conditions. Finally, the last sentence 
concerning a written record has been deleted. The Director finds that 
as amended, subsections (a)(11) are substantively identical to and 
therefore no less effective than the counterpart Federal regulations at 
30 CFR 816/817.49(a)(12).
    Subsections (c)(2)(i) have been amended by deleting the words 
``[i]n the case of an impoundment meeting'' and adding in their place 
the words [i]mpoundments meeting the SCS Class B or C criteria for dams 
in TR-060 or.'' In addition, the words ``it is'' are deleted and 
replaced by the words ``shall be.'' The Director finds that as amended, 
subsections (c)(2)(i) are substantively identical to and therefore no 
less effective than the counterpart Federal regulations at 30 CFR 816/
817.49(c)(2)(i).
    Subsections (c)(2)(ii) have been amended to provide that 
impoundments not included in Paragraphs (c)(2)(i) of these sections 
shall be designed to control the precipitation of a 100-year 6-hour 
event, or greater event as specified by the division. The Director 
finds that as amended, subsections (c)(2)(ii) are substantively 
identical to and therefore no less effective than the counterpart 
Federal regulations at 30 CFR 816/817.49(c)(2)(ii).

14. 4 VAC 25-130-816/817.74  Disposal of Excess Spoil; Preexisting 
Benches

    Subsections (a) through (g) have been amended to mirror the 
counterpart Federal regulations at 30 CFR 816/817.74. On December 17, 
1991 (56 FR 65612) OSM revised the Federal regulations at 30 CFR 816/
817.74 concerning the disposal of excess spoil on preexisting benches 
to conform those requirements with the backfilling and grading 
requirements of Secs. 816/817.102. The Director finds that, as amended, 
4 VAC 25-130-816/817.74 are substantively identical to and therefore no 
less effective than the Federal regulations at 30 CFR 816/817.74.

15. 4 VAC 25-130-816/817.81  Coal Mine Waste; General Requirements

    Subsections (a) have been amended to provide that all coal mine 
waste disposed of in an area other the mine workings or excavations 
shall be placed in new or existing disposal areas within a permit area, 
which are approved by the division for this purpose. Coal mine waste 
shall be hauled or conveyed and placed for final placement in a 
controlled manner to comply with the identified provisions. The Federal 
Regulations at 30 CFR 816/817.81(a) were revised on December 17, 1991 
(56 FR 65612) to provide that coal mine waste be ``hauled or conveyed'' 
instead of just requiring that it be ``placed.'' Additional language 
was also added to allow the disposal of coal mine waste in mine 
workings or excavations and to specify that the waste be placed in a 
controlled manner to promote fill stability and inhibit combustibility. 
The Director finds that as amended, 4 VAC 25-130-816/817.81(a) is 
substantively identical to and therefore no less effective than the 
counterpart Federal regulations at 30 CFR 816/817.81(a). In addition, 
subsections (c)(3) have been deleted. This deleted subsection provided 
for specific numbers for thickness and compaction. There was no Federal 
counterpart to subsection (c)(3) and the deletion does not render the 
Virginia program less effective.

16. 4 VAC 25-130-816/817.89  Disposal of Noncoal Mine Wastes

    These sections have been amended by deleting subsections (d). On 
December 17, 1991 (56 FR 65612) the Federal regulations at 30 CFR 816/
817.89 were revised by deleting paragraphs (d), which required that any 
noncoal waste defined as hazardous under section 3001 of the Resource 
Conservation and Recovery Act (RCRA) be handled in accordance with 
subtitle C and any implementing regulations. This provision could have 
been interpreted as requiring OSM and State regulatory authorities to 
assume permitting, inspection and enforcement responsibilities that 
Congress assigned to the Environmental Protection Agency (EPA). 
Therefore, the Director finds that the deletion of subsections 4 VAC 
25-130-816/817.89(d) does not render the Virginia program less 
effective than the counterpart Federal regulations at 30 CFR 816/
817.89.

17. 4 VAC 25-130-816.104  Backfilling and Grading; Thin Overburden

    The existing introductory paragraph is deleted and replaced by new 
language. On December 17, 1991 (56 FR 65612) OSM amended the Federal 
regulations at 30 CFR 816.104 concerning backfilling and grading, thin 
overburden. The Director finds that as amended, 4 VAC 25-130-816.104 is 
substantively identical to and therefore no less effective than the 
counterpart Federal regulations at 30 CFR 816.104.

18. 4 VAC 25-130-816.105  Backfilling and Grading; Thick Overburden

    The existing introductory paragraph is deleted and replaced by new 
language. On December 17, 1991 (56 FR 65612) OSM amended the Federal 
regulations at 30 CFR 816.105 concerning backfilling and grading, thick 
overburden. The Director finds that as amended, 4 VAC 25-130-816.105 is 
substantively identical to and therefore no less effective that the 
counterpart Federal regulations at 30 CFR 816/105.

[[Page 34284]]

19. 4 VAC 25-130-823.11  Applicability

    Subsection (a) is amended by deleting the existing language and 
adding new language in its place. As amended, subsection (a) provides 
that the requirements of this Part shall not apply to coal preparation 
plants, support facilities, and roads of surface and underground mines 
that are actively used over extended periods of time and where such 
uses affect a minimal amount of land. Such uses shall meet the 
requirements of Part 816 for surface mining activities and of Part 817 
for underground mining activities.
    At the present time, the Federal regulation at 30 CFR 823.11(a) is 
suspended insofar as it relates to surface, as opposed underground, 
mining (February 21, 1985; 50 FR 7278). Therefore, Virginia's proposal 
to adopt 30 CFR 823.11(a), as applied to surface mining, is 
inconsistent with SMCRA, as interpreted by court decisions.
    OSM informed DMME that this amendment copies language in the 
Federal regulations that has been suspended insofar as the language 
applies to surface mines. In response, the DMME stated that the 
proposed changes to 4 VAC 25-130-823.11(a) are hereby withdrawn 
(Administrative Record Number VA-954).

20. 4 VAC 25-130-840.11  Inspections by the Divisions

    Subsection (f)(2) has been amended to provide that reclamation has 
been completed to the level established in 4 VAC 25-130-800.40 Phase 
II.
    Subsection (g)(4) has been amended to delete the word ``or'' and 
add in its place the word ``and.'' As amended, subsection (g)(4) 
applies to a site that is, or was, permitted and bonded. Subsection 
(g)(4) is further amended at (g)(4)(i) to delete language pertaining to 
permit revocation proceedings, and to add the word ``either'' so that 
the provision applies to a permit that has either expired or been 
revoked. Subsection (g)(4)(ii) has been amended to delete the word 
``the'' and replace that word with the words ``any available.'' As 
amended, the provision applies to any available performance bond.
    Subsection (h) has been amended by deleting most of the existing 
language and replacing that language with new language. In addition, 
new language has been added concerning selecting an alternate 
inspection frequency, and concerning public notice.
    The Federal regulations at 30 CFR 840.11(g) and (h) were amended on 
November 28, 1994 (59 FR 60876) to change the minimum inspection 
frequency for surface coal mining and reclamation operations that have 
been abandoned without completion of reclamation or abatement of 
violations. The change enables regulatory authorities to eliminate 
ineffective inspections to redirect resources to minesites where 
inspection and enforcement will achieve intended results. Before an 
abandoned site can qualify for a change in inspection frequency under 
this rule, the regulatory authority must make a written finding that a 
site is abandoned and that the change in inspection frequency is 
appropriate based on specified environmental and public health and 
safety criteria.
    The Director finds the amendments to 4 VAC 25-130-840.11 to be 
substantively identical to and therefore no less effective than the 
counterpart Federal regulations at 30 CFR 840.11 with one exception. 
The amendments to subsection 4 VAC 25-130-840.11(f)(2) differ from the 
counterpart Federal regulations at 30 CFR 840.11. The Federal provision 
provides that an inactive surface coal mining and reclamation operation 
is one for which reclamation Phase II as defined at 30 CFR 800.40 has 
been completed and the liability of the permittee has been reduced by 
the State regulatory authority in accordance with the State program. 
The counterpart State provision, however, provides that an inactive 
surface coal mining and reclamation operation is one for which 
reclamation has been completed to the level established in 4 VAC 25-
130-800.40 as Phase II. That is, the Virginia provision makes reference 
to completion of the reclamation that is equivalent to Phase II, rather 
than Phase II bond release. In its submittal of this amendment, 
Virginia stated that the change is necessary to make the rule 
applicable to the operations using Virginia's approved alternate 
bonding system, which does not include provision for a bond release at 
the completion of Phase II type reclamation. The Federal regulations at 
30 CFR 840.11 (applicable to State regulatory authorities) and 842.11 
(applicable to State regulatory authorities) and 842.11 (applicable to 
Federal inspections and monitoring) were amended on August 16, 1982 (57 
FR 35620). Discussion of 30 CFR 840.11(f) (what is an inactive 
operation under a State program) was cross-referenced to the discussion 
of 30 CFR 842.11(c) (what is an inactive operation under a Federal 
program). 57 FR 35621. At the discussion to 30 CFR 
842.11(c)(2)(iii)(B), OSM agreed with commenters that ``the 
determination of a mine's status as active or inactive should be based 
solely on the completion of Reclamation Phase II.'' Accordingly, OSM 
modified 30 CFR 842.11(c)(2)(iii)(B) to reflect this intention. 
Therefore, Virginia defining an inactive mine as one for which 
reclamation has been completed to the level established in 4 VAC 25-
130-800.40 as Phase II, is consistent with OSM's intentions. The 
Director finds 4 VAC 25-130-840.11(f)(2) to be no less effective than 
the Federal regulations.

21. 4 VAC 25-130-843.12  Service of Notices of Violation, Cessation 
Orders, and Show Cause Orders

    Subsection (a)(2) is amended by adding new language to the end of 
the first sentence. The added language provides that service may also 
be made by any means consistent with the Rules of the Supreme Court of 
Virginia governing service of a summons and complaint. Virginia has 
also added the word ``certified'' immediately before the word ``mail.'' 
This latter change clarifies that the reference is to certified mail. 
In its submittal of this amendment, Virginia stated that the added 
reference to the Rules of the Supreme Court of Virginia is necessary 
since the State agency must follow State administrative procedures for 
service of documents. The Federal regulation at 30 CFR 840.13(c) states 
that the procedural requirements for enforcement provisions ``shall be 
the same as or similar to those provided in'' 518 and 521 of SMCRA and 
consistent with the applicable Federal regulations. Federal enforcement 
under 30 CFR 843.14(a) allows service that is consistent with the 
Federal Rules of Civil Procedure. The Federal regulations were amended 
on June 20, 1991 (56 FR 28442), to allow for increased flexibility. 
Virginia is also increasing its flexibility by following its 
counterpart to the Federal Rules of Civil Procedure. Therefore, the 
Director finds that the amended language is not inconsistent with the 
Federal regulations.

22. 4 VAC 25-130-845.17  Procedures for Assessment of Civil Penalties

    Section (b) is amended by adding a reference to the Rules of the 
Supreme Court of Virginia governing service of a summons and complaint. 
Subsection (b)(1) is amended replacing the word ``mail'' with the word 
``documents.'' New subsection (b)(2) is added to provide that failure 
of the Division to serve any proposed assessment within 30 days shall 
not be grounds for dismissal of all or part of such assessment unless 
the person against whom the proposed penalty has been

[[Page 34285]]

assessed: (i) proves actual prejudice as a result of the delay; (ii) 
makes a timely objection to the day. An objection shall be timely only 
if made in the normal course of administrative review.
    The Director finds that the amended language is substantively 
identical to and therefore no less effective than the counterpart 
Federal language at 30 CFR 845.17 with one exception. The amended 
language at subsection (b) concerning reference to the Rules of the 
Supreme Court of Virginia governing service of a summons and complaint 
differs from the Federal regulations. As previously stated, the Federal 
rule at 30 CFR 840.13(c) states that the procedural requirements for 
enforcement provisions ``shall be the same as or similar to those 
provided in'' 518 and 521 of SMCRA and consistent with the applicable 
Federal regulations. Federal enforcement under 30 CFR 845.17(b) allows 
service that is consistent with the Federal Rules of Civil Procedure. 
The Federal regulations were amended on June 20, 1991 (56 FR 28442), to 
allow for increased flexibility. Virginia is also increasing its 
flexibility by following its counterpart to the Federal Rules of Civil 
Procedure. Therefore, the Director finds that the amended language is 
not inconsistent with the Federal regulations.

23. 4 VAC 25-130-845.18  Procedures for Assessment Conference

    Subsection (a) is amended to change the time limit for requests for 
an assessment conference from 15 days to 30 days. Subsection (b)(1) is 
amended to provide that the assessment conference shall be held within 
60 days from the date the conference request is received or the end of 
the abatement period, whichever is later. Prior to this amendment, the 
conference was to be held within 60 days from the date of issuance of 
the proposed assessment or the end of the abatement period, whichever 
is later. New language is added to subsection (b)(1) to provide that a 
failure by the Division to hold such conference within 60 days shall 
not be grounds for dismissal of all or part of an assessment unless the 
person against whom the proposed penalty has been assessed proves 
actual prejudice as a result of the delay.
    Subsection (b)(2) has been amended to delete the words ``and the 
Courthouse of the County is which [the mine] is located'' and replace 
that language with ``or field office located closest to [the mine].'' 
In effect notices of assessment conferences will be posted at the 
Division's Big Stone Gap office, and the field office located closest 
to the mine. Subsection (b)(3) is amended by deleting the words 
``affirm, raise, lower, or vacate the penalty,'' and replace those 
words with the word ``either'' and the addition of new subsections 
(b)(3)(i) and (ii). The two new subsections provide that within 30 days 
after the conference is held, the conference officer shall either: (i) 
Settle the issue, in which case a settlement agreement shall be 
prepared and signed by the Division and by the person assessed; or (ii) 
affirm, raise, lower, or vacate the penalty.
    New subsection (d) is added to provide that at (d)(1) if a 
settlement agreement is entered into, the person assessed will be 
deemed to have waived all rights to further review of the violation or 
penalty in question, except as otherwise expressly provided for in the 
settlement agreement. The settlement agreement shall contain a clause 
to this effect. New (d)(2) provides that if full payment of the amount 
specified in the settlement agreement is not received by the Division 
within 30 days after the date of signing, the Division may enforce the 
agreement or rescind it and proceed according to paragraph (b)(3)(ii) 
within 30 days from the date of the rescission.
    The Federal regulations at 30 CFR 845.18 were revised on March 8, 
1991 (56 FR 10060). The revision extended by approximately 30 days the 
amount of time within which OSM may complete the necessary 
administrative actions to hold an assessment conference and by 15 days 
the amount of time within which a person charged with a violation may 
appeal an assessment conference officer's decision to the Office of 
Hearings and Appeals. The director finds that as amended, 4 VAC 25-130-
845.18 is substantively identical to and consistent with the 
counterpart Federal regulations at 30 CFR 845.18.

24. 4 VAC 25-130-845.19  Request for Hearing

    Subsection (a) is amended by changing from 15 days to 30 days the 
number of days that a person charged with a violation may contest the 
proposed penalty or the fact of the violation. On March 8, 1991 (56 FR 
10060) the Federal regulations at 30 CFR 845.19 were similarly amended. 
The Director finds that as amended, the State provision is 
substantively identical to and consistent with the counterpart Federal 
regulations.

25. 4VAC 25-130-846.17  Assessment of an Individual Civil Penalty

    Subsection (b)(3) is deleted and replaced by a new subsection (c). 
As amended, service shall be performed on the individual to be assessed 
an individual civil penalty, by certified mail, or by any alternative 
means consistent with the rules of the Supreme Court of Virginia 
governing service of a summons and complaint. Service shall be complete 
upon tender of the notice of proposed assessment and included 
information or of the certified mail and shall not be deemed incomplete 
because of refusal to accept. On June 20, 1991 (56 FR 28442) the 
Federal regulations at 30 CFR 846.16(c) concerning service were 
amended. As amended, the Virginia provision is substantively identical 
to and therefore no less effective than the counterpart Federal 
provision with one exception. The Federal provision provides that 
service can be accomplished by any means consistent with the rules 
governing service of a summons and complaint under rule 4 of the 
Federal Rules of Civil Procedure. The revised Virginia provision that 
service can be accomplished by any means consistent with the Rules of 
the Supreme Court of Virginia governing service of a summons and 
complaint. Federal enforcement under 30 CFR 846.17(c) allows service 
that is consistent with the Federal Rules of Civil Procedure. The 
Federal regulations were amended on June 20, 1991 (56 FR 28442), to 
allow for increased flexibility. Virginia is also increasing its 
flexibility by following its counterpart to the Federal Rules of Civil 
Procedure. therefore, the Director finds that the amended language is 
not inconsistent with the Federal regulation.

IV. Summary and Disposition of Comments

Federal Agency Comments

    Pursuant to section 503(b) of SMCRA and 30 CFR 732.17(h)(11)(I), 
comments were solicited from various interested Federal agencies. The 
U.S. Fish and Wildlife Service (USFWS) responded and stated that it 
appears that no impacts to Federally listed or proposed species or 
critical habitat will occur and, therefore, USFWS had no comments on 
the proposed amendments. The U.S. Department of Agriculture, Natural 
Resources Conservation Service (NRCS) responded and stated that the 
proposed amendments seem to conform more closely to presently practiced 
reclamation goals and standards, and better suits their intended use. 
Therefore, the NRCS stated that the amendments should be accepted. The 
U.S. Department of Labor, Mine Safety and Health Administration (MSHA) 
responded and stated that the proposed amendment does not contain any

[[Page 34286]]

information that would be conflicting to MSHA regulations.

Public Comments

    There were no public comments submitted.

Environmental Protection Agency (EPA)

    Under 30 CFR 732.17(h)(11)(ii), the Director is required to obtain 
the written concurrence of the Administrator of the EPA with respect to 
any provisions of a State program amendment that relate to air or water 
quality standards promulgated under the authority of the Clean Water 
Act (33 U.S.C. 1251 et seq.) or the Clean Air Act (42 U.S.C. 7401 et 
seq.). The Director has determined that this amendment contains no 
provisions in these categories and that EPA's concurrence is not 
required.
    Pursuant to 732.17(h)(11)(I), OSM solicited comments on the 
proposed amendment from EPA. The EPA did not provide any comments.

V. Director's Decision

    Based on the findings above, and except as noted below, the 
Director is approving Virginia's amendment as submitted by Virginia on 
December 1, 1997, and clarified by letter dated March 6, 1998.
    4 VAC 25-130-780.25(c)(3) is approved to the extent that any other 
design standard that DMME may accept in lieu of the engineering 
standards will be first be approved through the state program amendment 
process.
    4 VAC 25-130-784.16(c)(3) is approved to the extent that any other 
design standard that DMME may accept in lieu of the engineering 
standard will first be approved through the state program amendment 
process.
    4 VAC 25-130-817.46(c)(2) is approved to the extent that the DMME 
will delete the erroneous sentence fragment that references Paragraph 
(c)(2)(i).
    The Director notes that the amendments to 4 VAC 25-130-823.11(a) 
were withdrawn by the DMME.
    The Federal regulations at 30 CFR Part 946 codifying decisions 
concerning the Virginia program are being amended to implement this 
decision. This final rule is being made effective immediately to 
expedite the State program amendment process and to encourage States to 
bring their programs into conformity with the Federal standards without 
undue delay. Consistency of State and Federal standards is required by 
SMCRA.

VI. Procedural Determinations

Executive Order 12866

    This rule is exempted from review by the Office of Management and 
Budget (OMB) under Executive Order 12866 (Regulatory Planning and 
Review).

Executive Order 12988

    The Department of the Interior has conducted the reviews required 
by section 3 of Executive Order 12988 (Civil Justice Reform) and has 
determined that, to the extent allowed by law, this rule meets the 
applicable standards of subsections (a) and (b) of that section. 
However, these standards are not applicable to the actual language of 
State regulatory programs and program amendments since each such 
program is drafted and promulgated by a specific State, not by OSM. 
Under section 503 and 505 of SMCRA (30 U.S.C. 1253 and 1255) and 30 CFR 
730.11, 732.15 and 732.17(h)(10), decisions on proposed State 
regulatory programs and program amendments submitted by the States must 
be based solely on a determination of whether the submittal is 
consistent with SMCRA and its implementing Federal regulations and 
whether the other requirements of 30 CFR Parts 730, 731, and 732 have 
been met.

National Environmental Policy Act

    No environmental impact statement is required for this rule since 
section 702(d) of SMCRA [30 U.S.C. 1292(d)] provides that agency 
decisions on proposed State regulatory program provisions do not 
constitute major Federal actions within the meaning of section 
102(2)(C) of the National Environmental Policy Act (42 U.S.C. 
4332(2)(C)).

Paperwork Reduction Act

     This rule does not contain information collection requirements 
that require approval by OMB under the Paperwork Reduction Act (44 
U.S.C. 3507 et seq.).

Regulatory Flexibility Act

    The Department of the Interior has determined that this rule will 
not have a significant economic impact on a substantial number of small 
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) 
The State submittal which is the subject of this rule is based upon 
counterpart Federal regulations for which an economic analysis was 
prepared and certification made that such regulations would not have a 
significant economic effect upon a substantial number of small 
entities. Accordingly, this rule will ensure that existing requirements 
previously promulgated by OSM will be implemented by the State. In 
making the determination as to whether this rule would have a 
significant economic impact, the Department relied upon the data and 
assumptions for the counterpart Federal regulations.

Unfunded Mandates

    This rule will not impose a cost of $100 million or more in any 
given year on any governmental entity or the private sector.

List of Subjects in 30 CFR Part 946

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: May 29, 1998.
Allen D. Klein,
Regional Director, Appalachian Regional Coordinating Center.

    For the reasons set out in the preamble, Title 30, Chapter VII, 
Subchapter T of the Code of Federal Regulations is amended as set forth 
below:

PART 946--VIRGINIA

    1. The authority citation for Part 946 continues to read as 
follows:

    Authority: 30 U.S.C. 1201 et seq.

    2. Section 946.15 is amended in the table by adding a new entry in 
chronological order by ``Date of Final Publication'' to read as 
follows:


Sec. 946.15  Approval of Virginia regulatory program amendments.

* * * * *

[[Page 34287]]



----------------------------------------------------------------------------------------------------------------
 Original amendment submission                                                                                  
             date                  Date of final publication                  Citation/description              
----------------------------------------------------------------------------------------------------------------
                                                                                                                
*                  *                  *                  *                  *                  *                
December 1, 1997..............  June 24, 1998.................  VA Code Sections 701.5; 779.22 [deletion],      
                                                                 .25(k) [deletion]; 780.23, .25(a),             
                                                                 (a)(2)(a)(3), (b), (c)(3), (f), 35(b);         
                                                                 783.25(k) [deletion]; 784.15, .16(a), (a)(2),  
                                                                 (a)(3), (b), (c)(3), (f), .23(c); 800.40(a)(3);
                                                                 816.46(a)(2), (b)(3), (b)(5), (c)(2),          
                                                                 .49(a)(1), (a)(4)(i) & (ii), (5), (6), (9),    
                                                                 (11), (c)(2), .74(a) through (g), .81(a),      
                                                                 (c)(3) [deletion], .89(d) [deletion], .104,    
                                                                 .105; 817.46(a)(2), (b)(3), (b)(5), (c)(2)     
                                                                 .49(a)(1), (a)(4)(i) & (ii), (5), (6), (9),    
                                                                 (11), (c)(2), .74(a) through (g), .81(a),      
                                                                 (c)(3) [deletion], .89(d) [deletion];          
                                                                 840.11(f)(2) & (g)(4), (h); 843.14(a)(2);      
                                                                 845.17(b) through (b)(2)(ii), .18(a), (b)      
                                                                 through (b)(3)(ii), (d)(1) & (2), .19(a) and   
                                                                 846.17(b)(3) [deletion] and (c).               
----------------------------------------------------------------------------------------------------------------

[FR Doc. 98-16812 Filed 6-23-98; 8:45 am]
BILLING CODE 4310-05-M