[Federal Register Volume 72, Number 128 (Thursday, July 5, 2007)]
[Rules and Regulations]
[Pages 36595-36598]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-12979]
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 946
[VA-123-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 an amendment to the Virginia regulatory
program under the Surface Mining Control and Reclamation Act of 1977
(SMCRA or the Act). Virginia is revising its remining regulations to
make three of those provisions permanent by deleting a termination date
of September 30, 2004, from the regulations. The amendment is intended
to render the State regulations consistent with recent amendments to
SMCRA.
EFFECTIVE DATE: July 5, 2007.
[[Page 36596]]
FOR FURTHER INFORMATION CONTACT: Mr. Tim Dieringer, Director, Knoxville
Field Office; Telephone: (276) 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
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 February 13, 2007 (Administrative Record Number VA-
1058), the Virginia Department of Mines, Minerals and Energy (DMME)
submitted an amendment to the Virginia program. In its letter, the DMME
stated that the program amendment revises the Virginia Coal Surface
Mining Reclamation Regulations to reflect the deletion from SMCRA, at
section 510(e), of the termination date of section 510(e) of September
30, 2004.
Section 510 of SMCRA concerns permit approval or denial. Subsection
510(e) provides an exception to the prohibition of subsection (c),
which prohibits the issuance of a permit where any surface coal mining
operation owned or controlled by an applicant is currently in violation
of SMCRA or such other laws referenced at subsection 510(c). Prior to
being amended by the Tax Relief and Health Care Act of 2006, subsection
510(e) provided as follows:
(e) After the date of enactment of this subsection, the
prohibition of subsection (c) shall not apply to a permit
application due to any violation resulting from an unanticipated
event or condition at a surface coal mining operation on lands
eligible for remining under a permit held by the person making such
application. As used in this subsection, the term ``violation'' has
the same meaning as such term has under subsection (c). The
authority of this subsection and section 515(b)(20)(B) shall
terminate on September 30, 2004.
The effect of the deletion of the termination date in the SMCRA
provision quoted above (the entire last sentence was deleted) is
twofold: (1) It makes permanent the authority at subsection 510(e) of
SMCRA to approve a permit application for surface coal mining
operations on lands eligible for remining notwithstanding the existence
of a violation resulting from an unanticipated event or condition at
the site, and (2) it makes permanent the two-year revegetation
responsibility period for lands eligible for remining at subsection
515(b)(20)(B) of SMCRA.
In its amendment, Virginia is deleting the termination date of
September 30, 2004, from three of its program regulations concerning
remining.
We announced receipt of the proposed amendment in the April 9,
2007, Federal Register (72 FR 17449). In the same document, we opened
the public comment period and provided an opportunity for a public
hearing or meeting on the amendment's adequacy. We did not hold a
public hearing or meeting because no one requested one. The public
comment period ended on May 4, 2007. No comments were received.
III. OSM's Findings
1. 4 VAC 25-130-785.25. Lands eligible for remining.
This provision is amended by deleting subsection (c) in its
entirety. Currently, 4 VAC 25-130-785.25 provides as follows:
(a) This section contains permitting requirements to implement 4
VAC 25-130-773.15(b)(4). Any person who submits a permit application
to conduct a surface coal mining operation on lands eligible for
remining must comply with this section.
(b) Any application for a permit under this section shall be
made according to all requirements of this subchapter applicable to
surface coal mining and reclamation operations. In addition, the
application shall:
(1) To the extent not otherwise addressed in the permit
application, identify potential environmental and safety problems
related to prior mining activity at the site and that could be
reasonably anticipated to occur. This identification shall be based
on a due diligence investigation which shall include visual
observations at the site, a record review of past mining at the
site, and environmental sampling tailored to current site
conditions.
(2) With regard to potential environmental and safety problems
referred in subdivision (b)(1) of this section, describe the
mitigative measures that will be taken to ensure that the applicable
reclamation requirements of this chapter can be met.
(c) The requirements of this section shall not apply after
September 30, 2004.
In its submittal letter, the DMME stated that the deletion of
subsection (c) containing the termination date of September 30, 2004,
is intended to reflect the deletion of that same termination date at
subsection 510(e) of SMCRA.
We find that the deletion of the termination date of September 30,
2004, renders 4 VAC 25-130-785.25 consistent with and no less stringent
than Sec. 510(e) of SMCRA and can be approved.
2. 4 VAC 25-130-816.116(c)(2)(ii) and 817.116(c)(2)(ii).
Revegetation; standards for success.
These provisions are amended by deleting the phrase ``included in
permits issued before September 30, 2004, or any renewals thereof'' at
the end of the first sentence in subparts (c)(2)(ii). Currently, 4 VAC
25-130-816.116(c) and 817.116(c) provide as follows:
(c) (1) The period of extended responsibility for successful
revegetation shall begin after the last year of augmented seeding,
fertilizing, irrigation, or other work, excluding husbandry
practices that are approved by the division in accordance with
subdivision (c)(3) of this section.
(2) The period of responsibility shall continue for a period of
not less than:
(i) Five full years except as provided in subdivision (c)(2)(ii)
of this section. The vegetation parameters identified in subsection
(b) of this section for grazing land or pastureland and cropland
shall equal or exceed the approved success standard during the
growing seasons of any two years of the responsibility period,
except the first year. Areas approved for the other uses identified
in subsection (b) of this section shall equal or exceed the
applicable success standard during the growing season of the last
year of the responsibility period.
(ii) Two full years for lands eligible for remining included in
permits issued before September 30, 2004, or any renewals thereof.
To the extent that the success standards are established by
subdivision (b)(5) of this section, the lands shall equal or exceed
the standards during the growing season of the last year of the
responsibility period.
(3) The division may approve selective husbandry practices,
excluding augmented seeding, fertilization, or irrigation, without
extending the period of responsibility for revegetation success and
bond liability, if such practices can be expected to continue as
part of the postmining land use or if discontinuance of the
practices after the liability period expires will not reduce the
probability of permanent revegetation success. Approved practices
shall be normal
[[Page 36597]]
conservation practices within the region for unmined lands having
land uses similar to the approved postmining land use of the
disturbed area, including such practices as disease, pest, and
vermin control; and any pruning, reseeding and/or transplanting
specifically necessitated by such actions.
In its submittal letter, the DMME stated that the deletion of the
September 30, 2004, termination date at subparts (c)(2)(ii) is intended
to reflect the deletion of that same termination date at subsection
510(e) of SMCRA.
We find that the deletion of the termination date of September 30,
2004, renders 4 VAC 25-130-816.116(c)(2)(ii) and 817.116(c)(2)(ii)
consistent with and no less stringent than Sec. 510(e) of SMCRA and
can be approved.
IV. Summary and Disposition of Comments
Public Comments
We asked for public comments on the amendment (Administrative
Record Number VA-1068) and no comments were received.
Federal Agency Comments
Under 30 CFR 732.17(h)(11)(i) and section 503(b) of SMCRA, on
February 22, 2007, we requested comments on the amendments from various
Federal agencies with an actual or potential interest in the Virginia
program (Administrative Record Number VA-1060). The United States
Department of the Interior, Bureau of Land Management responded and
stated that they found no inconsistencies with the proposed changes and
the Federal Laws, which govern mining. The United States Department of
Labor, Mine Safety and Health Administration responded and stated that
there did not seem to be any conflicts with the changes and deemed the
changes appropriate. The United States Department of the Interior, Fish
and Wildlife Service responded and stated that no impacts to Federally
listed or proposed species or Federally designated critical habitat
will occur and was in agreement with the changes made.
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 water quality standards.
Therefore, we did not ask EPA to concur on the amendment.
Under 30 CFR 732.17(h)(II)(i), we requested comments on the
amendment from the EPA (Administrative Record number VA-1060). No
comments were received.
V. OSM's Decision
Based on the above findings, we are approving the amendment sent to
us by Virginia on February 13, 2007. 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
The provisions in the rule based on counterpart Federal regulations
do not have takings implications. This determination is based on the
analysis performed for the counterpart Federal regulations. The
revisions made at the initiative of the State that do not have Federal
counterparts have also been reviewed and a determination made that they
do not have takings implications. This determination is based on the
fact that the provisions are administrative and procedural in nature
and are not expected to have a substantive effect on the regulated
industry.
Executive Order 12866--Regulatory Planning and Review
This rule is exempt from review by the Office of Management and
Budget 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.
The basis for this determination is that our decision is on a State
regulatory program and does not involve Federal regulations involving
Indian lands.
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.
[[Page 36598]]
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 a portion of the
provisions in 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.) because they are 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. The Department of the Interior
also certifies that the provisions in this rule that are not based upon
counterpart Federal regulations 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.). This determination is based on
the fact that the provisions are administrative and procedural in
nature and are not expected to have a substantive effect on the
regulated industry.
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 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 a portion
of the State provisions are 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. For the portion of
the State provisions that is not based upon counterpart Federal
regulations, this determination is based upon the fact that the State
provisions are administrative and procedural in nature and are not
expected to have a substantive effect on the regulated industry.
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 fact that a portion of
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 did not impose an
unfunded mandate. For the portion of the State provisions that is not
based upon counterpart Federal regulations, this determination is based
upon the fact that the State provisions are administrative and
procedural in nature and are not expected to have a substantive effect
on the regulated industry.
List of Subjects in 30 CFR Part 946
Intergovernmental relations, Surface mining, Underground mining.
Dated: May 29, 2007.
Brent Wahlquist,
Regional Director, Appalachian Region.
0
For the reasons set out in the preamble, 30 CFR Part 946 is amended as
set forth below:
PART 946--VIRGINIA
0
1. The authority citation for part 946 continues to read as follows:
Authority: 30 U.S.C. 1201 et seq.
0
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.
* * * * *
------------------------------------------------------------------------
Original amendment submission Date of final
date publication Citation/description
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* * * * * * *
February 13, 2007............ July 5, 2007..... 4 VAC 25-130-
785.25(c)(deleted); 4
VAC 25-130-816.116
and
817.116(c)(2)(ii).
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[FR Doc. E7-12979 Filed 7-3-07; 8:45 am]
BILLING CODE 4310-05-P