[Federal Register Volume 70, Number 71 (Thursday, April 14, 2005)]
[Rules and Regulations]
[Pages 19698-19702]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-7495]
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 946
[VA-121-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: We are approving a proposed amendment to the Virginia
regulatory program under the Surface Mining Control and Reclamation Act
of 1977 (SMCRA or the Act). The program amendment revises Virginia's
Coal Surface Mining Reclamation Regulations concerning performance
bonds furnished pursuant to the Coal Surface Mining Reclamation (Pool
Bond) Fund. The amendment is intended to conform the performance bond
release procedures that are applied to Virginia's ``alternative bonding
system'' with bond release procedures used for other performance bonds.
The amendment is also intended to clarify language regarding minimum
bond amounts for phased bond release.
DATES: Effective April 14, 2005.
FOR FURTHER INFORMATION CONTACT: Mr. Robert A. Penn, Director, Big
Stone Gap Field Office; Telephone: (540) 523-4303. Internet:
[email protected].
SUPPLEMENTARY INFORMATION:
I. Background on the Virginia Program
II. Submission of the Amendment
III. OSM's Findings
IV. Summary and Disposition of Comments
V. OSM's Decision
VI. 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 the Act * * *; and
rules and regulations consistent with regulations issued by the
Secretary pursuant to the 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
[[Page 19699]]
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. Submission of the Amendment
By letter dated July 20, 2004 (Administrative Record Number VA-
1036), the Virginia Department of Mines, Minerals and Energy (DMME)
submitted an amendment to the Virginia program. The program amendment
revises Virginia's Coal Surface Mining Reclamation Regulations
concerning performance bonds furnished pursuant to the Coal Surface
Mining Reclamation (Pool Bond) Fund. The amendment also clarifies
language regarding minimum bond amounts set for phased bond release.
We announced receipt of the proposed amendment in the September 14,
2004, Federal Register (69 FR 55375). In the same document, we opened
the public comment period and provided an opportunity for a public
hearing or meeting on the adequacy of the amendment (Administrative
Record Number VA-1043). We did not hold a public hearing or meeting
because no one requested one. The public comment period ended on
October 14, 2004. We received comments from one State agency and three
Federal agencies. By letter dated February 16, 2005, DMME sent us a
letter that clarifies how the State interprets and would implement the
proposed amendment concerning minimum bond amount at 4 VAC 25-130-
801.17 (Administrative Record Number VA-1046).
III. OSM's Findings
Following are the findings we made concerning the amendment under
SMCRA and the Federal regulations at 30 CFR 732.15 and 732.17. We are
approving the amendment.
The Virginia regulations at 4 VAC 25-130 part 801 concern the Coal
Surface Mining Reclamation Fund, penalties, and self-bonding. The
proposed amendment revises 4 VAC 25-130-801.17, concerning bond release
application, and 4 VAC 25-130-801.18, concerning criteria for release
of bond.
In its submittal of this amendment to OSM, the DMME stated that
Virginia is amending its regulations at 4 VAC 25-130-801.17, to conform
the performance bond release procedures that are applied to bonds
furnished pursuant to the Coal Surface Mining Reclamation (Pool Bond)
Fund, Virginia's ``alternative bonding system,'' with bond release
procedures used for other performance bonds. The DMME stated that the
amendment will allow use of a phased bond release for all permitted
coal mine sites in Virginia.
1. 4 VAC 25-130-801.17
This provision is amended by adding and deleting language at 4 VAC
25-130-801.17(a), by deleting 4 VAC 25-130-801.17(a)(1) through (a)(3),
and by deleting 4 VAC 25-130-801.17(b) through (e). As amended, 4 VAC
25-130-801.17 provides as follows:
(a) The permittee participating in the Pool Bond Fund, or any
person authorized to act upon his behalf, may file an application
with the division [Division of Mined Land Reclamation] for the Phase
I, II or III release of the bond furnished in accordance with 4 VAC
25-130-801.12(b) for the permit area or any applicable increment
thereof. The bond release application, the procedural requirements
and the released percentages shall be consistent with the release
criteria of 4 VAC 25-130-800.40. However, in no event shall the
total bond of the permit be less than the minimum amounts
established pursuant to Section 45.1-241 and 45.1-270.3.B of the
Virginia Coal Surface Mining Control and Reclamation Act prior to
completion of Phase III reclamation of the entire permit area.
We find that the proposed amendments are no less effective than the
Federal regulations and can be approved for the following reasons. The
State's rules at 4 VAC 25-130-801.17(a) concern bond release
application procedures for Pool Bond Fund participants. Virginia has
added the following requirement at 4 VAC 25-130-801.17(a):
The bond release application, the procedural requirements and
the released percentages shall be consistent with the release
criteria of 4 VAC 25-130-800.40.
The Virginia regulations at 4 VAC 25-130-800.40 concern the
requirements to release performance bonds and are substantively
identical to the Federal performance bond release requirements at 30
CFR 800.40. Under the revised provision quoted directly above, the bond
release procedures for Pool Bond Fund participants will be the
procedures specified at 4 VAC 25-130-800.40. With this change, all
Virginia permittees are subject to the bond release requirements at 4
VAC 25-130-800.40. We find the proposed change is consistent with and
no less effective than 30 CFR 800.40 and can be approved.
Virginia has also proposed to delete the existing bond release
procedures at 4 VAC 25-130-801.17 that were specific to Pool Bond Fund
permits. We find that the addition of the requirement that Pool Bond
Fund participants must comply with the bond release procedures at 4 VAC
25-130-800.40 renders the deleted language at 4 VAC 25-130-801.17
unnecessary. Therefore, we find that the deletion of that language does
not render 4 VAC 25-130-801.17 less effective than the Federal bond
release requirements at 30 CFR 800.40 and can be approved.
Virginia has added language at 4 VAC 25-130-801.17(a), which
provides that a permittee may file an application for the ``Phase I, II
or III release'' of the bond for ``the permit area or any applicable''
increment ``thereof.'' We find these changes to be consistent with and
no less effective than the Federal performance bond requirements at 30
CFR 800.40(c) which allows the release of all or part of a performance
bond for the permit/increment area in accordance with a three-phase
schedule of reclamation and can be approved.
Virginia also amended 4 VAC 25-130-801.17(a) by revising language
that previously stated that in no event shall the total bond of the
permit be less than the minimum amounts established pursuant to 4 VAC
25-130-801.12(b) prior to completion of the required reclamation. The
provision was revised by deleting the regulatory citation and adding in
its place the citations of two Virginia Coal Surface Mining Control and
Reclamation Act (VA Code ) provisions and additional language. The
amended language provides as follows:
However, in no event shall the total bond of the permit be less
than the minimum amounts established pursuant to Sections 45.1-241
and 45.1-270.3B of the Virginia Coal Surface Mining Control Act
prior to completion of Phase III reclamation of the entire permit
area.
During our review of this provision, it was unclear as to what the
minimum bond amount is pursuant to Sections 45.1-241 and 45.1-270.3.B
of the VA Code prior to completion of Phase III reclamation of the
entire permit area because VA Code Sections 45.1-241 and 45.1-270.3.B
contain different minimum bond amounts. Therefore, we asked DMME to
explain which minimum bond amount would apply (Administrative Record
Number VA-1045).
In its February 16, 2005, letter, the DMME clarified the meaning of
the proposed minimum bond amount language at 4 VAC 25-130-801.17(a),
and how the State will implement that provision. Specifically, the DMME
stated that VA Code Section 45.1-270 applies to bond amounts for new
permits or new acreage in the Pool Bond, while VA Code 45.1-241
authorizes the Division of Mined Land Reclamation (DMLR) to determine
the
[[Page 19700]]
required bond amount, with a $10,000 minimum to be retained after
completion of Phase II reclamation. However, the actual bond amount to
be retained will be determined on a case-by-case basis, based on the
amount needed to assure the completion of reclamation work if the work
must be performed by DMLR in the event of bond forfeiture. The amount
of bond to be released on completion of Phase II reclamation will be
determined based upon any remaining reclamation and revegetation costs
to be expected.
The DMME also stated that implementation of this procedure (minimum
bond amount of $10,000 as described above) would not cause a negative
impact on the reclamation fund. Phase II bond release will only be
approved, the DMME stated, upon meeting the success standards required
for a Phase II bond release.
Section 509(a) of SMCRA provides that the amount of bond shall be
sufficient to assure the completion of the reclamation plan if the work
has to be performed by the regulatory authority in the event of
forfeiture, and in no case shall the total bond initially posted for
the entire area under one permit be less than $10,000. Virginia's
approved statutory counterpart to 509(a) of SMCRA is VA Code Section
45.1-241.A. All Pool Bond Fund participants must comply with the
applicable parts of Section 45.1-241. See 4 VAC 25-130-801.11(b)(2).
The Federal regulations at 30 CFR 800.40(c) do not specify a dollar
amount that the regulatory authority must retain after completion of
Phase II reclamation, but, instead, require an amount that ``would be
sufficient to cover the cost of reestablishing revegetation.''
For the reasons discussed above, we find that the proposed revision
to the State's minimum bond amount language at 4 VAC 25-130-801.17(a)
is not inconsistent with the Federal bond release provisions at 30 CFR
800.40 and can be approved.
2. 4 VAC 25-130-801.18
This provision is amended by adding and deleting language at 4 VAC
25-130-801.18(a) and (b), by deleting 4 VAC 25-130-801.18(c), and by
amending and re-numbering existing 4 VAC 25-130-801.18(d) as 4 VAC 25-
130-801.18(c). As amended, 4 VAC 25-130-801.18 provides as follows:
(a) The division shall release bond furnished in accordance with
Section 45.1-241 and 45.1-270.3 of the Virginia Coal Surface Mining
Control and Reclamation Act through the standards specified at 4 VAC
25-130-800.40 upon receipt of an application for Phase I, II or III
release.
(b) The division shall terminate jurisdiction for the permit
area, or any increment thereof upon approval of the Phase III bond
release for that area.
(c) In the event a forfeiture occurs the division may, after
utilizing the available bond monies, utilize the Fund [Pool Bond
Fund] as necessary to complete reclamation liabilities for the
permit area.
Virginia has amended 4 VAC 25-130-801.18, concerning criteria for
the release of bond, by deleting most of the existing language
concerning bond release procedures specific only to Pool Bond Fund
permits. In place of the deleted language, Virginia added language that
specifies that release must be in accordance with the bond release
standards at 4 VAC 25-130-800.40. We find that the proposed changes at
4 VAC 25-130-801.18(a) are consistent with and no less effective than
the Federal performance bond requirements at 30 CFR 800.40(c) (which
allows for phased bond release) and can be approved.
Virginia added language at 4 VAC 25-130-801.18(b) which provides
that the Division of Mined Land Reclamation ``shall terminate
jurisdiction for the permit area, or any increment thereof upon
approval of the Phase III bond release for that area.'' The Federal
regulations at 30 CFR 700.11(d)(1)(ii) provide that the regulatory
authority may terminate its jurisdiction over the reclaimed site of a
completed surface coal mining and reclamation operation, or increment
thereof, when the regulatory authority has made a final decision in
accordance with the State program counterpart to 30 CFR part 800,
concerning performance bonds, to release the performance bond fully. If
a regulatory authority chooses to terminate jurisdiction, then the
Federal regulations require that the regulatory authority must have the
ability to reassert its jurisdiction in certain circumstances.
Virginia, at 4 VAC 25-130-700.11(c)(2), as part of its approved
program, already provides for reassertion of its jurisdiction in
certain circumstances. Thus, when 4 VAC 25-130-801.18(b) and 4 VAC 25-
130-700.11(c)(2) are read in conjunction with each other, we find that
this requirement is no less effective than 30 CFR 700.11(d)(1)(ii) of
the Federal regulations. Therefore, this provision can be approved.
Virginia deleted the words ``after partial bond release'' at former
4 VAC 25-130-801.18(d) (now 801.18(c)). The deletion is intended to
clarify that a bond may be for the entire permit area or an increment
thereof. This revision renders the provision consistent with revisions
to 4 VAC 25-130-801.17, which clarify that bond furnished under 4 VAC
25-130-801.12 may be for an entire permit area or for an increment
thereof. We find that this revision is consistent with and no less
effective than the Federal regulations at 30 CFR 800.50(c), concerning
forfeiture of bonds, and with 30 CFR 800.11(e), concerning alternate
bonding systems. The Federal regulations at 30 CFR 800.50(c) provide
that upon default, the regulatory authority may cause the forfeiture of
any and all bonds deposited to complete reclamation for which the bonds
were posted. The Federal regulations at 30 CFR 800.11(e) provide that
alternative bonding systems must assure that the regulatory authority
will have available sufficient money to complete the reclamation plan
for any areas which may be in default at any time. Therefore, the
amendments at 4 VAC 25-130-801.18(b) can be approved.
IV. Summary and Disposition of Comments
Public Comments
The Commonwealth of Virginia, Department of Historic Resources
responded and stated that it had reviewed the materials submitted and
has no objection to the proposed amendment (Administrative Record
Number VA-1040).
Federal Agency Comments
Under 30 CFR 732.17(h)(11)(i) and section 503(b) of SMCRA, on
August 2, 2004, we requested comments on the amendments from various
Federal agencies with an actual or potential interest in the Virginia
program (Administrative Record Number VA-1038). The United States
Department of Labor, Mine Safety and Health Administration (MSHA)
responded and stated that it has no comments on the proposed amendment
(Administrative Record Number VA-1042). The United States Bureau of
Land Management (BLM) reviewed the proposed amendments but provided no
comments on the proposed amendments (Administrative Record Number VA-
1039).
Environmental Protection Agency (EPA) Concurrence and Comments
Under 30 CFR 732.17(h)(11)(ii), we are required to get a written
concurrence from EPA for those provisions of the program amendment that
relate to air or water quality standards issued 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 revisions that Virginia proposed to
make in this amendment pertain to air or
[[Page 19701]]
water quality standards. Therefore, we did not ask EPA to concur on the
amendment. Under 30 CFR 732.17(h)(11)(i), we requested comments on the
amendment from EPA (Administrative Record Number WV-1038).
The EPA responded by letter dated August 27, 2004 (Administrative
Record Number VA-1041), and stated that there are no apparent
inconsistencies with the Clean Water Act or other statutes or
regulations under EPA's jurisdiction. EPA also stated that, regarding
bond release, its main concern is that there must be available funds--
whether in individual performance bonds, a bond pool, other types of
financial assurance, or a combination of these--to guarantee
remediation of any land disturbed or water impaired in case the
responsible party goes out of business. EPA offered no other comments.
We agree with EPA's comment that there must be sufficient bond to
guarantee reclamation of any land disturbed or water impaired in case
the permittee is unable to complete the reclamation. The proposed
amendment to 4 VAC 25-130-801.18 specifically requires that in the
event of a bond forfeiture, Virginia shall first use available bonds
and then money from the Pool Bond Fund to complete reclamation of the
permit area.
V. OSM's Decision
Based on the above findings, we approve the amendment sent to us by
Virginia on July 20, 2004.
To implement this decision, we are amending the Federal regulations
at 30 CFR part 946, which codify decisions concerning the Virginia
program. We find that good cause exists under 5 U.S.C. 553(d)(3) to
make this final rule effective immediately. Section 503(a) of SMCRA
requires that the State's program demonstrate that the State has the
capability of carrying out the provisions of the Act and meeting its
purposes. Making this regulation effective immediately will expedite
that process. SMCRA requires consistency of State and Federal
standards.
VI. Procedural Determinations
Executive Order 12630--Takings
This rule does not have takings implications. This determination is
based upon the analysis performed under various laws and executive
orders for the counterpart Federal regulations.
Executive Order 12866--Regulatory Planning and Review
This rule is exempt 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 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 because
each 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, 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 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.
This final rule applies only to the Virginia program and therefore does
not affect tribal programs.
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 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 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, 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. 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.
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; and (c) does not
[[Page 19702]]
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 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 upon 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: March 14, 2005.
Brent Wahlquist,
Regional Director, Appalachian Region.
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For the reasons set out in the preamble, 30 CFR part 946 is amended as
set forth below:
PART 946--VIRGINIA
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1. The authority citation for part 946 continues to read as follows:
Authority: 30 U.S.C. 1201 et seq.
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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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July 20, 2004...................... April 14, 2005............ 4 VAC 25-130-801.17 and 801.18.
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[FR Doc. 05-7495 Filed 4-13-05; 8:45 am]
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