[Federal Register Volume 65, Number 213 (Thursday, November 2, 2000)]
[Rules and Regulations]
[Pages 65779-65782]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-28194]
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 946
[VA-118-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 changes to the Virginia Surface Mining
Reclamation Regulations concerning subsidence control. The amendment is
intended to revise the Virginia program to be consistent with the
corresponding Federal regulations.
EFFECTIVE DATE: November 2, 2000.
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 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 June 27, 2000 (Administrative Record Number VA-999)
the Virginia Department of Mines, Minerals and Energy (DMME) submitted
an amendment to the Virginia program. In its letter, the DMME stated
that on December 22, 1999, OSM suspended and modified portions of 30
CFR 784.20 and 30 CFR 817.121 pursuant to an order of the United States
Appeals Court for the District of Columbia. The DMME further stated
that the corresponding sections of the Virginia Surface Mining
Reclamation Regulations also contain the same language the court found
inappropriate and which OSM consequently removed from the Federal
rules. The DMME stated that it proposes to amend its rules to be
consistent with and in the same manner that OSM modified the Federal
regulations. We announced receipt of the proposed amendment in the July
14, 2000, Federal Register (65 FR 43723), invited public comment, and
provided an opportunity for a public hearing on the adequacy of the
proposed amendment. The comment period closed on August 14, 2000. No
one requested to speak at a public hearing, so no hearing was held.
Procedural History of Suspended Federal Rules
The Energy Policy Act was enacted October 24, 1992, Pub. L. 102-
486, 106 Stat. 2776 (1992) (hereinafter, The Energy Policy Act or
EPAct). Section 2504 of that Act, 106 Stat. 2776, 3104, amends SMCRA,
30 U.S.C. 1201 et seq. Section 2504 of EPAct added a new section 720 to
SMCRA. Section 720(a)(1) requires that all underground coal mining
operations conducted after October 24, 1992, promptly repair or
compensate for material damage to non-commercial buildings and occupied
residential dwellings and related structures as a result of subsidence
due to underground coal mining operations. Repair of damage includes
rehabilitation, restoration, or replacement of the structures
identified by section 720(a)(1), and compensation must be provided to
the owners in the full amount of the diminution in value resulting from
the subsidence. Section 720(a)(2) requires prompt replacement of
certain identified water supplies which have been adversely affected by
underground coal mining operations. Under section 720(b), the Secretary
of the Interior was required to promulgate final regulations to
implement the provisions of section 720(a).
On September 24, 1993 (58 FR 50174), OSM published a proposed rule
to amend the regulations applicable to underground coal mining and
control of subsidence-caused damage to lands and structures through the
adoption of a number of permitting requirements and performance
standards. We adopted final regulations on March 31, 1995 (60 FR
16722).
The rules were challenged by the National Mining Association in the
District Court for the District of Columbia and in the U.S. Court of
Appeals for the District of Columbia Circuit. On April 27, 1999, the
U.S. Court of Appeals issued a decision vacating certain portions of
the regulatory provisions of the subsidence regulations. See National
Mining Association v. Babbitt, 173 F.3d 906 (1999). We suspended those
regulatory provisions that are inconsistent with the rationale provided
in the U.S. Court of Appeals' decision. The following Federal
provisions were suspended.
1. 30 CFR 817.121(c)(4)(i)-(iv)
This regulation provided that if damage to any non-commercial
building or occupied residential dwelling or structures related thereto
occurred as a result of earth movement within an area determined by
projecting a specific angle of draw from the outer-most boundary of any
underground mine workings to the surface of the land, a rebuttable
presumption would exist that the permittee caused the damage. The
presumption typically would have applied to a 30-degree angle of draw.
Once the presumption was triggered, the burden of going forward shifted
to the mine operator to offer evidence that the damage was attributable
to another cause. The purpose of this regulatory provision was to set
out a procedure under which damage occurring within a specific area
would be subject to a rebuttable presumption that subsidence from
underground mining was the cause of any surface damage to non-
commercial buildings or occupied residential dwellings and related
structures.
The Court of Appeals vacated, in its entirety, this rule that
established an angle of draw and that created a rebuttable presumption
that damage to EPAct protected structures within an area defined by an
``angle of draw'' was in fact caused by the underground mining
operation. 173 F.3d at 913.
In reviewing the regulation, the Court rejected the Secretary's
contention that the angle of draw concept was reasonably based on
technical and scientific assessments and that it logically connected
the surface area that could be damaged from earth movement to the
underground mining operation.
[[Page 65780]]
The angle of draw provided the basis for establishing the surface area
within which the rebuttable presumption would apply. The Secretary had
explained that the rebuttable presumption merely shifted the burden of
document production to the operator in evaluating whether the damage
was actually caused by the underground mining operation within the
surface area defined by the angle of draw. The Court nevertheless held
that the angle of draw was irrationally broad and that the scientific
facts presented did not support the logical inference that damage to
the surface area would be caused by earth movement from underground
mining within the area.
Based on the conclusion that there was no scientific or technical
basis provided for establishing a rational connection between the angle
of draw and surface area damage, the Court further concluded that the
rebuttable presumption failed. In reviewing the rebuttable presumption
requirement, the Court held ``an evidentiary presumption is `only
permissible if there is sound and rational connection between the
proved and inferred facts, and when proof of one fact renders the
existence of another fact so probable that it is sensible and
timesaving to assume the truth of [the inferred] fact * * * until the
adversary disproves it.' ;'' That is to say, for the presumption to be
permissible, the facts would have to demonstrate that the earth
movement from the underground mining operation ``more likely than not''
caused the damage at the surface. See National Mining Association, 173
F.3d at 906-910. In compliance with the Court of Appeals' decision of
April 27, 1999, we suspended 30 CFR 817.121(c)(4)(i) through (iv).
Paragraph (v) within this section applies generally to the types of
information that must be considered in determining the cause of damage
to an EPAct protected structure and is not limited to or expanded by
the area defined by the angle of draw. Therefore, paragraph (v) remains
in force.
2. Section 784.20(a)(3)
This regulatory provision required, unless the applicant was denied
access for such purposes by the owner, a survey which identified
certain features. First, the survey had to identify the condition of
all non-commercial buildings or occupied residential dwellings and
related structures which were within the area encompassed by the
applicable angle of draw and which might sustain material damage, or
whose reasonably foreseeable use might be diminished, as a result of
mine subsidence. Second, the survey had to identify the quantity and
quality of all drinking, domestic, and residential water supplies
within the proposed permit area and adjacent area that could be
contaminated, diminished, or interrupted by subsidence. In addition,
the applicant was required to notify the owner in writing that denial
of access would remove the rebuttable presumption that subsidence from
the operation caused any postmining damage to protected structures that
occurred within the surface area that corresponded to the angle of draw
for the operation. (See discussion of angle of draw above). This
regulatory provision was challenged insofar as it required a specific
structural condition survey of all EPAct protected structures. The
Court of Appeals vacated the specific structural condition survey
regulatory requirement in its decision on April 27, 1999. In reviewing
the Secretary's requirement, the Court clearly upheld the Secretary's
authority to require a pre-subsidence structural condition survey of
all EPAct protected structures. The Court accepted the Secretary's
explanation that this specific structural condition survey was
necessary, among other requirements, in order to determine whether a
subsidence control plan would be required for the mining operation.
However, because of the Court's ruling on the ``angle of draw''
regulation discussed above, it vacated the requirement for a specific
structural condition survey because it was tied directly to the area
defined by the ``angle of draw.''
In compliance with the Court of Appeals'' decision, we suspended
that portion of 30 CFR 784.20(a)(3) which required a specific
structural condition survey of all EPAct protected structures. The
remainder of this section continues in force to the extent that it
applies to the EPAct protected water supplies survey and any technical
assessments or engineering evaluations necessarily related thereto.
III. Director's Findings
Following, according to SMCRA and the Federal regulations at 30 CFR
732.15 and 732.17, are our findings concerning Virginia's amendment.
4 VAC 25-130-784.20. Subsidence Control Plan
Subsection 4 VAC 25-130-784.20(a)(3) is amended by adding the
following language at the end of subdivision (3).
However, the requirements to perform a survey of the condition
of all noncommercial buildings or occupied residential dwellings and
structures related thereto, that may be materially damaged or for
which the reasonably foreseeable use may be diminished by
subsidence, within the areas encompassed by the applicable angle of
draw is suspended consistent with the Secretary's suspension of the
corresponding federal rule.
As stated above, the Federal regulation at 30 CFR 784.20(a)(3),
which required the performance of a survey of the condition of all
noncommercial buildings or occupied residential dwellings and
structures related thereto, that may be materially damaged or for which
the reasonably foreseeable use may be diminished by subsidence, within
the areas encompassed by the applicable angle of draw is suspended. In
the proposed amendment, Virginia has suspended the State counterpart to
the suspended Federal regulation. Since the language of 4 VAC 25-130-
784.20(a)(3) and the added sentence suspending a portion of the
regulation are substantively identical to the amended Federal
regulation, we find these changes to the provisions at 4 VAC 25-130-
784.20(a)(3) which required a specific structural condition survey of
all EPAct protected structures, are consistent with the suspension of
the Federal regulation discussed above, and do not render the Virginia
program regulations less effective than the Federal regulations.
Therefore, we are approving this amendment.
4 VAC 25-130-817.121. Subsidence Control
Section 4 VAC 25-130-817.121(c)(4), is revised by deleting the
title ``Rebuttable presumption of causation by subsidence,'' and by
deleting paragraphs (c)(4)(i) through (iv). New language is added which
states that ``Section (4)(i) through (iv) are suspended consistent with
the Secretary's suspension of the corresponding Federal rule.'' The
paragraph designation ``(v)'' is deleted.
As amended, section 4 VAC 25-130-817.121(c)(4) provides the
following.
(4) Section [sic] (4)(i) through (iv) are suspended consistent
with the Secretary's suspension of the corresponding federal rule.
Information to be considered in determination of causation. In
determination whether damage to protected structures was caused by
subsidence from underground mining, all relevant and reasonably
available information will be considered by the division.
As discussed above, Federal regulations concerning the rebuttable
presumption at 30 CFR 817.121(c)(4)(i) through (iv) have been
suspended. Since the regulations at 4 VAC 25-130-817.121(c)(4)(i)
through (iv) were previously approved by OSM as the
[[Page 65781]]
State counterparts to the suspended Federal regulations, we find that
the suspension and deletion by Virginia to be consistent with the
suspension of the Federal regulations and do not render the Virginia
program regulations less effective than the Federal regulations.
Therefore, we are approving the amendments.
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 there appears to be no conflict with the MSHA regulations
or policy. The U.S. Fish and Wildlife Service (USFWS) responded and
stated that it foresees no effects from the proposed amendment on the
USFWS trust resources, including endangered and threatened species. The
U.S. Department of Agriculture, Natural Resources Conservation Service
(NRCS) responded and stated its concurrence with the amendments.
Environmental Protection Agency (EPA)
Pursuant to 30 CFR 732.17(h)(11)(ii), OSM is required to obtain the
written 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 rule suspensions Virginia proposed pertain to air or
water quality standards. Nevertheless, we requested EPA's comments on
the proposed amendment.
The EPA responded by letter dated July 11, 2000 (Administrative
Record Number VA-1002) and stated that it has no objections to the
amendments since they are not contrary to the clean Water Act or other
statutes or regulations implemented by the EPA. The EPA also provided
the following general comments. The EPA stated that Virginia's
requirements for subsidence control plans and pre-subsidence surveys
primarily relate to minimizing damage to surface structures and
drinking water supplies, as required by SMCRA. The EPA recommended
that, where there is a potential for subsidence problems associated
with water loss in streams, that stream flow and aquatic life
monitoring of streams in the path of any longwall mining operation also
be included in pre-subsidence surveys. The EPA also recommended that
measures to minimize or prevent subsidence cracks in the stream beds be
implemented to the extent feasible, including the avoidance of mining
under the streams and the detecting and sealing of stream cracks after
subsidence.
These comments are outside the scope of this amendment.
Public Comments
We solicited public comments on the amendment. One commenter
responded and expressed support for the amendments and stated that OSM
should approve them. In response, and for the reasons discussed above
in the findings, we are approving the amendments.
V. Director's Decision
Based on the above findings, we approve the Virginia amendment as
submitted by Virginia on June 27, 2000.
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.
VI. Procedural Determinations
Executive Order 12866--Regulatory Planning and Review
This rule is exempted from review by the Office of Management and
Budget under Executive Order 12866.
Executive Order 12630--Takings
This rule does not have takings implications. This determination is
based on the analysis performed for the counterpart federal regulation.
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, and section 503(a)(7)
requires that state programs contain rules and regulations ``consistent
with'' regulations issued by the Secretary pursuant to SMCRA.
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 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
Section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that a
decision on a proposed state regulatory program provision does not
constitute a major federal action within the meaning of section
102(2)(C) of the National Environmental Policy Act (NEPA) (42 U.S.C.
4332(2)(C)). A determination has been made that such decisions are
categorically excluded from the NEPA process (516 DM 8.4.A).
Paperwork Reduction Act
This rule does not contain information collection requirements that
require approval by the Office of Management and Budget 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
[[Page 65782]]
data and assumptions for the counterpart federal regulation.
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, federal, state, or local government
agencies, or geographic regions.
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 upon the fact that the state submittal
which is the subject of this rule is based upon counterpart federal
regulations for which an analysis was prepared and a determination made
that the federal regulation was not considered a major rule.
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: October 19, 2000.
George C. Miller,
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 by adding a new entry to the table in
chronological order by ``Date of publication of final rule'' to read as
follows:
Sec. 946.15 Approval of Virginia regulatory program amendments.
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Original amendment submission date Date of publication of final rule Citation/description
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June 27, 2000.......................... November 2, 2000......................... 4 VAC 25-130-784.20(a)(3)
amended and suspended in
part; 817.121(c)(4)(i)
through (iv) suspended and
deleted.
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[FR Doc. 00-28194 Filed 11-1-00; 8:45 am]
BILLING CODE 4310-05-P