[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]
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