`[Federal Register Volume 61, Number 104 (Wednesday, May 29, 1996)]
[Rules and Regulations]
[Pages 26836-26839]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-13268]



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DEPARTMENT OF THE INTERIOR
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.

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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 Secs. 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

[[Page 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 acid-forming 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 Sec. 480-03-

[[Page 26838]]

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 Analysis-Clarification

    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 Sec. 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.)

[[Page 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 Sec. 946.15, paragraph (jj) is added to read as follows:


Sec. 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:


Sec. 946.16  [Amended]

    3. In Sec. 946.16, paragraph (a) is removed and reserved.

[FR Doc. 96-13268 Filed 5-28-96; 8:45 am]
BILLING CODE 4310-05-M`