Federal Register / Vol. 73, No. 169 / Friday, August 29, 2008 / Proposed Rules 50915 

(1) Department agencies shall issue an 

Advance Notice of Proposed 

Rulemaking (ANPRM) soliciting public 

input on relevant studies and scientific 

information, data regarding the 

frequency, intensity, duration and other 

parameters of worker exposure in the 

affected industries, occupations and 

activities, key default factors and 

assumptions, and other relevant 

information related to the development 

of a health standard regulating 

occupational exposure to a particular 

toxic substance or hazardous chemical 

prior to issuing a Notice of Proposed 

Rulemaking (NPRM) or other regulatory 

action in that health rulemaking, except 

when promulgating an emergency 

temporary standard under section 6(c) 

of the OSH Act, 29 U.S.C. 655(c) (2000) 

or section 101(b)(1) of the Mine Act, 30 

U.S.C. 811(b)(1) (2000). 

(2) In its risk assessments, the 

Department’s agencies shall identify and 

discuss key issues including, but not 

limited to, the reliability of data, 

significant uncertainties, choice of 

assumptions and default factors, and 

shall address all related comments from 

the public and peer reviewers in the 

subsequent Notice of Proposed 

Rulemaking (NPRM) and Final Rule. 

(3) Risk assessments shall utilize the 

best available evidence, and the latest 

available scientific data in the field, 

including industry-by-industry evidence 

relating to working life exposures. 

(4) Department risk assessments shall 

include and identify the following four 

components: 

(i) Hazard identification. The hazard 

identification step examines whether a 

substance or chemical is a health 

hazard; 

(ii) Dose-response assessment. The 

dose response assessment step examines 

the relationship between exposure to a 

hazardous substance and an adverse 

health outcome; 

(iii) Exposure assessment. The 

exposure assessment step estimates 

exposure to the hazardous substance in 

the workplace; 

(iv) Risk characterization. The risk 

characterization step provides estimates 

of risk to workers from occupational 

exposure scenarios of interest. The risk 

characterization also summarizes the 

key findings and discusses the 

limitations of the data, the choice of 

assumptions, the inherent uncertainties 

associated with the estimates of risk, 

limitations of the database, and how 

these factors impact the risk assessment. 

(5) Information quality and peer 

review. Risk assessments shall be 

performed in accordance with Office of 

Management and Budget’s (OMB) and 

the Department’s information quality 

and peer review guidelines. 

(d) Public access to rulemaking 

information. 

(1) The Department shall post together 

in an easily accessible and well 

organized format on http:// 

www.regulations.gov, all relevant 

documents related to any rulemaking 

addressing occupational exposure to 

toxic substances and hazardous 

chemicals no later than fourteen days 

after the conclusion of the relevant step 

in the rulemaking process, including but 

not limited to publication of the 

ANPRM, conclusion of the Small 

Business Regulatory Fairness Act 

(SBREFA) process, publication of the 

NPRM, conclusion of any public hearing 

and the publication of the Final Rule. 

(2) The documents posted shall 

include but are not limited to any 

underlying scientific studies relied 

upon in the rulemaking, to the extent 

possible given copyright limitations; all 

risk assessment analyses underlying the 

NPRM and Final Rule; the text of the 

ANPRM; SBREFA process documents; 

the text of the NPRM; all public hearing 

transcripts and briefs; all public 

comments; the final docket of the 

rulemaking; and the text of the Final 

Rule. 

Signed at Washington, DC, this 26th day of 

August 2008. 

Leon R. Sequeira, 

Assistant Secretary for Policy. 

[FR Doc. E8–20179 Filed 8–28–08; 8:45 am] 

BILLING CODE 4510–23–P 

DEPARTMENT OF THE INTERIOR 

Office of Surface Mining Reclamation 

and Enforcement 

30 CFR Part 946 

[VA–126–FOR; Docket ID OSM–2008–0012] 

Virginia Regulatory Program 

AGENCY: Office of Surface Mining 

Reclamation and Enforcement (OSM), 

Interior. 

ACTION: Proposed rule; public comment 

period and opportunity for public 

hearing on proposed amendment. 

SUMMARY: We are announcing receipt of 

a proposed amendment to the Virginia 

regulatory program under the Surface 

Mining Control and Reclamation Act of 

1977 (SMCRA or the Act). The 

amendment revises the Virginia Coal 

Surface Mining Reclamation 

Regulations pertaining to ownership 

and control, valid existing rights, selfbonding, and availability of records. 

Virginia intends to revise its program to 

be consistent with the corresponding 

Federal regulations and SMCRA and is 

responding, in part, to 30 CFR Part 732 

letters. 

This document gives the times and 

locations that the Virginia program and 

this submittal are available for your 

inspection, the comment period during 

which you may submit written 

comments, and the procedures that we 

will follow for the public hearing, if one 

is requested. 

DATES: We will accept written 

comments until 4 p.m., local time, 

September 29, 2008. If requested, we 

will hold a public hearing on September 

23, 2008. We will accept requests to 

speak until 4 p.m., e.s.t., on September 

15, 2008. 

ADDRESSES: You may submit comments, 

identified by ‘‘VA–126–FOR/OSM–

2008–0012’’ by any of the following 

methods: 

• E-mail: ebandy@osmre.gov. 

• Mail/Hand Delivery: Earl Bandy, 

Knoxville Field Office, Office of Surface 

Mining Reclamation and Enforcement, 

710 Locust Street, 2nd Floor, Knoxville, 

Tennessee 37902, Telephone: (865) 545–

4103. 

• Federal eRulemaking Portal: http:// 

www.regulations.gov. The proposed rule 

has been assigned Docket ID OSM–

2008–0012. If you would like to submit 

comments through the Federal 

eRulemaking Portal, go to http:// 

www.regulations.gov and do the 

following. Click on the ‘‘Advanced 

Docket Search’’ button on the right side 

of the screen. Type in the Docket ID 

OSM–2008–0012 and click the 

‘‘Submit’’ button at the bottom of the 

page. The next screen will display the 

Docket Search Results for the 

rulemaking. If you click on OSM–2008–

0012, you can view the proposed rule 

and submit a comment. You can also 

view supporting material and any 

comments submitted by others. 

Instructions: All submissions received 

must include the agency docket number 

‘‘OSM–2008–0012/VA–126–FOR’’ for 

this rulemaking. For detailed 

instructions on submitting comments 

and additional information on the 

rulemaking process, see the ‘‘Public 

Comment Procedures’’ section in this 

document. You may also request to 

speak at a public hearing by any of the 

methods listed above or by contacting 

the individual listed under FOR FURTHER

INFORMATION CONTACT. 

Docket: You may review copies of the 

Virginia program, this submission, a 

listing of any scheduled public hearings, 

and all written comments received in 

response to this document at OSM’s 


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50916 Federal Register / Vol. 73, No. 169 / Friday, August 29, 2008 / Proposed Rules 

Knoxville Field Office at the address 

listed above during normal business 

hours, Monday through Friday, 

excluding holidays. You may receive 

one free copy of the submission by 

contacting OSM’s Knoxville Field 

Office. In addition, you may receive a 

copy of the submission during regular 

business hours at the following location: 

Virginia Department of Mines, Minerals, 

and Energy, 3405 Mountain Empire 

Road, Big Stone Gap, Virginia 24219, 

Telephone: (276) 523–8100, E-Mail: 

lsv@mme.state.va.us. 

FOR FURTHER INFORMATION CONTACT: Earl 

Bandy, Telephone: (865) 545–4103. 

Internet: ebandy@osmre.gov. 

SUPPLEMENTARY INFORMATION: 

I. Background on the Virginia Program 

II. Description of the Submission 

III. Public Comment Procedures 

IV. Procedural Determinations 

I. Background on the Virginia Program 

Section 503(a) of the Act permits a 

State to assume primacy for the 

regulation of surface coal mining and 

reclamation operations on non-Federal 

and non-Indian lands within its borders 

by demonstrating that its program 

includes, among other things, ‘‘a State 

law which provides for the regulation of 

surface coal mining and reclamation 

operations in accordance with the 

requirements of this Act* * *; and 

rules and regulations consistent with 

regulations issued by the Secretary 

pursuant to this Act.’’ See 30 U.S.C. 

1253(a)(1) and (7). On the basis of these 

criteria, the Secretary of the Interior 

conditionally approved the Virginia 

program on December 15, 1981. You can 

find background information on the 

Virginia program, including the 

Secretary’s findings, the disposition of 

comments, and conditions of approval 

of the Virginia program in the December 

15, 1981, Federal Register (46 FR 

61088). You can also find later actions 

concerning Virginia’s program and 

program amendments at 30 CFR 946.12, 

946.13, and 946.15. 

II. Description of the Submission 

By letter dated June 11, 2008, the 

Virginia Department of Mines, Minerals, 

and Energy (DMME) sent us an informal 

proposed amendment to its program for 

a pre-submission review (VA–126–INF). 

We reviewed the pre-submission and 

responded to DMME, with comments, 

via electronic mail on July 2, 2008. By 

letter dated July 17, 2008, DMME 

formally submitted the proposed 

amendments to its program 

(Administrative Record No. VA–1089.) 

The full text of the program amendment 

is available for you to read at the 

location listed above under 

‘‘ADDRESSES.’’ DMME proposes the 

following changes: 

1. 4VAC25–130–700.5. Definitions 

The corresponding Federal 

regulations for this section are 30 CFR 

701.5, 761.5 and 880.5. 

DMME proposes to either add, delete 

or modify the following definitions: 

‘‘Applicant Violator System’’ or 

‘‘AVS’’ means an automated information 

system of applicant, permittee, operator, 

violation and related data the Federal 

Office of Surface Mining Reclamation 

and Enforcement (OSM) maintains and 

the division utilizes in the permit 

review process. 

‘‘Control’’ or ‘‘controller’’, when used 

in Parts 4VAC25–130–773, 4VAC25–

130–774, and 4VAC25–130–778 of this 

chapter, refers to or means (a) A 

permittee of a surface coal mining 

operation; (b) An operator of a surface 

coal mining operation; or (c) Any person 

who has the ability to determine the 

manner in which a surface coal mining 

operation is conducted. 

‘‘Indemnity agreement’’ means an 

agreement between two persons in 

which one person agrees to pay the 

other person for a loss or damage. The 

persons involved can be individual 

people, or groups of people, or legal 

organizations, such as partnerships, 

corporations or government agencies, or 

any combination of these. The 

agreement shall, at a minimum: 

(a) Contain the date of execution. 

(b) Be payable to the ‘‘Treasurer of 

Virginia.’’

(c) Be immediately due and payable 

in the event of bond forfeiture of the 

permit. 

(d) Be payable in a sum certain of 

money. 

(e) Be signed by the makers. 

‘‘Knowing’’ or ‘‘knowingly’’, which 

means that a person who authorized, 

ordered, or carried out an act or 

omission knew or had reason to know 

that the act or omission would result in 

either a violation or a failure to abate or 

correct a violation. 

‘‘Own’’, ‘‘owner’’, or ‘‘ownership’’, as 

used in Parts 4VAC25–130–773, 

4VAC25–130–774, and 4VAC25–130–

778 of this chapter (except when used 

in the context of ownership of real 

property), means being a sole proprietor 

or owning of record in excess of 50 

percent of the voting securities or other 

instruments of ownership of an entity. 

‘‘Self-bond,’’ as provided by Part 801 

of this chapter, means: 

(a) For an underground mining 

operation, an indemnity agreement in a 

sum certain payable on demand to the 

Treasurer of Virginia, executed by the 

applicant and by each individual and 

business organization capable of 

influencing or controlling the 

investment or financial practices of the 

applicant by virtue of this authority as 

an officer or ownership of all or a 

significant part of the applicant, and 

supported by a certification that the 

applicant participating in the Pool Bond 

Fund has a net worth, total assets minus 

total liabilities equivalent to $1 million. 

Such certification shall be by an 

independent certified public accountant 

in the form of an unqualified opinion. 

This definition in the Virginia 

regulation is being amended to delete 

the reference to ‘‘cognovit note’’ and 

replace such with ‘‘indemnity 

agreement’’, as the approved bonding 

instrument under 4VAC25–130–801.13, 

as being amended. 

The DMME is proposing to delete ‘‘in 

ownership or other effective control 

over the right to conduct surface coal 

mining operations under a permit 

issued by the division’’ and add ‘‘of a 

permittee’’ after ‘‘change.’’ As proposed, 

the definition will read as follows: 

‘‘Transfer, assignment, or sale of 

permit rights’’ means a change of a 

permittee. 

The DMME is proposing to add the 

following definition of ‘‘Valid Existing 

Rights’’ (VER) and delete from 

subsection (a) ‘‘for haulroads, that a 

person possesses a valid existing right 

for an area protected under of the Act 

on August 3, 1977, if the application of 

any of the prohibitions contained in that 

section to the property interest that 

existed on that date would effect a 

taking of the person’s property which 

would entitle the person to 

compensation under the Fifth and 

Fourteenth Amendments to the United 

States Constitution;’’ and add ‘‘§ 45.1–

252 D’’; the DMME is proposing to add 

‘‘For haulroads,’’ at the beginning of 

subsection c; at subsection (c) (2), ‘‘Was 

under a properly’’ is added at the 

beginning sentence and ‘‘A’’ is deleted; 

‘‘or’’ is added after ‘‘way’’; the DMME is 

proposing to add subsection 3 ‘‘Was 

used or contained in a valid permit that 

existed when the land came under the 

protection of § 45.1–252D or § 4 VAC 

25–130–761.11.’’ Subsection (c) is 

deleted entirely and subsection (e) is 

renamed subsection (d). In subsection 

(d), ‘‘That an’’ is added to the beginning 

of the sentence; ‘‘(s) that are’’ is added 

after ‘‘document’’; ‘‘the’’ is deleted after 

‘‘establish’’ and ‘‘valid existing’’ is 

added before ‘‘rights’’; ‘‘to which the 

standard of paragraphs (a) and (d) of this 

definition applies’’ is deleted after 

‘‘rights’’. As proposed, the definition 

will read as follows: 


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Federal Register / Vol. 73, No. 169 / Friday, August 29, 2008 / Proposed Rules 50917 

‘‘Valid existing rights’’ means a set of 

circumstances under which a person 

may, subject to division approval, 

conduct surface coal mining operations 

on lands where § 45.1–252 D of the Act 

and § 4VAC25–130–761.11 of the 

regulations would otherwise prohibit 

such operations. The possession of valid 

existing rights only confers an exception 

from the prohibitions of § 45.1–252 D 

and § 4VAC25–130–761.11. A person 

seeking to exercise valid existing rights 

would need: 

(a) Except as provided in paragraph 

(c) of this definition, a demonstration of 

the legally binding conveyance, lease, 

deed, contract, or other document 

which vests the person, or predecessor 

in interest, with the right to conduct the 

type of surface coal mining operations 

intended. The right must exist at the 

time the land came under the protection 

of § 4VAC25–130–761.11 and § 45.1–

252 D; 

(b) A demonstration of compliance 

with one of the following—

(1) That all permits and other 

authorizations required to conduct 

surface coal mining operations had been 

obtained, or a good faith attempt to 

obtain all necessary permits and 

authorizations had been made, before 

the land came under the protection of 

§ 45.1–252 D or § 4VAC25–130–761.11. 

(2) That the land needed for and 

immediately adjacent to a surface coal 

mining operation for which all permits 

and other authorizations required to 

conduct surface coal mining operations 

had been obtained, or a good faith 

attempt made to obtain such permits 

and authorizations occurred before the 

land came under the protection of 

§ 45.1–252 D or § 4VAC25–130–761.11. 

The person must demonstrate that 

prohibiting the expansion of the 

operation onto that land would unfairly 

impact the viability of the operation as 

originally planned before the land came 

under the protection of § 45.1–252 D or 

§ 4VAC25–130–761.11. Except for 

operations in existence before August 3, 

1977, or for which a good faith effort to 

obtain all necessary permits had been 

made before August 3, 1977, this 

standard does not apply to lands already 

under the protection of § 45.1–252 D or 

§ 4VAC25–130–761.11 when the 

division approved the permit for the 

original operation or when the good 

faith effort to obtain all necessary 

permits for the original operation was 

made. In evaluating whether a person 

meets this standard, the division may 

consider—

(i) The extent to which coal supply 

contracts or other legal and business 

commitments that occurred before the 

land came under the protection of 

§§ 45.1–252 D or § 4VAC25–130–761.11 

depend upon the use of the land for 

surface coal mining operations. 

(ii) The extent to which plans used to 

obtain financing for the operation before 

the land came under the protection of 

§ 45.1–252 D or § 4VAC25–130–761.11 

relied upon use of that land for surface 

coal mining operations. 

(iii) The extent to which investments 

in the operation made before the land 

came under the protection of § 45.1–252 

D or § 4VAC25–130–761.11 relied upon 

the use of that land for surface coal 

mining operations. 

(iv) Whether the land lies within the 

area identified on the life-of-mine map 

under § 4VAC25–130–779.24(c) that was 

submitted before the land came under 

the protection of § 45.1–252 D or 

§ 4VAC25–130–761.11. 

(c) For haulroads, a person who 

claims valid existing rights to use or 

construct a road across the surface of 

lands protected by § 45.1–252 D or 

§ 4VAC25–130–761.11 must 

demonstrate that one or more of the 

following circumstances exist, the 

road—

(1) Existed when the land upon which 

it is located came under the protection 

of § 45.1–252 D or § 4VAC25–130–

761.11, and the person has the legal 

right to use the road for surface coal 

mining operations. 

(2) Was under a properly recorded 

right of way or easement for a road in 

that location at the time the land came 

under the protection of § 45.1–252 D or 

§ 4VAC25–130–761.11, and under the 

document creating the right of way or 

easement, and under subsequent 

conveyances, the person has a legal 

right to use or construct a road across 

the right of way or easement for surface 

coal mining operations. 

(3) Was used or contained in a valid 

permit that existed when the land came 

under the protection of § 45.1–252 D or 

§ 4VAC25–130–761.11. 

(d) That an interpretation of the terms 

of the document(s) that are relied upon 

to establish valid existing rights shall be 

based either upon applicable Virginia 

statutory or case law concerning 

interpretation of documents conveying 

mineral rights or, where no applicable 

state law exists, upon the usage and 

custom at the time and place it came 

into existence. This amendment would 

apply to permit applications submitted 

on and after the date the amendment is 

approved by the Secretary of Interior 

and becomes effective upon 

promulgation pursuant to the Federal 

and Virginia Administrative Process 

Acts. 

The DMME is proposing to add the 

following definition: 

‘‘Violation’’, when used in the context 

of the permit application information or 

permit eligibility requirements of 

§§ 45.1–235 and 45.1–238(C) of the Act 

and related regulations, means: 

(1) A failure to comply with an 

applicable provision of a Virginia, 

Federal, or other State law or regulation 

pertaining to air or water environmental 

protection, as evidenced by a written 

notification from a governmental entity 

to the responsible person; or 

(2) A noncompliance for which the 

division has provided one or more of 

the following types of notice or OSM or 

a State regulatory authority has 

provided equivalent notice under 

corresponding provisions of a Federal or 

State regulatory program—

(i) A notice of violation under 

§ 4VAC–25–130–843.12. 

(ii) A cessation order under § 4VAC–

25–130–843.11. 

(iii) A final order, bill, or demand 

letter pertaining to a delinquent civil 

penalty assessed under Part 4VAC–25–

130–845 or 4VAC–25–130–846. 

(iv) A bill or demand letter pertaining 

to delinquent reclamation fees owed 

under 30 CFR Part 870. 

(v) A notice of bond forfeiture under 

§ 4VAC–25–130–800.50 when—

(A) One or more violations upon 

which the forfeiture was based have not 

been abated or corrected; 

(B) The amount forfeited and 

collected is insufficient for full 

reclamation under § 4VAC–25–130–

800.50 or § 4VAC–25–130–801.19, the 

division orders reimbursement for 

additional reclamation costs, and the 

person has not complied with the 

reimbursement order. 

The DMME is proposing to add the 

following definition: 

‘‘Violation, failure or refusal’’, for 

purposes of Part 4VAC25–130–846, 

means: 

(1) A failure to comply with a 

condition of an issued permit or the 

regulations implementing those 

sections; or 

(2) A failure or refusal to comply with 

any order issued under Part 4VAC25–

130–843, or any order incorporated in a 

final decision issued by the Director, 

except an order incorporated in a 

decision issued under § 45.1–246 of the 

Act. 

The DMME is proposing to add ‘‘or 

regulation’’ after ‘‘law’’ in the definition 

of Violation notice. As proposed, it will 

read as follows: 

‘‘Violation notice’’ means any written 

notification from a governmental entity 

of a violation of law or regulation, 

whether by letter, memorandum, legal 

or administrative pleading, or other 

written communication. 


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50918 Federal Register / Vol. 73, No. 169 / Friday, August 29, 2008 / Proposed Rules 

The DMME proposes to add the 

definition of ‘‘Willful or Willfully.’’ As 

proposed, it will read as follows: 

‘‘Willful’’ or ‘‘Willfully’’ means that a 

person who authorized, ordered or 

carried out an act or omission that 

resulted in either a violation or the 

failure to abate or correct a violation 

acted: 

(1) Intentionally, voluntarily, or 

consciously; and 

(2) With intentional disregard or plain 

indifference to legal requirements. 

The DMME is proposing to delete the 

following definitions: 

‘‘Cognovit note’’ means an 

extraordinary note which authorizes an 

attorney to confess judgment against the 

person or persons signing it. It is written 

authority of a debtor and a direction by 

him for entry of a judgment against him 

if the obligation set forth in the note is 

not paid when due. Such judgment may 

be taken by any person holding the note, 

which cuts off every defense which 

makers of the note may otherwise have 

and it likewise cuts off all rights of 

appeal from any judgment taken on it. 

The note shall, at a minimum: 

(a) Contain the date of execution. 

(b) Be payable to the ‘‘Treasurer of 

Virginia.’’

(c) Be due and payable in the event of 

bond forfeiture of the permit. 

(d) Be payable in a sum certain of 

money. 

(e) Be signed by the makers. 

This definition in the Virginia 

regulations is being deleted, as the 

indemnity agreement will be the 

bonding instrument utilized under 

4VAC25–130–801.13 (as being 

amended). 

‘‘Owned or controlled’’ and ‘‘owns or 

controls’’ mean any one or a 

combination of the relationships 

specified in paragraphs (a) and (b) of 

this definition: 

(a)(i) Being a permittee of a surface 

coal mining operation; (ii) based on 

instrument of ownership or voting 

securities, owning of record in excess of 

50% of an entity; or (iii) having any 

other relationship which gives one 

person authority directly or indirectly to 

determine the manner in which an 

applicant, an operator, or other entity 

conducts surface coal mining 

operations. 

(b) The following relationships are 

presumed to constitute ownership or 

control unless a person can demonstrate 

that the person subject to the 

presumption does not in fact have the 

authority directly or indirectly to 

determine the manner in which the 

relevant surface coal mining operation 

is conducted: 

(1) Being an officer or director of an 

entity; 

(2) Being the operator of a surface coal 

mining operation; 

(3) Having the ability to commit the 

financial or real property assets or 

working resources of an entity; 

(4) Being a general partner in a 

partnership; 

(5) Based on the instruments of 

ownership or the voting securities of a 

corporate entity, owning of record 10 

through 50% of the entity; or 

(6) Owning or controlling coal to be 

mined by another person under a lease, 

sublease or other contract and having 

the right to receive such coal after 

mining or having authority to determine 

the manner in which that person or 

another person conducts a surface coal 

mining operation. 

2. 4VAC25–130–773.13. Public 

Participation in Permit Processing 

The corresponding Federal regulation 

for this section is 30 CFR 773.6. The 

DMME proposes to add ‘‘or the last 

publication date of the newspaper 

notice required by Paragraph (a) of this 

section, whichever is later’’ after 

‘‘notification’’. As proposed, it reads as 

follows: 

(b) Comments and objections on 

permit application. 

(1) Within 30 days after notification or 

the last publication date of the 

newspaper notice required by Paragraph 

(a) of this section, whichever is later, 

written comments or objections on an 

application for a permit, significant 

revision to a permit under 4VAC25–

130–774.13, or renewal of a permit 

under 4VAC25–130–774.15, may be 

submitted to the division by public 

entities notified under Paragraph (a)(3) 

of this section with respect to the effects 

of the proposed mining operations on 

the environment within their areas of 

responsibility. 

This change in the Virginia regulation 

will allow public entities to have the 

same period of time to review and 

comment on the application as afforded 

the public. 

3. 4VAC25–130–773.15. Review of 

Permit Applications 

The corresponding Federal regulation 

for this section is 30 CFR 773.7. 

The DMME proposes to delete from 

(a)(1) ‘‘, unless a later time is necessary 

to provide an opportunity for a hearing 

under subdivision (b)(2) of this section.’’

The DMME proposes to add to (a) 

subdivisions (3) and (4) which state: 

(3) The division shall review the 

information submitted under 

§§ 4VAC25–130–778.13 and 4VAC25–

130–778.14 regarding the applicant’s 

and/or operator’s permit histories, 

business structure, and ownership and 

control relationships. 

(4) If the applicant or operator does 

not have any previous mining 

experience, the division may conduct 

additional reviews to determine if 

someone else with surface coal mining 

experience controls or will control the 

mining operation. 

The DMME proposes to delete from 

subdivision (b)(1) ‘‘by any person who 

owns or controls the applicant’’ after 

‘‘operator’’; proposes to add ‘‘; or if a 

surface coal mining and reclamation 

operation indirectly owned or 

controlled by the applicant or operator 

has an unabated or uncorrected 

violation and the applicant’s or 

operator’s control was established or the 

violation was cited after November 2, 

1988.’’ after ‘‘subdivision’’; proposes to 

delete subsection (b)(4)(i)(C)(1) entirely 

and join (2) to the end of the sentence 

at (C). This change is to reflect the 

deletion of the last sentence of Section 

510(e) of the Surface Mining Control 

and Reclamation Act of 1977 (30 U.S.C. 

1260(e)) per the ‘‘Tax Relief and Health 

Care Act of 2006.’’ As proposed, this 

section will read as follows: 

(a) General. 

(1) The division shall review the 

application for a permit, revision, or 

renewal; written comments and 

objections submitted; information from 

the AVS; and records of any informal 

conference or hearing held on the 

application and issue a written decision, 

within a reasonable time, either 

granting, requiring modification of, or 

denying the application. If an informal 

conference is held under 4VAC25–130–

773.13(c), the decision shall be made 

within 60 days of the close of the 

conference. 

(2) The applicant for a permit or 

revision of a permit shall have the 

burden of establishing that the 

application is in compliance with all the 

requirements of the regulatory program. 

(3) The division shall review the 

information submitted under 

§§ 4VAC25–130–778.13 and 4VAC25–

130–778.14 regarding the applicant’s 

and/or operator’s permit histories, 

business structure, and ownership and 

control relationships. 

(4) If the applicant or operator does 

not have any previous mining 

experience, the division may conduct 

additional reviews to determine if 

someone else with surface coal mining 

experience controls or will control the 

mining operation. 

(b) Review of violations. 

(1) Based on available information 

concerning Federal and state failure-toabate cessation orders, unabated Federal 


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and state imminent harm cessation 

orders, delinquent civil penalties issued 

pursuant to § 518 of the Federal Act and 

§ 45.1–246 of the Code of Virginia, bond 

forfeitures where violations upon which 

the forfeitures were based have not been 

corrected, delinquent abandoned mine 

reclamation fees, and unabated 

violations of Federal and state laws, 

rules, and regulations pertaining to air 

or water environmental protection 

incurred in connection with any surface 

coal mining operation, the division shall 

not issue the permit if any surface coal 

mining and reclamation operation 

directly owned or controlled by either 

the applicant or operator is currently in 

violation of the Federal Act, this 

chapter, or any other law, rule or 

regulation referred to in this 

subdivision; or if a surface coal mining 

and reclamation operation indirectly 

owned or controlled by the applicant or 

operator has an unabated or uncorrected 

violation and the applicant’s or 

operator’s control was established or the 

violation was cited after November 2, 

1988. In the absence of a failure-to-abate 

cessation order, the division may 

presume that a notice of violation issued 

pursuant to 4VAC25–130–843.12 or 

under a Federal or state program has 

been or is being corrected to the 

satisfaction of the agency with 

jurisdiction over the violation, except 

where evidence to the contrary is set 

forth in the permit application or the 

AVS; or where the notice of violation is 

issued for nonpayment of abandoned 

mine reclamation fees or civil penalties. 

If a current violation exists, the division 

shall require the applicant or operator 

before the issuance of the permit, to 

either: 

(i) Submit to the division proof that 

the current violation has been or is in 

the process of being corrected to the 

satisfaction of the agency that has 

jurisdiction over the violation; or 

(ii) Establish for the division that the 

applicant or operator or any person who 

owns or controls the applicant, has filed 

and is presently pursuing, in good faith, 

a direct administrative or judicial 

appeal to contest the validity of the 

current violation. If the initial judicial 

review authority under 4VAC25–130–

775.13 affirms the violation, then the 

applicant shall within 30 days of the 

judicial action submit the proof required 

under subdivision (b)(1)(i) of this 

section. 

(2) Any permit that is issued on the 

basis of proof submitted under 

subdivision (b)(1)(i) of this section that 

a violation is in the process of being 

corrected, or pending the outcome of an 

appeal described in subdivision 

(b)(1)(ii) of this section, shall be 

conditionally issued. 

(3) If the division makes a finding that 

the applicant or the operator specified 

in the application, controls or has 

controlled surface coal mining and 

reclamation operations with a 

demonstrated pattern of willful 

violations of the Act of such nature and 

duration, and with resulting irreparable 

damage to the environment as to 

indicate an intent not to comply with 

the Act, no permit shall be issued. 

Before such a finding becomes final, the 

applicant or operator shall be afforded 

an opportunity for an adjudicatory 

hearing on the determination as 

provided for in 4VAC25–130–775.11. 

(4)(i) Subsequent to October 24, 1992, 

the prohibitions of subsection (b) of this 

section regarding the issuance of a new 

permit shall not apply to any violation 

that: 

(A) Occurs after that date; 

(B) Is unabated; and 

(C) Results from an unanticipated 

event or condition that arises from a 

surface coal mining and reclamation 

operation on lands that are eligible for 

remining under a permit held by the 

person making application for the new 

permit. 

4. 4VAC25–130–773.20(c)(3). 

Improvidently Issued Permits; General 

Procedures 

The corresponding Federal regulation 

for this section is 30 CFR 773.21. 

The DMME proposes to amend 

subsection (c)(3) by deleting ‘‘Suspend 

the permit until’’ and delete (c)(4) 

entirely. As amended, it will read as 

follows: 

(3) Serve the permittee with a 

preliminary finding that shall be based 

on evidence sufficient to establish a 

prima facie case that the permit was 

improvidently issued. The finding shall 

inform the permittee that the permit 

may be suspended or rescinded under 

4VAC25–130–773.21, if the violation is 

not abated or the penalty or fee is not 

paid. 

5. 4VAC25–130–773.21. Improvidently 

Issued Permits; Rescission Procedures 

The corresponding Federal regulation 

for this section is 30 CFR 773.23. 

The DMME proposes to add ‘‘service 

of the notice of’’ after ‘‘After’’ and ‘‘as 

set forth in the notice’’ after ‘‘permit’’ in 

subsection (b). A new subsection (c) is 

added; subsection (e) is renamed to (d) 

and ‘‘or person aggrieved by the 

division’s notice or decision’’ is added 

after ‘‘permittee’’; ‘‘§ 4 VAC 25–130–

775.11 of this chapter and’’ is added 

after ‘‘under’’. As amended, it will read 

as follows: 

If the division, under 4VAC25–130–

773.20(c)(3 4), elects to suspend or 

rescind an improvidently issued permit, 

it shall serve on the permittee a notice 

of proposed suspension and rescission 

which includes the reasons for the 

finding of the division under 4VAC25–

130–773.20(b) and states that: 

(a) Automatic suspension and 

rescission. After a specified period of 

time not to exceed 90 days the permit 

automatically will become suspended, 

and not to exceed 90 days thereafter 

rescinded, unless within those periods 

the permittee submits proof, and the 

division finds, that: 

(1) The finding of the division under 

4VAC25–130–773.20(b) was erroneous; 

(2) The permittee or other person 

responsible has abated the violation on 

which the finding was based, or paid 

the penalty or fee, to the satisfaction of 

the responsible agency; 

(3) The violation, penalty or fee is the 

subject of a good faith appeal, or of an 

abatement plan or payment schedule 

with which the permittee or other 

person responsible is complying to the 

satisfaction of the responsible agency; or 

(4) Since the finding was made, the 

permittee has severed any ownership or 

control link with the person responsible 

for, and does not continue to be 

responsible for, the violation, penalty or 

fee. 

(b) Cessation of operations. After 

service of the notice of permit 

suspension or rescission, the permittee 

shall cease all surface coal mining and 

reclamation operations under the permit 

as set forth in the notice, except for 

violation abatement and for reclamation 

and other environmental protection 

measures as required by the division; 

and 

(c) A person may challenge an 

ownership or control listing or finding 

by submitting to the division a written 

explanation of the basis for the 

challenge, along with any evidence or 

explanatory materials that substantiates 

that the person did not or does not own 

or control the entire surface coal mining 

operation or relevant portion or aspect 

thereof. The person may request that 

any information submitted to the 

division under this section be held as 

confidential, if it is not required to be 

made public under the Act. The 

division shall review the information 

and render a written decision regarding 

the person’s ownership or control listing 

or link within 60 days from receipt of 

the challenge. 

(d) Right to appeal. The permittee or 

person aggrieved by the division’s 

notice or decision may file an appeal for 

administrative review of the notice or 

decision under subparagraph (c) under 


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§ 4VAC25–130–775.11 of this chapter 

and § 2.2–4000 et seq. of the Code of 

Virginia. 

6. 4VAC25–130–774.12. Post-Permit 

Issuance Requirements 

The corresponding Federal regulation 

for this section is 30 CFR 774.11. 

The DMME proposes to add this 

entire new section to the Virginia 

regulations and will read as follows: 

(a) For purposes of future permit 

eligibility determinations and 

enforcement actions, the division will 

utilize the AVS, retrieving and entering 

appropriate data regarding ownership, 

control, and violation information. The 

division shall enter into the AVS—

Information— Within 30 days after—

(1) Permit records ..................................................................................... The permit is issued or subsequent changes made. 

(2) Unabated or uncorrected violations .................................................... The abatement or correction period for a violation expires. 

(3) Unpaid final civil penalties, charges, taxes or fees ............................ The required due payment date. 

(4) Changes in violation status ................................................................. Abatement, correction, or termination of a violation, or a final decision 

from an administrative or judicial review proceeding. 

(b) In the event the permittee is issued 

enforcement action under § 4VAC25–

130–843.11, and fails to timely comply 

with the order’s remedial measures, the 

division shall instruct the permittee to 

provide or update all the information 

required by § 4VAC25–130–778.11. 

However, the permittee would not be 

required to submit this information if a 

court of competent jurisdiction has 

granted a stay of the cessation order and 

the stay remains in effect. 

(c) The permittee shall notify the 

division within 60 days of any addition, 

departure, or change in position of any 

person identified under § 4VAC25–130–

778.13. The permittee shall provide the 

date of such addition, departure, or 

change of such person(s). 

(d) Should the division discover that 

the permittee, or a person listed in an 

ownership or control relationship with 

the permittee, owns or controls an 

operation with an unabated or 

uncorrected violation, it will determine 

whether enforcement action is 

appropriate under Parts 4VAC25–130–

843 and 4VAC25–130–846, or other 

applicable provisions under the Act. 

The division may issue a preliminary 

finding of permit ineligibility under 

§ 45.1–238(C) of the Act, if it finds that 

the person had control relationships and 

violations that would have made the 

person ineligible for a permit under 

§ 4VAC25–130–773.15. The finding 

shall be in accordance with 4VAC25–

130–773.20(c)(3). 

(e) If a determination of permit 

ineligibility is rendered by the division, 

the person would have 30 days from 

service of the written finding to submit 

any information that would tend to 

demonstrate the person’s lack of 

ownership or control of the surface coal 

mining operation. The division would 

issue a final determination regarding the 

permit eligibility within 30 days of 

receiving any information from the 

person or from the expiration date that 

the person could submit the information 

under this subparagraph. A person 

aggrieved by the division’s eligibility 

finding would have the right to request 

review under Part 4VAC25–130–775. 

7. 4VAC25–130–774.17(a). Transfer, 

Assignment, or Sale of Permit Rights 

The corresponding Federal regulation 

for this section is 30 CFR 774.17. 

As amended, it reads as follows: 

(a) General. No transfer, assignment, 

or sale of rights granted by a permit 

shall be made without the prior written 

approval of the division. At its 

discretion, the division may allow a 

prospective successor in interest to 

engage in surface coal mining and 

reclamation operations under the permit 

during the pendency of an application 

for approval of a transfer, assignment, or 

sale of permit rights submitted under 

paragraph (b) of this section, provided 

that the prospective successor in 

interest can demonstrate to the 

satisfaction of the division that 

sufficient bond coverage will remain in 

place. 

8. 4VAC130–778.13. Identification of 

Interests 

The corresponding Federal regulation 

for this section is 30 CFR 778.11. 

An application shall contain the 

following information: 

(a) A statement as to whether the 

applicant and/or the operator, if 

different from the applicant, is a 

corporation, partnership, single 

proprietorship, association, or other 

business entity. 

(b) The name, address, telephone 

number and, as applicable, employer 

identification number of the: 

(1) Applicant; 

(2) Applicant’s resident agent; 

(3) Operator, if different from the 

applicant; and 

(4) Each business entity in the 

applicant’s and operator’s 

organizational structure, up to and 

including the ultimate parent entity of 

the applicant and operator; for every 

such business entity provide the 

required information for every 

president, chief executive officer, 

partner, member, and/or director (or 

persons in similar positions), a 

positions), and every person who owns 

of record 10 percent or more of the 

entity. 

(c) For the applicant and operator, if 

different from the applicant, 

information required by paragraph (d) of 

this section for every: 

(1) Officer. 

(2) Partner. 

(3) Member. 

(4) Director. 

(5) Person performing a function 

similar to a director. 

(6) Person who owns, of record, 10 

percent or more of the applicant or 

operator. 

(d) For each person listed from 

paragraph (c) of this section: 

(1) The person’s name, address, and 

telephone number. 

(2) The person’s position title and 

relationship to the applicant or operator, 

including percentage of ownership and 

location in the organizational structure. 

(3) The date the person began 

functioning in that position. 

(e) A list of all the names under which 

the applicant, operator, partners, or 

principal shareholders, and the 

operator’s partners or principal 

shareholders operate or previously 

operated a surface coal mining 

operation in the United States within a 

five-year period preceding the date of 

submission of the application, including 

the name, address, identifying numbers, 

including employer identification 

number, Federal or State permit number 

and MSHA number, the date of issuance 

of the MSHA number, and the 

regulatory authority. 

(f) For the applicant and operator, if 

different from the applicant, a list of any 

pending permit applications for surface 

coal mining operations filed in the 

United States, identifying each 

application by its application number, 


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jurisdiction, or by other identifying 

information when necessary. 

(g) For any surface coal mining 

operation the applicant and/or operator 

owned or controlled within a five year 

period preceding the submission of the 

permit application, and for any surface 

coal mining operation the applicant 

and/or operator controlled on that date, 

the: 

(1) Permittee’s and operator’s name 

and address, tax identification numbers; 

(2) Name of the regulatory authority 

with jurisdiction over the permit(s) with 

the corresponding Federal or State 

permit number(s) and MSHA number(s); 

and 

(3) The permittee’s and operator’s 

relationship to the operation, including 

the percentage of ownership and 

location in the organizational structure. 

(h) The name and address of each 

legal or equitable owner of record of the 

surface and mineral property to be 

mined, each holder of record of any 

leasehold interest in the property to be 

mined, and any purchaser of record 

under a real estate contract for the 

property to be mined. 

(i) The name and address of each 

owner of record of all property (surface 

and subsurface) contiguous to any part 

of the proposed permit area. 

(j) The Mine Safety and Health 

Administration (MSHA) numbers for all 

mine-associated structures that require 

MSHA approval. 

(k) A statement of all lands, interest 

in lands, options, or pending bids on 

interests held or made by the applicant 

for lands contiguous to the area 

described in the permit application. If 

requested by the applicant, any 

information required by this Paragraph 

which is not on public file pursuant to 

State law shall be held in confidence by 

the division, as provided under 

4VAC25–130–773.13(d)(3)(ii). 

(l) Each application shall contain a 

list of all other licenses and permits 

needed by the applicant to conduct the 

proposed surface mining activities. 

This list shall identify each license 

and permit by—

(1) Type of permit or license; 

(2) Name and address of issuing 

authority; 

(3) Identification numbers of 

applications for those permits or 

licenses or, if issued, the identification 

numbers of the permits or licenses; and 

(4) If a decision has been made, the 

date of approval or disapproval by each 

issuing authority. 

(m) After an applicant is notified that 

his application is approved, but before 

the permit is issued, the applicant shall, 

as applicable, update, correct or indicate 

that no change has occurred in the 

information previously submitted under 

Paragraphs (a) through (d) of this 

section. 

(n) The applicant shall submit the 

information required by this section and 

by 4VAC25–130–778.14 in any 

prescribed OSM format that is issued. 

9. 4VAC25–130–778.14(c). Violation 

Information 

The corresponding Federal regulation 

for this section is 30 CFR 778.14. 

As proposed the amendment reads as 

follows: 

(c) For any violation of a provision of 

the Federal Act or this chapter, or of any 

law, rule or regulation of the United 

States, or of any State law, rule or 

regulation enacted pursuant to Federal 

law, rule or regulation pertaining to air 

or water environmental protection 

incurred in connection with any surface 

coal mining operation, a list of all 

violation notices received by the 

applicant during the three year period 

preceding the application date, and a 

list of all unabated cessation orders and 

unabated air and water quality violation 

notices received prior to the date of the 

application by any surface coal mining 

and reclamation operation owned or 

controlled by either the applicant or 

operator. For each violation notice or 

cessation order reported, the lists shall 

include the following information, as 

applicable: 

10. 4VAC25–130–800.52(a) and (a)(2). 

Bond Forfeiture Reinstatement 

Procedures 

There is no direct Federal counterpart 

regulation for this section. 

As proposed, it reads as follows: 

(a) Any person who owns or controls 

or has owned or controlled any 

operation on which the bond has been 

forfeited or the permit revoked pursuant 

to this chapter or pursuant to Chapters 

15 [repealed], 17 (§ 45.1–198 et seq.) or 

23 [repealed] of Title 45.1 of the Code 

of Virginia and who has not previously 

been reinstated by the Director may 

petition the Director for reinstatement. 

Reinstatement, if granted, shall be under 

such terms and conditions as set forth 

by the Director or his designee. The 

Director or his designee in determining 

the terms and conditions shall consider 

the particular facts and circumstances 

existing in each individual case. 

Reinstatement shall not be available to 

applicants for reinstatement where the 

division finds that the applicant 

controls or has controlled surface coal 

mining and reclamation operations with 

a demonstrated pattern of willful 

violations of the Act of such nature and 

duration and with such resulting 

irreparable damage to the environment 

as to indicate an intent not to comply 

with the Act, in accordance with 

4VAC25–130–773.15(b)(3). As a 

minimum, the applicant for 

reinstatement shall satisfy the following 

requirements: 

* * * * * 

(5) Pay to the Director a reinstatement 

fee of $5,000 assessed by the Director on 

each site forfeited. These fees shall be 

used by the Director to accomplish 

reclamation on other forfeited or 

abandoned surface coal mining 

operations or conduct such other 

investigations, research or abatement 

actions relating to lands and waters 

affected by coal surface mining 

activities. 

(b) Reinstatement by the Director shall 

be a prerequisite to the filing by the 

person (applicant for reinstatement) of 

any new permit application or renewal 

under this chapter or Chapters 15 

[repealed], 17 (§ 45.1–198 et seq.), or 23 

[repealed] of Title 45.1 of the Code of 

Virginia, but shall not affect the person’s 

need to comply with all other 

requirements of said statutes, 

regulations or both promulgated 

thereunder. 

11. 4VAC25–130–801.12(c) and (d).

Entrance Fee and Bond 

There is no direct Federal counterpart 

regulation for this section. 

As proposed, it reads as follows: 

(c) The Director may accept the bond 

of an applicant of an underground 

mining operation without separate 

surety, as provided by 4VAC25–130–

801.13, upon a showing by such 

applicant of a net worth, total assets 

minus total liabilities (certified by an 

independent certified public 

accountant), equivalent to $1 million. 

Such net worth shall be, during the 

existence of the permit, certified 

annually by an independent certified 

public accountant and the certification 

submitted to the division on the 

anniversary date of the permit. 

(d) The Director may accept the bond 

of an applicant of a surface mining 

operation or associated facility without 

separate surety, upon a showing by the 

applicant of those conditions set forth in 

4VAC25–130–801.13(b). The financial 

solvency of the permittee shall be, 

during the existence of the permit, 

certified annually by an independent 

certified public accountant and the 

certification submitted to the division 

by June 1st or by such other date that 

the division may set. 

12. 4VAC25–130–801.13. Self-Bonding 

There is no direct Federal counterpart 

regulation for this section. 

As proposed, it reads as follows: 


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(a) The division may accept a selfbond from the applicant of a proposed 

surface coal mining operation in the 

form of an indemnity agreement. 

(1) The applicant shall provide the: 

(i) Name and address of a suitable 

agent to receive service of process in the 

Commonwealth. 

(ii) Name and address of the certified 

public accountant(s) who prepared the 

statement required by this section. 

(iii) Location of the financial records 

used to prepare the C.P.A. statement 

required by this section. 

(iv) Evidence indicating a history of 

satisfactory continuous operation. 

(2) For a proposed underground 

mining operation, the applicant has a 

net worth, certified by an independent 

certified public accountant in the form 

of an unqualified opinion appended to 

the financial statement submitted, of no 

less than $1 million after total liabilities 

are subtracted from total assets. If the 

applicant is a subsidiary corporation, 

the applicant’s parent organization’s net 

worth need only be certified by the 

independent certified public 

accountant, if the applicant uses or 

includes any assets or liabilities of the 

parent organization in computing or 

arriving at the applicant’s net worth. 

Where the division has a valid reason to 

believe that the permittee’s net worth is 

less than required by this subsection, it 

may require a new certified public 

accountant’s statement and certification. 

(3) The applicant of a proposed 

surface mining operation or associated 

facility shall submit evidence 

substantiating the applicant’s financial 

solvency, with the appropriate financial 

documentation required by Paragraph 

(a)(4) of this section.(4)(i) An indemnity 

agreement must be executed by the 

applicant, and said agreement must also 

be executed by: 

(A) If a corporation, two corporate 

officers who are authorized to sign the 

agreement by a resolution of the board 

of directors, a copy of which shall be 

provided; 

(B) To the extent that the history or 

assets of a parent organization are relied 

upon to make the showings of this Part, 

the parent organization of which it is a 

subsidiary, whether first-tier, secondtier, or further removed, in the form of 

(A) above; 

(C) If the applicant is a partnership, 

all of its general partners and their 

parent organization or principal 

investors; and 

(D) If the applicant is a married 

individual, the applicant’s spouse; 

(ii) Any person who occupies more 

than one of the specified positions shall 

indicate each capacity in which he signs 

the agreement; 

(iii) The agreement shall be a binding 

obligation, jointly and severally, on all 

who execute it; 

(iv) For the purposes of this 

Paragraph, principal investor or parent 

organization means anyone with a 10 

percent or more beneficial ownership 

interest, directly or indirectly, in the 

applicant. 

(b) Whenever a participant in the Pool 

Bond Fund applies for an additional 

permit or permits, the C.P.A. 

certification required by Paragraph (a)(2) 

or (a)(3) of this section shall be updated 

reflecting those prior reclamation 

obligations and self-bonding liabilities 

still in effect. 

(c) If at any time the conditions upon 

which the self-bond was approved no 

longer prevail, the division shall require 

the posting of a surety or collateral bond 

before coal surface mining operations 

may continue. The permittee shall 

immediately notify the division of any 

change in his total liabilities or total 

assets which would jeopardize the 

support of the self-bond. If the permittee 

fails to have sufficient resources to 

support the self-bond, he shall be 

deemed to be without bond coverage in 

violation of 4VAC25–130–800.11(b). 

13. 4VAC25–130–840.14(c)(2). 

Availability of Records 

The corresponding Federal regulation 

for this section is 30 CFR 840.14. 

The DMME is proposing to add ‘‘or 

electronic transmittal’’ after ‘‘mail’’; add 

‘‘the division offices and on its Internet 

site’’ after ‘‘at’’; delete ‘‘a Federal, State 

or local government office in the county 

where the mining is occurring or 

proposed to occur’’ after ‘‘at’’; add ‘‘or 

electronic transmittal’’ after ‘‘mail’’; and 

delete ‘‘A list of government offices 

where information may be inspected 

can be obtained on request by 

contacting the division’s Big Stone Gap 

office.’’ As proposed, it reads as follows: 

(2) At the division’s option in 

accordance with the Virginia Freedom 

of Information Act (Chapter 21 (§ 2.1–

340 et seq.) of Title 2.1 of the Code of 

Virginia), providing copies of subject 

information promptly by mail or 

electronic transmittal at the request of 

any resident of the area where the 

mining is occurring or is proposed to 

occur, provided, that the division shall 

maintain for public inspection, at the 

division offices and on its Internet site, 

a description of the information 

available for mailing or electronic 

transmittal and the procedure for 

obtaining such information. 

This Virginia regulation is amended 

to provide for electronic transmittal of 

information and the maintenance of the 

description of available information 

from the division offices and via the 

agency Internet site. 

The Division has 2 offices located in 

the coalfield counties of Southwest 

Virginia which are readily available to 

the public and an Internet site to serve 

industry, other governmental agencies, 

and the public. 

14. 4VAC25–130–846.2. Definitions 

The corresponding Federal regulation 

for this section is 30 CFR 701.5. 

The following revised definitions are 

being moved to § 4VAC25–130–700.5 

Definitions. 

‘‘Knowingly’’ means that an 

individual knew or had reason to know 

in authorizing, ordering, or carrying out 

an act or omission on the part of a 

corporate permittee that such act or 

omission constituted a violation, failure, 

or refusal. 

‘‘Violation, failure or refusal’’ means: 

(1) A violation of a condition of the 

permit issued pursuant to the Act and 

the regulations promulgated thereunder; 

or, (2) A failure or refusal to comply 

with any order issued under § 45.1–245 

of the Act, or any order incorporated in 

a decision issued by the Director under 

the Act, except an order incorporated in 

a decision issued under § 45.1–246(B) of 

the Act. 

‘‘Willfully’’ means that an individual 

acted (1) either intentionally, 

voluntarily, or consciously, and (2) with 

intentional disregard or plain 

indifference to legal requirements in 

authorizing, ordering, or carrying out a 

corporate permittee’s action or omission 

that constituted a violation, failure, or 

refusal. 

III. Public Comment Procedures 

Under the provisions of 30 CFR 

732.17(h), we are seeking your 

comments on whether the submission 

satisfies the applicable program 

approval criteria of 30 CFR 732.15. If we 

approve the amendment, it will become 

part of the Virginia program. 

Electronic or Written Comments 

If you submit written comments, they 

should be specific, confined to issues 

pertinent to the proposed regulations, 

and explain the reason for any 

recommended change(s). We appreciate 

any and all comments, but those most 

useful and likely to influence decisions 

on the final regulations will be those 

that either involve personal experience 

or include citations to and analyses of 

SMCRA, its legislative history, its 

implementing regulations, case law, 

other pertinent Tribal or Federal laws or 

regulations, technical literature, or other 

relevant publications. We cannot ensure 

that comments received after the close 


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of the comment period (see DATES) or 

sent to an address other than those 

listed above (see ADDRESSES) will be 

included in the docket for this 

rulemaking and considered. 

Public Availability of Comments 

Before including your address, phone 

number, e-mail address, or other 

personal identifying information in your 

comment, you should be aware that 

your entire comment—including your 

personal identifying information—may 

be made publicly available at any time. 

While you may ask us in your comment 

to withhold your personal identifying 

information from public review, we 

cannot guarantee that we will be able to 

do so. 

Public Hearing 

If you wish to speak at the public 

hearing, contact the person listed under 

FOR FURTHER INFORMATION CONTACT by 4 

p.m., local time, on September 15, 2008. 

If you are disabled and need reasonable 

accommodations to attend a public 

hearing, contact the person listed under 

FOR FURTHER INFORMATION CONTACT. We 

will arrange the location and time of the 

hearing with those persons requesting 

the hearing. If no one requests an 

opportunity to speak, we will not hold 

the hearing. 

To assist the transcriber and ensure an 

accurate record, we request, if possible, 

that each person who speaks at a public 

hearing provide us with a written copy 

of his or her comments. The public 

hearing will continue on the specified 

date until everyone scheduled to speak 

has been given an opportunity to be 

heard. If you are in the audience and 

have not been scheduled to speak and 

wish to do so, you will be allowed to 

speak after those who have been 

scheduled. We will end the hearing after 

everyone scheduled to speak and others 

present in the audience who wish to 

speak, have been heard. 

Public Meeting 

If there is limited interest in 

participation in a public hearing, we 

may hold a public meeting rather than 

a public hearing. If you wish to meet 

with us to discuss the submission, 

please request a meeting by contacting 

the person listed under FOR FURTHER

INFORMATION CONTACT. All such meetings 

are open to the public and, if possible, 

we will post notices of meetings at the 

locations listed under ADDRESSES. We 

will make a written summary of each 

meeting a part of the administrative 

record. 

IV. Procedural Determinations 

Executive Order 12630—Takings 

This rule does not have takings 

implications. This determination is 

based on the analysis performed for the 

counterpart Federal regulations. 

Executive Order 12866—Regulatory 

Planning and Review 

This rule is exempted from review by 

the Office of Management and Budget 

(OMB) under Executive Order 12866. 

Executive Order 12988—Civil Justice 

Reform 

The Department of the Interior has 

conducted the reviews required by 

section 3 of Executive Order 12988 and 

has determined that, to the extent 

allowable 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 

the Federal regulations at 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. 

Executive Order 13132—Federalism 

This rule does not have Federalism 

implications. SMCRA delineates the 

roles of the Federal and State 

governments with regard to the 

regulation of surface coal mining and 

reclamation operations. One of the 

purposes of SMCRA is to ‘‘establish a 

nationwide program to protect society 

and the environment from the adverse 

effects of surface coal mining 

operations.’’ Section 503(a)(1) of 

SMCRA requires that State laws 

regulating surface coal mining and 

reclamation operations be ‘‘in 

accordance with’’ the requirements of 

SMCRA. Section 503(a)(7) requires that 

State programs contain rules and 

regulations ‘‘consistent with’’

regulations issued by the Secretary 

pursuant to SMCRA. 

Executive Order 13175—Consultation 

and Coordination With Indian Tribal 

Governments 

In accordance with Executive Order 

13175, we have evaluated the potential 

effects of this rule on Federally 

recognized Indian tribes and have 

determined that the rule does not have 

substantial direct effects on one or more 

Indian tribes, on the relationship 

between the Federal Government and 

Indian tribes, or on the distribution of 

power and responsibilities between the 

Federal Government and Indian Tribes. 

The basis for this determination is that 

our decision is on a State regulatory 

program and does not involve a Federal 

program involving Indian Tribes. 

Executive Order 13211—Regulations 

That Significantly Affect the Supply, 

Distribution, or Use of Energy 

On May 18, 2001, the President issued 

Executive Order 13211 which requires 

agencies to prepare a Statement of 

Energy Effects for a rule that is (1) 

considered significant under Executive 

Order 12866, and (2) likely to have a 

significant adverse effect on the supply, 

distribution, or use of energy. Because 

this rule is exempt from review under 

Executive Order 12866 and is not 

expected to have a significant adverse 

effect on the supply, distribution, or use 

of energy, a Statement of Energy Effects 

is not required. 

National Environmental Policy Act 

This rule does not require an 

environmental impact statement 

because section 702(d) of SMCRA (30 

U.S.C. 1292(d)) provides that agency 

decisions on proposed State regulatory 

program provisions do not constitute a 

major Federal actions within the 

meaning of section 102(2)(C) of the 

National Environmental Policy Act (42 

U.S.C. 4321 et seq.). 

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 

certifies 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 

that is the subject of this rule is based 

on 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. In 

making the determination as to whether 

this rule would have a significant 

economic impact, the Department relied 


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50924 Federal Register / Vol. 73, No. 169 / Friday, August 29, 2008 / Proposed Rules 

upon the data and assumptions for the 

counterpart Federal regulations. 

Small Business Regulatory Enforcement 

Fairness Act 

This rule is not a major rule under 5 

U.S.C. 804(2), the Small Business 

Regulatory Enforcement Fairness Act. 

This rule: (a) Does not have an annual 

effect on the economy of $100 million; 

(b) Will not cause a major increase in 

costs or prices for consumers, 

individual industries, geographic 

regions, or Federal, State or local 

governmental agencies; and (c) Does not 

have significant adverse effects on 

competition, employment, investment, 

productivity, innovation, or the ability 

of U.S. based enterprises to compete 

with foreign-based enterprises. This 

determination is based on the analysis 

performed under various laws and 

executive orders for the counterpart 

Federal regulations. 

Unfunded Mandates 

This rule will not impose an 

unfunded mandate on State, local, or 

tribal governments or the private sector 

of $100 million or more in any given 

year. This determination is based on the 

analysis performed under various laws 

and executive orders for the counterpart 

Federal regulations. 

List of Subjects in 30 CFR Part 946 

Intergovernmental relations, Surface 

mining, Underground mining. 

Dated: July 24, 2008. 

Michael K. Robinson, 

Acting Regional Director. 

[FR Doc. E8–20175 Filed 8–28–08; 8:45 am] 

BILLING CODE 4310–05–P 


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