34280 Federal Register / Vol. 63, No. 121 /Wednesday, June 24, 1998 /Rules and Regulations

Dated: June 16, 1998.

Kathy Karpan,

Director Office of Surface Mining.

For the reasons set out in the

preamble, 30 CFR Part 925 is amended

as set forth below:

PART 925—MISSOURI

1. The authority citation for Part 925

continues to read as follows:

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

2. Section 925.25 is amended in the

table by adding a new entry in

chronological order by ‘‘Date of final

publication’’ to read as follows:

§ 925.25 Approval of Missouri abandoned

mine land reclamation plan amendments.

* * * * *

Original amendment submission date

Date of final

publication Citation/description

* * * * * * *

March 31, 1998 June 24, 1998 .. AMLR plan sections 884.13(c)(6) and (d)(3); Emergency response reclamation program.

[FR Doc. 98–16811 Filed 6–23–98; 8:45 am]

BILLING CODE 4310–05–M

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.

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
Federal Register / Vol. 63, No. 121 /Wednesday, June 24, 1998 /Rules and Regulations 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
34282 Federal Register / Vol. 63, No. 121 /Wednesday, June 24, 1998 /Rules and Regulations

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 § 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).
Federal Register / Vol. 63, No. 121 /Wednesday, June 24, 1998 /Rules and Regulations 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 § 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 §§ 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.
34284 Federal Register / Vol. 63, No. 121 /Wednesday, June 24, 1998 /Rules and Regulations

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
Federal Register / Vol. 63, No. 121 /Wednesday, June 24, 1998 /Rules and Regulations 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
34286 Federal Register / Vol. 63, No. 121 /Wednesday, June 24, 1998 /Rules and Regulations

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:

§ 946.15 Approval of Virginia regulatory

program amendments.

* * * * *
Federal Register / Vol. 63, No. 121 /Wednesday, June 24, 1998 /Rules and Regulations 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

DEPARTMENT OF TRANSPORTATION

Coast Guard

33 CFR Part 165

[CGD01–98–058]

RIN 2115–AA97

Safety Zone: Burlington Independence

Day Fireworks, Burlington Bay, VT

AGENCY: Coast Guard, DOT.

ACTION: Temporary final rule.

SUMMARY: The Coast Guard is

establishing a temporary safety zone for

the Burlington Independence Day

fireworks program located on

Burlington Bay, Lake Champlain,

Vermont. The safety zone is in effect

from 9 p.m. until 10:30 p.m. on Friday,

July 3, 1998, with a rain date of

Saturday, July 11, 1998, at the same

time and place. This action is necessary

to provide for the safety of life on

navigable waters during the event. This

action is intended to restrict vessel

traffic in a portion of Burlington Bay on

Lake Champlain, Vermont.

DATES: This rule is effective from 9 p.m.

until 10:30 p.m. on Friday, July 3, 1998,

with a rain date of Saturday, July 11,

1998, at the same time and place.

ADDRESSES: Documents as indicated in

this preamble are available for

inspection or copying at Coast Guard

Activities New York, 212 Coast Guard

Drive, room 205, Staten Island, New

York 10305, between 8 a.m. and 3 p.m.,

Monday through Friday, except Federal

holidays.

FOR FURTHER INFORMATION CONTACT:

Lieutenant (Junior Grade) A. Kenneally,

Waterways Oversight Branch, Coast

Guard Activities New York, at (718)

354–4195.

SUPPLEMENTARY INFORMATION:

Regulatory History

Pursuant to 5 U.S.C. 553, a notice of

proposed rulemaking (NPRM) was not

published for this regulation. Good

cause exists for not publishing an NPRM

and for making this regulation effective

less than 30 days after Federal Register

publication. Due to the date this

updated application was received, there

was insufficient time to draft and

publish an NPRM. Any delay

encountered in this regulation’s

effective date would be contrary to

public interest since immediate action is

needed to close a portion of the

waterway and protect the maritime

public from the hazards associated with

this fireworks display.

Background and Purpose

On May 18, 1998, the City of

Burlington, VT submitted an

Application for Approval of Marine

Event to hold a fireworks program on

the waters of Burlington Bay on Lake

Champlain, Vermont. The sponsor

notified the Coast Guard they are using

larger fireworks shells than the annual

regulation in 33 CFR 165.166 was

written for. This regulation increases the

radius of the safety zone from 250 yards

to 360 yards. This regulation establishes

a safety zone in all waters of Burlington

Bay within a 360 yard radius of the

fireworks barge located in approximate

position 44°28′30.5′′ N 073°13′32′′ W

(NAD 1983), beside the Burlington Bay

breakwater. The safety zone is in effect

from 9 p.m until 10:30 p.m. Friday, July

3, 1998, with a rain date of Saturday,

July 11, 1998, at the same time and

place. The safety zone prevents vessels

from transitting this portion of

Burlington Bay, Lake Champlain,

Vermont and is needed to protect

boaters from the hazards associated with

fireworks launched from a barge in the

area. Public notification will be made

prior to the event via the Local Notice

to Mariners.

Regulations for a permanent

Regulated Navigation Area have been

published for this event in 33 CFR

165.166. If the annual regulation is

enforced for this event the safety zone

area will not be large enough to provide

for the safety of life on navigable waters

due to the larger fireworks shells being

used. This final rule will close a portion

of Burlington Bay for one hour less than

the current regulations in 33 CFR

165.166.

Regulatory Evaluation

This final rule is not a significant

regulatory action under section 3(f) of

Executive Order 12866 and does not

require an assessment of potential costs

and benefits under section 6(a)(3) of that

Order. It has not been reviewed by the

Office of Management and Budget under

that Order. It is not significant under the

regulatory policies and procedures of

the Department of Transportation (DOT)

(44 FR 11040; February 26, 1979). The

Coast Guard expects the economic

impact of this final rule to be so

minimal that a full Regulatory

Evaluation under paragraph 10e of the

regulatory policies and procedures of

DOT is unnecessary. This finding is

based on the following: this is an annual

marine event currently published in 33

CFR 165.166, the event’s date is the

same, and the location is only 75 yards

from the location in 33 CFR 165.166,

this final rule will close a portion of

Burlington Bay for less time than the

current regulation will, the limited

marine traffic in the area, the minimal

time that vessels will be restricted from

the zone, and advance notification

which will be made.

Small Entities

Under the Regulatory Flexibility Act

(5 U.S.C. 601 et seq.), the Coast Guard

considered whether this rule will have

a significant economic impact on a

substantial number of small entities.

‘‘Small entities’’ include small

businesses, not-for-profit organizations

that are independently owned and

operate and are not dominant in their

fields, and governmental jurisdictions

with populations of less than 50,000.

For reasons discussed in the

Regulatory Evaluation above, the Coast

Guard certifies under section 605(b) of

the Regulatory Flexibility Act (5 U.S.C.

601 et seq.) that this final rule will not

have a significant economic impact on

a substantial number of small entities.