[Federal Register Volume 64, Number 247 (Monday, December 27, 1999)]
[Rules and Regulations]
[Pages 72277-72280]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-33464]
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 946
[VA-116-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 an amendment to the Virginia permanent
regulatory program (hereinafter referred to as the Virginia program)
under the Surface Mining Control and Reclamation Act of 1977 (SMCRA).
The amendment consists of the following: a statutory change to the
Virginia Act at section 45.1-235 C as enacted in the 1999 session of
the Virginia General Assembly; regulation changes at section 4 VAC 25-
130-700.5 to the definitions of ``government financed construction''
and ``qualified laboratory;'' and regulation changes to section 4 VAC
25-130 Part 795 concerning the small operator assistance program
(SOAP). The amendment is intended to revise the Virginia program to be
consistent with the corresponding Federal provisions.
EFFECTIVE DATE: December 27, 1999.
FOR FURTHER INFORMATION CONTACT: Mr. Robert A. Penn, Director, Big
Stone Gap Field Office, Office of Surface Mining Reclamation and
Enforcement, 1941 Neeley Road, Suite 201, Compartment 116, Big Stone
Gap, Virginia 24219, Telephone: (540) 523-4303.
SUPPLEMENTARY INFORMATION:
I. Background on the Virginia Program.
II. Submission of the Amendment.
III. Director's Findings.
IV. Summary and Disposition of Comments.
V. Director's Decision.
VI. Procedural Determinations.
I. Background on the Virginia Program
On December 15, 1981, the Secretary of the Interior conditionally
approved the Virginia program. You can find background information on
the Virginia program, including the Secretary's
[[Page 72278]]
findings, the disposition of comments, and the conditions of approval
in the December 15, 1981, Federal Register (46 FR 61085-61115). You can
find later actions on conditions of approval and program amendments at
30 CFR 946.11, 946.12, 946.13, 946.15, and 946.16.
II. Submission of the Amendment
By letter dated August 2, 1999 (Administrative Record No. VA-978),
the Virginia Department of Mines, Minerals and Energy (DMME) submitted
an amendment to the Virginia program. This amendment is the State's
response to changes made to the Federal SOAP regulations at 30 CFR part
795, and to the Federal definition of ``government-financed
construction'' at 30 CFR 707.5.
We announced receipt of the proposed amendment in the August 20,
1999, Federal Register (64 FR 45489), invited public comment, and
provided an opportunity for a public hearing on the adequacy of the
proposed amendment. The comment period closed on September 20, 1999. No
one requested to speak at a public hearing, so no hearing was held.
By letters dated October 1, 1999 (Administrative Record Number VA-
987), and October 28, 1999 (Administrative Record Number VA-993) the
DMME submitted amendments to 4 VAC 25-130-795.11(b). We reopened the
public comment period on November 15, 1999 (64 FR 61805), and invited
public comment on the additional amendments. The comment period closed
on November 30, 1999.
III. Director's Findings
Following, according to SMCRA and the Federal regulations at 30 CFR
732.15 and 732.17, are our findings concerning the amendment. Any
revisions that we do not specifically discuss below concern
nonsubstantive wording changes or revised paragraph notations to
reflect organizational changes that result from this amendment.
Statute
Section 45.1-235 of the Code of Virginia.
Subsection 45.1-235 C, concerning SOAP, is amended by deleting the
existing language and adding in its place the following language.
To the extent that funds are available from the federal Office
of Surface Mining, the Director shall provide for permit application
assistance to small operators as provided in 507 (c) and (h) of the
federal act. Such assistance shall be provided in accordance with
regulations adopted by the Director.
We find this provision to be consistent with the Federal
regulations at 30 CFR 795.5 which provides that a State intending to
Administer a SOAP program under a grant from OSM may submit a grant
application to OSM for funding of the program under the procedures of
30 CFR part 735. Therefore, this provision can be approved.
Regulations
1. 4 VAC 25-130-700.5 Definitions
The definition of ``government-financed construction'' is amended
to provide for less than 50 percent government funding when the
construction is an approved Abandoned Mine Lands (AML) reclamation
project under Title IV of SMCRA. As amended, ``government financed
construction'' means construction funded 50 percent or more by funds
appropriated from a government financing agency's budget or obtained
from general revenue bonds. Funding at less than 50 percent may qualify
if the construction is undertaken as an approved reclamation project
under Title IV of the Federal Act. Construction funded through
government financing agency guarantees, insurance, loans, funds
obtained through industrial revenue bonds or their equivalent, or in-
kind payments does not qualify as government-financed construction.
The Federal definition of ``government financed construction'' at
30 CFR 707.5 was amended on February 12, 1999 (64 FR 7469). As amended,
``government-financed construction'' means construction funded 50
percent or more by funds appropriated from a government financing
agency's budget or obtained from general revenue bonds. Funding at less
than 50 percent may qualify if the construction is undertaken as an
approved reclamation project under Title IV of SMCRA. Construction
funded through government financing agency guarantees, insurance,
loans, funds obtained through industrial revenue bonds or their
equivalent, or in-kind payments does not qualify as government-financed
construction. We find that the revised Virginia definition is
substantively identical to and no less effective than the counterpart
Federal definition at 30 CFR 707.5 and can be approved.
The definition of ``qualified laboratory'' is amended to add the
phrase ``or other services as specified at 4 VAC 25-130-795.9.'' With
this addition, ``qualified laboratory'' means a designated public
agency, private firm, institution, or analytical laboratory which can
prepare the required determination of probable hydrologic consequences
or statement of results of test borings or core samplings or other
services as specified at 4 VAC 25-130-795.9 under the SOAP program and
which meets the standards of 4 VAC 25-130-795.10. We find that this
revised definition is substantively identical to and no less effective
than the counterpart Federal definition at 30 CFR 795.3 and can be
approved.
2. 4 VAC 25-130-795.1 Scope and Purpose
This provision is amended by deleting the words ``program
administrator'' and replacing those words with the word ``Division.''
In effect, the ``Division'' (the DMME) is the program administrator.
Therefore, we find that this change does not render the Virginia
program less effective than the Federal SOAP provisions at 30 CFR Part
795 and can be approved.
3. 4 VAC 25-130-795.6 Eligibility for Assistance
This provision is amended at subdivision 795.6(a)(2) by changing
the qualifying annual tonnage limit from 100,000 tons to 300,000 tons
and deleting language that was also deleted from the Federal rules in
1994. In addition, at subdivisions 795.6(a)(2)(i) and (ii), the pro
rata share is increased from 5 percent to 10 percent. We find that with
these changes, the State provision is substantively identical to and no
less effective than the counterpart Federal regulation at 30 CFR
795.6(a)(2) and can be approved.
4. 4 VAC 25-130-795.7 Filing for Assistance
This provision is amended at subdivision 795.7(e) by deleting
subdivisions 795.7(e)(2) and (5), and renumbering the remaining
provisions. Deleted subdivision 795.7(e)(2) required the names of
property owners in the affected and adjacent areas. Deleted subdivision
795.7(e)(5) required the location of existing structures and developed
water resources within the affected and adjacent areas. These deletions
are not requirements under 30 CFR 795.7(e). We find that, as amended,
subdivision 795.7(e) is substantively identical to and no less
effective than the counterpart Federal regulations at 30 CFR 795.7(e)
and can be approved.
5. 4 VAC 25-130-795.8 Application Approval and Notice
The sole sentence of this provision is deleted and replaced with
the following. New subdivision 795.8(a) provides that if the Division
finds the applicant eligible, the Division shall inform the applicant
in writing that the application is approved. New subdivision 795.8(b)
provides that if the Division finds the
[[Page 72279]]
applicant ineligible, the Division shall inform the applicant in
writing that the application is denied and shall state the reasons for
denial. We find that as amended, this provision is substantively
identical to and no less effective than the counterpart Federal
regulation at 30 CFR 795.8 and can be approved.
6. 4 VAC 25-130-795.9 Program Services and Data Requirements
In addition to non-substantive changes, the following changes are
made to this provision. At subdivision 795.9(a), the phrase ``and
provide other services'' is added. With this change, a ``qualified
laboratory'' may be paid for other services in addition to the
determination and statement referenced in subdivision 795.9(b).
At subdivision 795.9(b)(1), the phrase ``including the engineering
analysis and designs necessary for the determination'' is added. Also,
the citation ``4 VAC 25-130-784.14(g)'' is changed to ``* * *
784.14(e).''
At subdivision 795.9(b)(2), the words ``drilling and'' are added
immediately following the first word of the sentence.
New subdivisions 795.9(b)(3), (4), (5), and (6) are added. New
795.9(b)(3), provides for the development of cross-section maps and
plans required by 4 VAC 25-130-779.25 and 783.25. New 795.9(b)(4)
provides for the collection of archaeological and historic information
and related plans required by 4 VAC 25-130-779.12(b), 783.12(b),
780.31, 784.17, and any other archaeological and historic information
required by the Director. New 795.9(b)(5) provides for pre blast
surveys required by 4 VAC 25-130-780.13. New 795.9(b)(6) provides for
the collection of site-specific resources information, the production
of protection and enhancement plans for fish and wildlife habitats
required by 4 VAC 25-130-780.16 and 784.21, and information and plans
for any other environmental values required by the Division under the
Act.
We find that with these changes, the State provision is
substantively identical to and no less effective than the counterpart
Federal provision at 30 CFR 795.9 and can be approved.
7. 4 VAC 25-130-795.10 Qualified Laboratories
Subdivision 4 VAC 25-130-795.10(a)(5) is amended by adding language
which provides that other appropriate methods or guidelines for data
acquisition may be approved by the Division. Subdivision 795.10(b) is
amended to provide that subcontractors may be used to provide some of
the required services provided their use is identified at the time a
determination is made that a firm is qualified and they meet
requirements specified by the Division. Prior to this amendment,
subdivision 795.10(b) provided that subcontractors had to meet all
applicable requirements for area of specialization pursuant to the
program and this section. Subdivisions 795.10(c) and (d) are deleted.
Subdivision 795.10(c) concerned the qualification of out-of-state
firms. Subdivision 795.10(d) provided that review and approval of all
laboratory qualifications would be made every 12 months. These
deletions are not requirements under 30 CFR 795.10.
We find that with these changes, the State provision is
substantively identical to and no less effective than the counterpart
Federal provision at 30 CFR 795.10 and can be approved.
8. 4 VAC 25-130-795.11 Assistance Funding
In subdivision 4 VAC 25-130-795.11(b), the phrase ``is authorized
to'' is deleted and replaced by the word ``shall.'' In effect, this
change requires the DMME to establish a funding formula to be used for
allocating funds to eligible small operators if the available funds are
less than those required to provide the services pursuant to 4 VAC 25-
130-795. We find that, as amended, this provision is substantively
identical to and no less effective than the Federal regulations at 30
CFR 795.11(b) and can be approved.
In addition, Virginia submitted the funding formula it intends to
use if the available funds are less than those required to provide the
services pursuant to 4 VAC 25-130-795. Virginia stated that ``[s]hould
available funds ever be insufficient to provide all requested and
appropriate assistance to eligible small operators, DMME will provide
services on a first come, first serve basis. The funds will be used in
order of the application dates for the requested assistance.''
The State's funding formula is ``an equitable distribution of
Federal funds if such funds are insufficient to provide services for
all eligible operators.'' 48 FR 2261, 2271 (January 18, 1983). Thus, we
find that the formula is consistent with the Federal regulations at 30
CFR 795.11(b) and can be approved.
9. 4 VAC 25-130-795.12 Applicant Liability
In subdivision 4 VAC 25-130-795.12(a), the term ``applicant'' is
deleted and replaced by the phrase ``coal operator who has received
assistance pursuant to 4 VAC 25-130-795.9.'' Also, the phrase
``laboratory services performed pursuant to this Part'' is changed to
read ``services rendered.''
Subdivision 795.12(a)(2) is amended to change the 100,000 ton limit
to 300,000 tons. This provision is also amended to provide that the
tonnage will be determined during the 12 months immediately following
the date on which the operator is issued the surface coal mining and
reclamation permit. Prior to this change, the tonnage was determined
during any consecutive 12-month period either during the term of the
permit for which assistance is provided or during the first 5 years
after issuance of the permit whichever is shorter.
Subdivision 795.12(a)(3) is amended to change the 100,000 ton limit
to 300,000 tons. This provision is also amended to provide that if the
mining rights granted under the permit are sold, transferred or
assigned to another person, the tonnage will be determined during the
12 months immediately following the date on which the permit was
originally issued. Prior to this change, the tonnage was determined
during any 12-month period of the remaining term of the permit. The
deleted language was also deleted from the Federal regulations in 1994.
Subdivisions 4 VAC 25-130-795.12(b) and (c) are deleted.
Subdivision 795.12(b) concerned the submission of notarized production
reports. Subdivision 795.12(c) defined the term ``attributed
production.'' These deleted subsections are not requirements under 30
CFR 795.12.
We find that with these changes, the State provision addresses all
the provisions of and is no less effective than 30 CFR 795.12 and can
be approved.
IV. Summary and Disposition of Comments
Federal Agency Comments
According to 30 CFR 732.17(h)(11)(i), we solicited comments on the
proposed amendment from various Federal agencies with an actual or
potential interest in the Virginia program. The U.S. Department of
Labor, Mine Safety and Health Administration (MSHA) responded and
stated that the amendments are appropriate and there appears to be no
conflict with MSHA regulations.
Public Comments
We solicited public comments on the amendment. No comments were
received.
Environmental Protection Agency (EPA)
Pursuant to 30 CFR 732.17(h)(11)(ii), OSM is required to obtain the
written
[[Page 72280]]
concurrence of the EPA with respect to any provisions of the State
program amendment that relate to air or water quality standards
promulgated under the authority of the Clean Water Act (33 U.S.C. 1251
et seq.) or the Clean Air Act (42 U.S.C. 7401 et seq.).
None of the amendments that Virginia proposed pertain to air or
water quality standards. Therefore, EPA's concurrence with the proposed
amendment is not necessary.
Pursuant to 732.17(h)(11)(I), we solicited comments on the proposed
amendment from EPA. The EPA did not provide any comments.
V. Director's Decision
Based on the above findings, we approve the amendments submitted by
Virginia on August 2, 1999, and amended on October 1 and October 28,
1999.
To implement this decision, we are amending the Federal regulations
at 30 CFR part 946 which codifies decisions concerning the Virginia
program. We are making this final rule effective immediately to
expedite the State program amendment process, and to encourage Virginia
to bring its program into conformity with the Federal standards without
undue delay. Consistency of State and Federal standards is required by
SMCRA.
VI. Procedural Determinations
Executive Order 12866
This rule is exempted from review by the Office of Management and
Budget (OMB) under Executive Order 12866 (Regulatory Planning and
Review).
Executive Order 12988
The Department of the Interior has conducted the reviews required
by section 3 of Executive Order 12988 (Civil Justice Reform) and has
determined that, to the extent allowed by law, this rule meets the
applicable standards of subsections (a) and (b) of that section.
However, these standards are not applicable to the actual language of
State regulatory programs and program amendments since each such
program is drafted and promulgated by a specific State, not by OSM.
Under 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: December 15, 1999.
H. Vann Weaver,
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. Section 946.15 is amended in the table by adding a new entry in
chronological order by ``Date of Final Publication'' to read as
follows:
Sec. 946.15 Approval of Virginia regulatory program amendments.
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Original amendment submission date Date of final publication Citation/description
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* * * * * *
*
August 2, 1999.......................... December 27, 1999.......... Statute: 45.1-235 C of the Code of
Virginia. Regulations: 4 VAC 25-130-
700.5; 795.1; 795.6(a)(2); 795.7(e)(2)
[deleted], and (e)(5) [deleted];
795.8(a) and (b); 795.9(a), (b)(1)
through (b)(6); 795.10(a)(5), (b), (c)
[deleted] and (d) [deleted]; 795.11(b);
795.12(a), (a)(2), (a)(3), (b)
[deleted], and (c) [deleted].
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[FR Doc. 99-33464 Filed 12-23-99; 8:45 am]
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