26836 Federal Register / Vol. 61, No. 104 / Wednesday, May 29, 1996 / Rules and Regulations

Department relied upon the data and

assumptions in the analysis for the

corresponding Federal regulations.

6. Unfunded Mandates Reform Act

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 931

Intergovernmental relations, Surface

mining, Underground mining.

Dated: May 7, 1996.

Richard J. Seibel,

Regional Director, Western 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 931—NEW MEXICO

1. The authority citation for Part 931

continues to read as follows:

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

2. Section 931.15 is amended by

adding paragraph (t) to read as follows:

§ 931.15 Approval of amendments to State

regulatory program.

* * * * *

(t) The director approves, with one

exception at CSMC 80–1–20–116(b)(6)

concerning the authorization for the

Director of the New Mexico program to

approve normal husbandry practices

that have not been approved by OSM,

the proposed revisions submitted by

New Mexico on January 22, 1996.

3. Section 931.16 is amended by

removing and reserving paragraphs (a),

(c), (d), (f), (g), (h), (i), (j), (k), (l), (p), (q),

(r), and (s); revising (n); and adding

paragraphs (w),(x),(y), (z), and (aa) to

read as follows:

§ 931.16 Required program amendments.

* * * * *

(n) By February 15, 1994, New Mexico

shall submit to OSM proposed revisions

to CSMC Rule 80–1–20–116(b)(1), or

otherwise amend its program, to require

that all revegetation success standards

and measuring techniques be approved

by the Director of OSM as well as the

Director of MMD.

* * * * *

(w) By November 25, 1996, New

Mexico shall submit revisions at CSMC

Rule 80–1–1–5, for the definitions of

‘‘Material damage’’ and ‘‘Occupied

residential dwelling and associated

structures’’ to include references in

these definitions to CSMC Rules 80–1–

20–121, 125, and 127.

(x) By November 25, 1996, New

Mexico shall submit revisions at CSMC

Rule 80–1–9–29(e)(5) and CSMC Rules

80–1–20–49(d), (f)(2), and (g)(4) and (5),

to incorporate the requirements

pertaining to those structures that meet

or exceed the Class B or C criteria for

dams in TR–60.

(y) By November 25, 1996, New

Mexico shall submit revisions at CSMC

Rule 80–1–11–20(b)(1) to violations

review criteria that the Director of the

New Mexico program would use to

determine what specific unabated

violations, delinquent penalties and

fees, and ownership and control

relationship applied at the time a permit

was issued.

(z) By November 25, 1996, New

Mexico shall submit revisions at CSMC

Rule 80–1–20–116(b)(6) to either

(1) Identify selected husbandry

practices and submit them with

documentation verifying that the

proposed practices would be considered

normal in the areas being mined or

(2) State that selected husbandry

practices approved by the Director may

not be implemented prior to approval

from OSM in accordance with the State

program amendment process at 30 CFR

772.17.

(aa) By November 25, 1996, New

Mexico shall submit revisions at CSMC

Rule 80–1–20–127 to clearly require

adjustment of the bond amount when

subsidence-related contamination,

diminution, or interruption to a water

supply occurs.

[FR Doc. 96–13265 Filed 5–28–96; 8:45 am]

BILLING CODE 4310–05–M

30 CFR Part 946

[VA–105–FOR]

Virginia Regulatory Program

AGENCY: Office of Surface Mining

Reclamation and Enforcement (OSM),

Interior.

ACTION: Final rule; approval of

amendment.

SUMMARY: OSM is approving a proposed

amendment to the Virginia permanent

regulatory program (hereinafter referred

to as the Virginia program) under the

Surface Mining Control and

Reclamation Act of 1977 (SMCRA). The

amendment consists of five explanatory

statements written to clarify and assist

the implementation of, and compliance

with, recent changes to §§ 480–03–

19.816/817.102(e) of the Virginia

program relative to the disposal of coal

processing waste and underground

development waste in mined-out areas.

The amendment is intended to address

a required program amendment at 30

CFR 946.16(a).

EFFECTIVE DATE: May 29, 1996.

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: (703) 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 Determination.

I. Background on the Virginia Program

SMCRA was passed in 1977 to

address environmental and safety

problems associated with coal mining.

Under SMCRA, OSM works with States

to ensure that coal mines are operated

in a manner that protects citizens and

the environment during mining, that the

land is restored to beneficial use

following mining, and that the effects of

past mining at abandoned coal mines

are mitigated.

Many coal-producing States,

including Virginia, have sought and

obtained approval from the Secretary of

the Interior to carry out SMCRA’s

requirements within their borders. In

becoming the primary enforces of

SMCRA, these ‘‘primacy’’ States accept

a shared responsibility with OSM to

achieve the goals of the Act. Such States

join with OSM in a shared commitment

to the protection of citizens from

abusive mining practices, to be

responsive to their concerns, and to

allow them full access to information

needed to evaluate the effects of mining

on their health, safety, general welfare,

and property. This commitment also

recognizes the need for clear, fair, and

consistently applied policies that are

not unnecessarily burdensome to the

coal industry—producers of an

important sources of our Nation’s

energy.

Under SMCRA, OSM sets minimum

regulatory and reclamation standards.

Each primacy State ensures that coal

mines are operated and reclaimed in

accordance with the standards in its

approved State program. The States

serve as the front-line authorities for

implementation and enforcement of

SMCRA, while OSM maintains a State

performance evaluation role and

provides funding and technical

assistance to States to carry out their

approved programs. OSM also is

responsible for taking direct
Federal Register / Vol. 61, No. 104 / Wednesday, May 29, 1996 / Rules and Regulations 26837

enforcement action in a primacy State,

if needed, to protect the public in cases

of imminent harm or, following

appropriate notice to the State, when a

State acts in an arbitrary and capricious

manner in not taking needed

enforcement actions required under its

approved regulatory program.

Currently, there are 24 primacy states

that administer and enforce regulatory

programs under SMCRA. These states

may amend their programs, with OSM

approval, at any time so long as they

remain no less effective than Federal

regulatory requirements. In addition,

whenever SMCRA or implementing

Federal regulations are revised, OSM is

required to notify the States of the

changes so that they can revise their

programs accordingly to remain no less

effective than the Federal requirements.

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 October 31, 1994

(Administrative Record No. VA–839),

Virginia proposed to amend section

480–03–19.816/817.102(e) to clarify the

Virginia regulations that are applicable

when coal processing waste and

underground development waste is used

as backfill material for mined-out areas.

The amendment was submitted to settle

interpretational differences between

Virginia and OSM relative to how the

coal mine waste regulations apply to

waste materials placed in backfills.

Virginia’s submittal of the amendment

to section 480–03–19.816/817.102(e)

was accompanied by a detailed

explanation of the intended

implementation and scope of the

proposed amendment. OSM approved

the amendment on August 8, 1995 (60

FR 40271) to the extent that the

amendments are implemented as

explained by Virginia in its October 31,

1994, submittal letter. In addition, OSM

also required (at 30 CFR 946.16(a)) that

Virginia further clarify the

implementation of the changes by

amending the Virginia program as

follows:

(1) Define the term ‘‘suitable;’’

(2) Add a requirement to the Virginia

rules to explicitly require the

determination of the location of seeps,

springs, or other discharges in the

designing of a backfill;

(3) Add to 480–03–19.773.17 a

specific requirement that a permit

condition be imposed requiring a

quarterly analysis of coal mine waste as

it is placed in a refuse pile or in an area

being backfilled.

(4) Define the term ‘‘small’’ to mean

that there are no channeled flows, that

during storm events there is only sheet

flow, and that no variance would be

approved if the drainage area above the

pile on any point exceeds 500 feet,

measured along the slope; (5) Add a

requirement that whenever coal refuse

is placed on preexisting benches for the

purpose of returning the benches to

approximate original contour (AOC), the

performance standards for the

placement of excess spoil on preexisting

benches will be followed.

By letter dated October 13, 1995

(Administrative Record No. VA–865),

Virginia submitted its response to the

required amendments at 30 CFR

946.16(a). The amendment consists of

five statements that are attached to a

letter to be sent to coal operators,

consultants, Virginia Division of Mined

Land Reclamation (DMLR) personnel,

and other interested parties. The five

statements are intended to clarify the

intended implementation and scope of

the recently approved amendments to

section 480–03–19.816/817.102(e).

The proposed amendment was

published in the November 27, 1995,

Federal Register (60 FR 58320), 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

December 27, 1995. There were no

requests for a public hearing, so no

hearing was held.

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.

I. Clarification of the Term ‘‘Suitable’’

The State submitted the following

statement:

The Department of Mines, Minerals, and

Energy (DMME) has not promulgated a

regulatory definition for the term ‘‘suitable’’

as used at 480–03–19.816/817.102(e) since

the ordinary usage (Webster-satisfactory for a

use or purpose) is intended. DMME will

consider material suitable provided it is

satisfactory for the purpose of meeting the

Virginia program performance standards for

each site specific circumstance. For an

example, the physical cohesive property of a

given waste material under specific site

conditions will be considered suitable

provided the required (1.3) static safety factor

can be achieved and landslides prevented

[see 480–03–19.816/817.102(a) and (f)].

Waste material is considered suitable

provided the host site conditions, the

material’s chemical and physical

characteristics, and the disposal techniques

collectively demonstrate compliance with the

Virginia program performance standards,

including sections 480–03–19–816/817.41,

480–03–19.816/817.74, 480–03–19.816/

817.81, 480–03–19.816/817.95, 480–03–

19.816/817.97, 480–03–19.816/817.111–116,

and 480–03–19.816/817.133.

The Director finds that the DMLS’s

statement adequately clarifies how the

State interprets and will implement the

term ‘‘suitable’’ in the Virginia program.

That is, materials will be considered

suitable, if the DMME determines that

the use of those materials will not result

in the violation of the Virginia approved

performance standards. Therefore, the

Director finds that the required

amendment at 30 CFR 946.16(a)(1) is

satisfied and can be removed.

2. Seeps, Springs, or Other Discharges in

the Backfill

The State submitted the following

statement:

The Division of Mined Land Reclamation

(DMLR) finds it necessary for the applicant

to determine and identify in the application

the location of seeps, springs, or other

discharges in any area proposed for

backfilling with coal mine waste. Such

information is crucial to the applicant’s site

selection and backfill design as well as to

DMLR’s environmental impact analysis.

DMLR has initiated the process to revise its

regulations to be more specific with regard to

seeps and springs in such backfills. In the

meantime, DMLR interprets 480–03–

19.780.21 (f) and (h) and 480–03–19.784.14

(e) and (g) as authority for this requirement.

The Federal regulations at 30 CFR

780.21(f) and 784.14(e) concerning

probable hydrologic consequences

(PHC) determination provide the

findings shall be made on whether

adverse impacts may occur to the

hydrologic balance, and whether acidforming or toxic-forming materials are

present that could result in

contamination of surface or ground

waters. In addition, 30 CFR 780.21(h)

and 784.14(g) provide that an

application shall contain a hydrologic

reclamation plan that includes the

measures to be taken to avoid acid or

toxic drainage.

The DMLR has clarified that a permit

application should include the location

of seeps, springs, or other discharges is

crucial to the applicant’s site selection

and backfill design as well as to the

DMLR’s environmental impact analysis.

The DMLR also acknowledged that it

has the authority under § 480–03–
26838 Federal Register / Vol. 61, No. 104 / Wednesday, May 29, 1996 / Rules and Regulations

19.780.21 (f) and (h) and 784.14 (e) and

(g) to require such information. In

addition, the DMLR will revise its

regulations to more clearly require

information regarding springs and

seeps.

The Director finds that the DMLR’s

statement adequately explains the State

program concerning the identification of

the location of seeps, springs, and other

discharges in any area proposed for

backfilling with coal mine waste, and

that the Virginia program has the

authority to require such information.

Therefore, the Director finds that the

required amendment at 30 CFR

946.16(a)(2) is satisfied and can be

removed.

3. Permit Condition/Quarterly AnalysisClarification

The State submitted the following

statement:

The Virginia regulations at 480–03–

19.773.17(b) provide authority for DMLR to

impose permit conditions in addition to

those mandated by this section. When the

physical or chemical characteristics of coal

mine waste used as backfill material are

subject to change, DMLR will specify a

condition in the permit approval document

requiring the appropriate sampling and

analysis necessary to ensure continued

compliance with the performance standards.

(Examples of circumstances in which DMLR

requires periodic analysis of coal mine

refuse, and/or backfill include, but is not

limited to: refuse produced by preparation

plant serving several operations; refuse

produced over a large areal extent at a single

operation; refuse produced by several

operations; and refuse of varying quality

produced at several locations within one

operation.)

The Director finds that the DMLR’s

statement clearly acknowledges that the

regulatory authority will impose a

permit condition requiring sampling of

the coal mine waste material whenever

the physical or chemical characteristics

of that material are subject to changes.

In addition, the DMLR has provided

some specific examples that clarify

typical circumstances under which the

DMLR will apply permit conditions to

require analysis of coal mine waste that

is placed in the backfill to ensure

continued compliance with the

performance standards. The DMLR also

has stated that it interprets § 480–03–

19.780/784.22(c) as authority to require

periodic testing as necessary to ensure

compliance with the hydrologic

protection and other performance

standards.

As noted above, the Director had

required Virginia to amend its program

by adding a provision requiring

quarterly analysis of coal mine waste

material as it is placed in backfills or

refuse piles. The basis for this required

amendment was Virginia’s statement

that, as a matter of practice, it already

imposed permit conditions pursuant to

480–03–19.773.17 requiring a quarterly

analysis of coal mine waste. Because the

Director was concerned that this permit

condition requirement would not be

enforceable, he required Virginia to add

the requirement to its program. See 60

FR 40271, 40274, August 8, 1995. In its

submittal of October 13, 1995

(Administrative Record No. VA–865),

Virginia stated that it had chosen a more

flexible permit condition requirement,

based on the type of coal mine waste

material involved in each particular

instance. The Director did not conclude

in the August 8, 1995, Federal Register

notice, nor does he conclude now, that

quarterly analysis of coal mine waste

material is required in all instances by

SMCRA or its implementing regulations.

Rather, the Director’s primary concern

was that Virginia have the ability to

enforce the requirement of an added

permit condition. Moreover, the

Director now agrees with Virginia that

the State regulatory authority should

have the flexibility to impose permit

conditions requiring ‘‘appropriate’’

sampling and analysis to ensure

continued compliance with all

applicable performance standards,

particularly where the chemical or

physical characteristics of the coal mine

waste material are subject to change.

‘‘Appropriate’’ analysis may, in some

instances, mean testing the material

more, or less frequently than on a

quarterly basis. Because Virginia has

adequately incorporated into the

Virginia program its permit condition

requirements with respect to coal mine

waste, the Director is satisfied that these

requirements are now enforceable.

Therefore, the Director finds that 30

CFR 946.16(a)(3) is satisfied, and can be

removed.

4. ‘‘Small Area’’—Clarification

The State submitted the following

statement:

At 480–03–19.816/817.102(e), the Virginia

regulations provide that a variance to the

requirement at 480–03–19.816/817.83(a)(2)

may be approved by DMLR provided ‘‘the

applicant demonstrates that the area above

the refuse pile is small and that appropriate

measures will be taken to direct or convey

runoff across the surface area of the pile in

a controlled manner.

DMLR intends to consider areas small

provided the drainage area is 500 feet or less

as measured along the slope. However,

DMLR will grant such a variance only when

there are no channeled flows, and if during

storm events, there is only sheet flow.

The Director finds that the DMLR’s

statement adequately explains the

definition of ‘‘small’’ relative to

uncontrolled drainage above a backfill

in accordance with the required

amendments at 30 CFR 946.16(a)(4). 39

CFR946.16(a)(4) is, therefore, removed.

5. Preexisting Benches—Clarification

DMLR will approve an application to place

coal refuse on preexisting benches for the

purpose of returning the benches to the

approximate original contour provided the

performance standard for the placement of

excess spoil on preexisting benches will be

followed. The preexisting bench standard are

found at 480–03–19.816/817.74.

The Director finds the DMLR’s

statement adequately clarifies the

applicability of the performance

standards for the placement of excess

spoil on pre-existing benches in

accordance with the required

amendment at 30 CFR 946.16(a)(5). 30

CFR 946.16(a)(5) is, therefore, removed.

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 responded

(Administrative Record No. VA–868)

but offered no comments on this

amendment. The U.S. Department of

Labor, Mine Safety and Health

Administration responded

(Administrative Record No. VA–867)

that the amendments are deemed

appropriate since there appears to be no

conflict with MSHA regulations. The

U.S. Department of Agriculture, Natural

Resources Conservation Service

responded (Administrative Record No.

VA–866) and stated that the

clarifications should be accepted.

Public Comments

A public comment period and

opportunity to request a public hearing

was announced in the November 27,

1995, Federal Register (60 FR 58320).

The comment period closed on

December 27, 1995. No comments were

received and no one requested an

opportunity to testify at the scheduled

public hearing so no hearing was held.

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 the 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.)
Federal Register / Vol. 61, No. 104 / Wednesday, May 29, 1996 / Rules and Regulations 26839

or the Clean Air Act (42 U.S.C. 7401 et

seq.). The Director has determined that

this amendment contains no provisions

in these categories and that EPA’s

concurrence is not required.

Pursuant to 732.17(h)(11)(i), OSM

solicited comments on the proposed

amendment from EPA. EPA responded

on February 1, 1996 (Administrative

Record No. VA–869) and stated that the

amendment is consistent with

regulations under the Clean Water Act

and offered no additional comments.

V. Director’s Decision

Based on the findings above, the

Director is approving Virginia’s

amendment concerning coal refuse

disposal as submitted by Virginia on

October 13, 1995.

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 12778

(Civil Justice Reform) and has

determined that, to the extent allowed

by law, this rule meets the applicable

standards of subsections (a) and (b) of

that section. However, these standards

are not applicable to the actual language

of State regulatory programs and

program amendments since each such

program is drafted and promulgated by

a specific State, not by OSM. Under

sections 503 and 505 of SMCRA (30

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

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

decisions on proposed State regulatory

programs and program amendments

submitted by the States must be based

solely on a determination of whether the

submittal is consistent with SMCRA and

its implementing Federal regulations

and whether the other requirements of

30 CFR Parts 730, 731, and 732 have

been met.

National Environmental Policy Act

No environmental impact statement is

required for this rule since section

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

provides that agency decisions on

proposed State regulatory program

provisions do not constitute major

Federal actions within the meaning of

section 102(2)(C) of the National

Environmental Policy Act (42 U.S.C.

4332(2)(C)).

Paperwork Reduction Act

This rule does not contain

information collection requirements that

require approval by OMB under the

Paperwork Reduction Act (44 U.S.C.

3507 et seq.).

Regulatory Flexibility Act

The Department of the Interior has

determined that this rule will not have

a significant economic impact on a

substantial number of small entities

under the Regulatory Flexibility Act (5

U.S.C. 601 et seq.). The State submittal

which is the subject of this rule is based

upon counterpart Federal regulations for

which an economic analysis was

prepared and certification made that

such regulations would not have a

significant economic effect upon a

substantial number of small entities.

Accordingly, this rule will ensure that

existing requirements previously

promulgated by OSM will be

implemented by the State. In making the

determination as to whether this rule

would have a significant economic

impact, the Department relied upon the

data and assumptions for the

counterpart Federal regulations.

Unfunded Mandates

This rule will not impose a cost of

$100 million or more in any given year

on any governmental entity or the

private sector.

List of Subjects in 30 CFR Part 946

Intergovernmental relations, Surface

mining, Underground mining.

Dated: May 14, 1996.

Michael K. Robinson,

Acting Regional Director, Appalachian

Regional Coordinating Center.

For the reasons set out in the

preamble, Title 30, Chapter VII,

Subchapter T of the Code of Federal

Regulations is amended as set forth

below:

PART 946—VIRGINIA

1. The authority citation for Part 946

continues to read as follows:

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

2. In § 946.15, paragraph (jj) is added

to read as follows:

§ 946.15 Approval of regulatory program

amendments.

* * * * *

(jj) The following amendment to the

Virginia program at 480–03–19.816/

817.102(e) concerning coal refuse

disposal as submitted to OSM on

October 13, 1995, is approved effective

May 29, 1996:

§ 946.16 [Amended]

3. In § 946.16, paragraph (a) is

removed and reserved.

[FR Doc. 96–13268 Filed 5–28–96; 8:45 am]

BILLING CODE 4310–05–M

DEPARTMENT OF THE TREASURY

Fiscal Service

31 CFR Part 224

RIN 1510–AA49

Federal Process Agents of Surety

Companies

AGENCY: Financial Management Service,

Fiscal Service, Treasury.

ACTION: Final rule.

SUMMARY: This action amends the

regulation governing surety companies

doing business with the United States.

Specifically, it eliminates the

requirement that surety companies

doing business with the United States

report their Federal process agent

appointments to the Department of the

Treasury, Financial Management

Service (FMS). FMS no longer needs or

collects this information. This

amendment makes the regulation

consistent with current practice.

EFFECTIVE DATE: June 28, 1996.

FOR FURTHER INFORMATION CONTACT:

Dorothy E. Martin, (202) 874–6850

(Manager, Surety Bond Branch).

SUPPLEMENTARY INFORMATION: This

regulation eliminates the requirement

that surety companies report their

Federal Process Agent appointments to

the Financial Management Service. This

action does not eliminate the

requirement for surety companies to

designate a person to serve as a Federal

Process Agent and register that person

with the clerk of the district court for

the district in which a surety bond is to

be given.

The final rule includes several

editorial changes and a realignment of

the sections as a result of eliminating

§ 224.5, ‘‘Filing process agent

appointment information with the

Treasury.’’