[Federal Register Volume 73, Number 169 (Friday, August 29, 2008)]
[Proposed Rules]
[Pages 50915-50924]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-20175]
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 946
[VA-126-FOR; Docket ID OSM-2008-0012]
Virginia Regulatory Program
AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM),
Interior.
ACTION: Proposed rule; public comment period and opportunity for public
hearing on proposed amendment.
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SUMMARY: We are announcing receipt of a proposed amendment to the
Virginia regulatory program under the Surface Mining Control and
Reclamation Act of 1977 (SMCRA or the Act). The amendment revises the
Virginia Coal Surface Mining Reclamation Regulations pertaining to
ownership and control, valid existing rights, self-bonding, and
availability of records. Virginia intends to revise its program to be
consistent with the corresponding Federal regulations and SMCRA and is
responding, in part, to 30 CFR Part 732 letters.
This document gives the times and locations that the Virginia
program and this submittal are available for your inspection, the
comment period during which you may submit written comments, and the
procedures that we will follow for the public hearing, if one is
requested.
DATES: We will accept written comments until 4 p.m., local time,
September 29, 2008. If requested, we will hold a public hearing on
September 23, 2008. We will accept requests to speak until 4 p.m.,
e.s.t., on September 15, 2008.
ADDRESSES: You may submit comments, identified by ``VA-126-FOR/OSM-
2008-0012'' by any of the following methods:
E-mail: [email protected].
Mail/Hand Delivery: Earl Bandy, Knoxville Field Office,
Office of Surface Mining Reclamation and Enforcement, 710 Locust
Street, 2nd Floor, Knoxville, Tennessee 37902, Telephone: (865) 545-
4103.
Federal eRulemaking Portal: http://www.regulations.gov.
The proposed rule has been assigned Docket ID OSM-2008-0012. If you
would like to submit comments through the Federal eRulemaking Portal,
go to http://www.regulations.gov and do the following. Click on the
``Advanced Docket Search'' button on the right side of the screen. Type
in the Docket ID OSM-2008-0012 and click the ``Submit'' button at the
bottom of the page. The next screen will display the Docket Search
Results for the rulemaking. If you click on OSM-2008-0012, you can view
the proposed rule and submit a comment. You can also view supporting
material and any comments submitted by others.
Instructions: All submissions received must include the agency
docket number ``OSM-2008-0012/VA-126-FOR'' for this rulemaking. For
detailed instructions on submitting comments and additional information
on the rulemaking process, see the ``Public Comment Procedures''
section in this document. You may also request to speak at a public
hearing by any of the methods listed above or by contacting the
individual listed under FOR FURTHER INFORMATION CONTACT.
Docket: You may review copies of the Virginia program, this
submission, a listing of any scheduled public hearings, and all written
comments received in response to this document at OSM's
[[Page 50916]]
Knoxville Field Office at the address listed above during normal
business hours, Monday through Friday, excluding holidays. You may
receive one free copy of the submission by contacting OSM's Knoxville
Field Office. In addition, you may receive a copy of the submission
during regular business hours at the following location: Virginia
Department of Mines, Minerals, and Energy, 3405 Mountain Empire Road,
Big Stone Gap, Virginia 24219, Telephone: (276) 523-8100, E-Mail:
[email protected].
FOR FURTHER INFORMATION CONTACT: Earl Bandy, Telephone: (865) 545-4103.
Internet: [email protected].
SUPPLEMENTARY INFORMATION:
I. Background on the Virginia Program
II. Description of the Submission
III. Public Comment Procedures
IV. 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 this Act* * *; and rules and
regulations consistent with regulations issued by the Secretary
pursuant to this 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. Description of the Submission
By letter dated June 11, 2008, the Virginia Department of Mines,
Minerals, and Energy (DMME) sent us an informal proposed amendment to
its program for a pre-submission review (VA-126-INF). We reviewed the
pre-submission and responded to DMME, with comments, via electronic
mail on July 2, 2008. By letter dated July 17, 2008, DMME formally
submitted the proposed amendments to its program (Administrative Record
No. VA-1089.) The full text of the program amendment is available for
you to read at the location listed above under ``ADDRESSES.'' DMME
proposes the following changes:
1. 4VAC25-130-700.5. Definitions
The corresponding Federal regulations for this section are 30 CFR
701.5, 761.5 and 880.5.
DMME proposes to either add, delete or modify the following
definitions:
``Applicant Violator System'' or ``AVS'' means an automated
information system of applicant, permittee, operator, violation and
related data the Federal Office of Surface Mining Reclamation and
Enforcement (OSM) maintains and the division utilizes in the permit
review process.
``Control'' or ``controller'', when used in Parts 4VAC25-130-773,
4VAC25-130-774, and 4VAC25-130-778 of this chapter, refers to or means
(a) A permittee of a surface coal mining operation; (b) An operator of
a surface coal mining operation; or (c) Any person who has the ability
to determine the manner in which a surface coal mining operation is
conducted.
``Indemnity agreement'' means an agreement between two persons in
which one person agrees to pay the other person for a loss or damage.
The persons involved can be individual people, or groups of people, or
legal organizations, such as partnerships, corporations or government
agencies, or any combination of these. The agreement shall, at a
minimum:
(a) Contain the date of execution.
(b) Be payable to the ``Treasurer of Virginia.''
(c) Be immediately due and payable in the event of bond forfeiture
of the permit.
(d) Be payable in a sum certain of money.
(e) Be signed by the makers.
``Knowing'' or ``knowingly'', which means that a person who
authorized, ordered, or carried out an act or omission knew or had
reason to know that the act or omission would result in either a
violation or a failure to abate or correct a violation.
``Own'', ``owner'', or ``ownership'', as used in Parts 4VAC25-130-
773, 4VAC25-130-774, and 4VAC25-130-778 of this chapter (except when
used in the context of ownership of real property), means being a sole
proprietor or owning of record in excess of 50 percent of the voting
securities or other instruments of ownership of an entity.
``Self-bond,'' as provided by Part 801 of this chapter, means:
(a) For an underground mining operation, an indemnity agreement in
a sum certain payable on demand to the Treasurer of Virginia, executed
by the applicant and by each individual and business organization
capable of influencing or controlling the investment or financial
practices of the applicant by virtue of this authority as an officer or
ownership of all or a significant part of the applicant, and supported
by a certification that the applicant participating in the Pool Bond
Fund has a net worth, total assets minus total liabilities equivalent
to $1 million. Such certification shall be by an independent certified
public accountant in the form of an unqualified opinion.
This definition in the Virginia regulation is being amended to
delete the reference to ``cognovit note'' and replace such with
``indemnity agreement'', as the approved bonding instrument under
4VAC25-130-801.13, as being amended.
The DMME is proposing to delete ``in ownership or other effective
control over the right to conduct surface coal mining operations under
a permit issued by the division'' and add ``of a permittee'' after
``change.'' As proposed, the definition will read as follows:
``Transfer, assignment, or sale of permit rights'' means a change
of a permittee.
The DMME is proposing to add the following definition of ``Valid
Existing Rights'' (VER) and delete from subsection (a) ``for haulroads,
that a person possesses a valid existing right for an area protected
under of the Act on August 3, 1977, if the application of any of the
prohibitions contained in that section to the property interest that
existed on that date would effect a taking of the person's property
which would entitle the person to compensation under the Fifth and
Fourteenth Amendments to the United States Constitution;'' and add
``Sec. 45.1-252 D''; the DMME is proposing to add ``For haulroads,''
at the beginning of subsection c; at subsection (c) (2), ``Was under a
properly'' is added at the beginning sentence and ``A'' is deleted;
``or'' is added after ``way''; the DMME is proposing to add subsection
3 ``Was used or contained in a valid permit that existed when the land
came under the protection of Sec. 45.1-252D or Sec. 4 VAC 25-130-
761.11.'' Subsection (c) is deleted entirely and subsection (e) is
renamed subsection (d). In subsection (d), ``That an'' is added to the
beginning of the sentence; ``(s) that are'' is added after
``document''; ``the'' is deleted after ``establish'' and ``valid
existing'' is added before ``rights''; ``to which the standard of
paragraphs (a) and (d) of this definition applies'' is deleted after
``rights''. As proposed, the definition will read as follows:
[[Page 50917]]
``Valid existing rights'' means a set of circumstances under which
a person may, subject to division approval, conduct surface coal mining
operations on lands where Sec. 45.1-252 D of the Act and Sec. 4VAC25-
130-761.11 of the regulations would otherwise prohibit such operations.
The possession of valid existing rights only confers an exception from
the prohibitions of Sec. 45.1-252 D and Sec. 4VAC25-130-761.11. A
person seeking to exercise valid existing rights would need:
(a) Except as provided in paragraph (c) of this definition, a
demonstration of the legally binding conveyance, lease, deed, contract,
or other document which vests the person, or predecessor in interest,
with the right to conduct the type of surface coal mining operations
intended. The right must exist at the time the land came under the
protection of Sec. 4VAC25-130-761.11 and Sec. 45.1-252 D;
(b) A demonstration of compliance with one of the following--
(1) That all permits and other authorizations required to conduct
surface coal mining operations had been obtained, or a good faith
attempt to obtain all necessary permits and authorizations had been
made, before the land came under the protection of Sec. 45.1-252 D or
Sec. 4VAC25-130-761.11.
(2) That the land needed for and immediately adjacent to a surface
coal mining operation for which all permits and other authorizations
required to conduct surface coal mining operations had been obtained,
or a good faith attempt made to obtain such permits and authorizations
occurred before the land came under the protection of Sec. 45.1-252 D
or Sec. 4VAC25-130-761.11. The person must demonstrate that
prohibiting the expansion of the operation onto that land would
unfairly impact the viability of the operation as originally planned
before the land came under the protection of Sec. 45.1-252 D or Sec.
4VAC25-130-761.11. Except for operations in existence before August 3,
1977, or for which a good faith effort to obtain all necessary permits
had been made before August 3, 1977, this standard does not apply to
lands already under the protection of Sec. 45.1-252 D or Sec. 4VAC25-
130-761.11 when the division approved the permit for the original
operation or when the good faith effort to obtain all necessary permits
for the original operation was made. In evaluating whether a person
meets this standard, the division may consider--
(i) The extent to which coal supply contracts or other legal and
business commitments that occurred before the land came under the
protection of Sec. Sec. 45.1-252 D or Sec. 4VAC25-130-761.11 depend
upon the use of the land for surface coal mining operations.
(ii) The extent to which plans used to obtain financing for the
operation before the land came under the protection of Sec. 45.1-252 D
or Sec. 4VAC25-130-761.11 relied upon use of that land for surface
coal mining operations.
(iii) The extent to which investments in the operation made before
the land came under the protection of Sec. 45.1-252 D or Sec. 4VAC25-
130-761.11 relied upon the use of that land for surface coal mining
operations.
(iv) Whether the land lies within the area identified on the life-
of-mine map under Sec. 4VAC25-130-779.24(c) that was submitted before
the land came under the protection of Sec. 45.1-252 D or Sec. 4VAC25-
130-761.11.
(c) For haulroads, a person who claims valid existing rights to use
or construct a road across the surface of lands protected by Sec.
45.1-252 D or Sec. 4VAC25-130-761.11 must demonstrate that one or more
of the following circumstances exist, the road--
(1) Existed when the land upon which it is located came under the
protection of Sec. 45.1-252 D or Sec. 4VAC25-130-761.11, and the
person has the legal right to use the road for surface coal mining
operations.
(2) Was under a properly recorded right of way or easement for a
road in that location at the time the land came under the protection of
Sec. 45.1-252 D or Sec. 4VAC25-130-761.11, and under the document
creating the right of way or easement, and under subsequent
conveyances, the person has a legal right to use or construct a road
across the right of way or easement for surface coal mining operations.
(3) Was used or contained in a valid permit that existed when the
land came under the protection of Sec. 45.1-252 D or Sec. 4VAC25-130-
761.11.
(d) That an interpretation of the terms of the document(s) that are
relied upon to establish valid existing rights shall be based either
upon applicable Virginia statutory or case law concerning
interpretation of documents conveying mineral rights or, where no
applicable state law exists, upon the usage and custom at the time and
place it came into existence. This amendment would apply to permit
applications submitted on and after the date the amendment is approved
by the Secretary of Interior and becomes effective upon promulgation
pursuant to the Federal and Virginia Administrative Process Acts.
The DMME is proposing to add the following definition:
``Violation'', when used in the context of the permit application
information or permit eligibility requirements of Sec. Sec. 45.1-235
and 45.1-238(C) of the Act and related regulations, means:
(1) A failure to comply with an applicable provision of a Virginia,
Federal, or other State law or regulation pertaining to air or water
environmental protection, as evidenced by a written notification from a
governmental entity to the responsible person; or
(2) A noncompliance for which the division has provided one or more
of the following types of notice or OSM or a State regulatory authority
has provided equivalent notice under corresponding provisions of a
Federal or State regulatory program--
(i) A notice of violation under Sec. 4VAC-25-130-843.12.
(ii) A cessation order under Sec. 4VAC-25-130-843.11.
(iii) A final order, bill, or demand letter pertaining to a
delinquent civil penalty assessed under Part 4VAC-25-130-845 or 4VAC-
25-130-846.
(iv) A bill or demand letter pertaining to delinquent reclamation
fees owed under 30 CFR Part 870.
(v) A notice of bond forfeiture under Sec. 4VAC-25-130-800.50
when--
(A) One or more violations upon which the forfeiture was based have
not been abated or corrected;
(B) The amount forfeited and collected is insufficient for full
reclamation under Sec. 4VAC-25-130-800.50 or Sec. 4VAC-25-130-801.19,
the division orders reimbursement for additional reclamation costs, and
the person has not complied with the reimbursement order.
The DMME is proposing to add the following definition:
``Violation, failure or refusal'', for purposes of Part 4VAC25-130-
846, means:
(1) A failure to comply with a condition of an issued permit or the
regulations implementing those sections; or
(2) A failure or refusal to comply with any order issued under Part
4VAC25-130-843, or any order incorporated in a final decision issued by
the Director, except an order incorporated in a decision issued under
Sec. 45.1-246 of the Act.
The DMME is proposing to add ``or regulation'' after ``law'' in the
definition of Violation notice. As proposed, it will read as follows:
``Violation notice'' means any written notification from a
governmental entity of a violation of law or regulation, whether by
letter, memorandum, legal or administrative pleading, or other written
communication.
[[Page 50918]]
The DMME proposes to add the definition of ``Willful or
Willfully.'' As proposed, it will read as follows:
``Willful'' or ``Willfully'' means that a person who authorized,
ordered or carried out an act or omission that resulted in either a
violation or the failure to abate or correct a violation acted:
(1) Intentionally, voluntarily, or consciously; and
(2) With intentional disregard or plain indifference to legal
requirements.
The DMME is proposing to delete the following definitions:
``Cognovit note'' means an extraordinary note which authorizes an
attorney to confess judgment against the person or persons signing it.
It is written authority of a debtor and a direction by him for entry of
a judgment against him if the obligation set forth in the note is not
paid when due. Such judgment may be taken by any person holding the
note, which cuts off every defense which makers of the note may
otherwise have and it likewise cuts off all rights of appeal from any
judgment taken on it. The note shall, at a minimum:
(a) Contain the date of execution.
(b) Be payable to the ``Treasurer of Virginia.''
(c) Be due and payable in the event of bond forfeiture of the
permit.
(d) Be payable in a sum certain of money.
(e) Be signed by the makers.
This definition in the Virginia regulations is being deleted, as
the indemnity agreement will be the bonding instrument utilized under
4VAC25-130-801.13 (as being amended).
``Owned or controlled'' and ``owns or controls'' mean any one or a
combination of the relationships specified in paragraphs (a) and (b) of
this definition:
(a)(i) Being a permittee of a surface coal mining operation; (ii)
based on instrument of ownership or voting securities, owning of record
in excess of 50% of an entity; or (iii) having any other relationship
which gives one person authority directly or indirectly to determine
the manner in which an applicant, an operator, or other entity conducts
surface coal mining operations.
(b) The following relationships are presumed to constitute
ownership or control unless a person can demonstrate that the person
subject to the presumption does not in fact have the authority directly
or indirectly to determine the manner in which the relevant surface
coal mining operation is conducted:
(1) Being an officer or director of an entity;
(2) Being the operator of a surface coal mining operation;
(3) Having the ability to commit the financial or real property
assets or working resources of an entity;
(4) Being a general partner in a partnership;
(5) Based on the instruments of ownership or the voting securities
of a corporate entity, owning of record 10 through 50% of the entity;
or
(6) Owning or controlling coal to be mined by another person under
a lease, sublease or other contract and having the right to receive
such coal after mining or having authority to determine the manner in
which that person or another person conducts a surface coal mining
operation.
2. 4VAC25-130-773.13. Public Participation in Permit Processing
The corresponding Federal regulation for this section is 30 CFR
773.6. The DMME proposes to add ``or the last publication date of the
newspaper notice required by Paragraph (a) of this section, whichever
is later'' after ``notification''. As proposed, it reads as follows:
(b) Comments and objections on permit application.
(1) Within 30 days after notification or the last publication date
of the newspaper notice required by Paragraph (a) of this section,
whichever is later, written comments or objections on an application
for a permit, significant revision to a permit under 4VAC25-130-774.13,
or renewal of a permit under 4VAC25-130-774.15, may be submitted to the
division by public entities notified under Paragraph (a)(3) of this
section with respect to the effects of the proposed mining operations
on the environment within their areas of responsibility.
This change in the Virginia regulation will allow public entities
to have the same period of time to review and comment on the
application as afforded the public.
3. 4VAC25-130-773.15. Review of Permit Applications
The corresponding Federal regulation for this section is 30 CFR
773.7.
The DMME proposes to delete from (a)(1) ``, unless a later time is
necessary to provide an opportunity for a hearing under subdivision
(b)(2) of this section.''
The DMME proposes to add to (a) subdivisions (3) and (4) which
state:
(3) The division shall review the information submitted under
Sec. Sec. 4VAC25-130-778.13 and 4VAC25-130-778.14 regarding the
applicant's and/or operator's permit histories, business structure, and
ownership and control relationships.
(4) If the applicant or operator does not have any previous mining
experience, the division may conduct additional reviews to determine if
someone else with surface coal mining experience controls or will
control the mining operation.
The DMME proposes to delete from subdivision (b)(1) ``by any person
who owns or controls the applicant'' after ``operator''; proposes to
add ``; or if a surface coal mining and reclamation operation
indirectly owned or controlled by the applicant or operator has an
unabated or uncorrected violation and the applicant's or operator's
control was established or the violation was cited after November 2,
1988.'' after ``subdivision''; proposes to delete subsection
(b)(4)(i)(C)(1) entirely and join (2) to the end of the sentence at
(C). This change is to reflect the deletion of the last sentence of
Section 510(e) of the Surface Mining Control and Reclamation Act of
1977 (30 U.S.C. 1260(e)) per the ``Tax Relief and Health Care Act of
2006.'' As proposed, this section will read as follows:
(a) General.
(1) The division shall review the application for a permit,
revision, or renewal; written comments and objections submitted;
information from the AVS; and records of any informal conference or
hearing held on the application and issue a written decision, within a
reasonable time, either granting, requiring modification of, or denying
the application. If an informal conference is held under 4VAC25-130-
773.13(c), the decision shall be made within 60 days of the close of
the conference.
(2) The applicant for a permit or revision of a permit shall have
the burden of establishing that the application is in compliance with
all the requirements of the regulatory program.
(3) The division shall review the information submitted under
Sec. Sec. 4VAC25-130-778.13 and 4VAC25-130-778.14 regarding the
applicant's and/or operator's permit histories, business structure, and
ownership and control relationships.
(4) If the applicant or operator does not have any previous mining
experience, the division may conduct additional reviews to determine if
someone else with surface coal mining experience controls or will
control the mining operation.
(b) Review of violations.
(1) Based on available information concerning Federal and state
failure-to-abate cessation orders, unabated Federal
[[Page 50919]]
and state imminent harm cessation orders, delinquent civil penalties
issued pursuant to Sec. 518 of the Federal Act and Sec. 45.1-246 of
the Code of Virginia, bond forfeitures where violations upon which the
forfeitures were based have not been corrected, delinquent abandoned
mine reclamation fees, and unabated violations of Federal and state
laws, rules, and regulations pertaining to air or water environmental
protection incurred in connection with any surface coal mining
operation, the division shall not issue the permit if any surface coal
mining and reclamation operation directly owned or controlled by either
the applicant or operator is currently in violation of the Federal Act,
this chapter, or any other law, rule or regulation referred to in this
subdivision; or if a surface coal mining and reclamation operation
indirectly owned or controlled by the applicant or operator has an
unabated or uncorrected violation and the applicant's or operator's
control was established or the violation was cited after November 2,
1988. In the absence of a failure-to-abate cessation order, the
division may presume that a notice of violation issued pursuant to
4VAC25-130-843.12 or under a Federal or state program has been or is
being corrected to the satisfaction of the agency with jurisdiction
over the violation, except where evidence to the contrary is set forth
in the permit application or the AVS; or where the notice of violation
is issued for nonpayment of abandoned mine reclamation fees or civil
penalties. If a current violation exists, the division shall require
the applicant or operator before the issuance of the permit, to either:
(i) Submit to the division proof that the current violation has
been or is in the process of being corrected to the satisfaction of the
agency that has jurisdiction over the violation; or
(ii) Establish for the division that the applicant or operator or
any person who owns or controls the applicant, has filed and is
presently pursuing, in good faith, a direct administrative or judicial
appeal to contest the validity of the current violation. If the initial
judicial review authority under 4VAC25-130-775.13 affirms the
violation, then the applicant shall within 30 days of the judicial
action submit the proof required under subdivision (b)(1)(i) of this
section.
(2) Any permit that is issued on the basis of proof submitted under
subdivision (b)(1)(i) of this section that a violation is in the
process of being corrected, or pending the outcome of an appeal
described in subdivision (b)(1)(ii) of this section, shall be
conditionally issued.
(3) If the division makes a finding that the applicant or the
operator specified in the application, controls or has controlled
surface coal mining and reclamation operations with a demonstrated
pattern of willful violations of the Act of such nature and duration,
and with resulting irreparable damage to the environment as to indicate
an intent not to comply with the Act, no permit shall be issued. Before
such a finding becomes final, the applicant or operator shall be
afforded an opportunity for an adjudicatory hearing on the
determination as provided for in 4VAC25-130-775.11.
(4)(i) Subsequent to October 24, 1992, the prohibitions of
subsection (b) of this section regarding the issuance of a new permit
shall not apply to any violation that:
(A) Occurs after that date;
(B) Is unabated; and
(C) Results from an unanticipated event or condition that arises
from a surface coal mining and reclamation operation on lands that are
eligible for remining under a permit held by the person making
application for the new permit.
4. 4VAC25-130-773.20(c)(3). Improvidently Issued Permits; General
Procedures
The corresponding Federal regulation for this section is 30 CFR
773.21.
The DMME proposes to amend subsection (c)(3) by deleting ``Suspend
the permit until'' and delete (c)(4) entirely. As amended, it will read
as follows:
(3) Serve the permittee with a preliminary finding that shall be
based on evidence sufficient to establish a prima facie case that the
permit was improvidently issued. The finding shall inform the permittee
that the permit may be suspended or rescinded under 4VAC25-130-773.21,
if the violation is not abated or the penalty or fee is not paid.
5. 4VAC25-130-773.21. Improvidently Issued Permits; Rescission
Procedures
The corresponding Federal regulation for this section is 30 CFR
773.23.
The DMME proposes to add ``service of the notice of'' after
``After'' and ``as set forth in the notice'' after ``permit'' in
subsection (b). A new subsection (c) is added; subsection (e) is
renamed to (d) and ``or person aggrieved by the division's notice or
decision'' is added after ``permittee''; ``Sec. 4 VAC 25-130-775.11 of
this chapter and'' is added after ``under''. As amended, it will read
as follows:
If the division, under 4VAC25-130-773.20(c)(3 4), elects to suspend
or rescind an improvidently issued permit, it shall serve on the
permittee a notice of proposed suspension and rescission which includes
the reasons for the finding of the division under 4VAC25-130-773.20(b)
and states that:
(a) Automatic suspension and rescission. After a specified period
of time not to exceed 90 days the permit automatically will become
suspended, and not to exceed 90 days thereafter rescinded, unless
within those periods the permittee submits proof, and the division
finds, that:
(1) The finding of the division under 4VAC25-130-773.20(b) was
erroneous;
(2) The permittee or other person responsible has abated the
violation on which the finding was based, or paid the penalty or fee,
to the satisfaction of the responsible agency;
(3) The violation, penalty or fee is the subject of a good faith
appeal, or of an abatement plan or payment schedule with which the
permittee or other person responsible is complying to the satisfaction
of the responsible agency; or
(4) Since the finding was made, the permittee has severed any
ownership or control link with the person responsible for, and does not
continue to be responsible for, the violation, penalty or fee.
(b) Cessation of operations. After service of the notice of permit
suspension or rescission, the permittee shall cease all surface coal
mining and reclamation operations under the permit as set forth in the
notice, except for violation abatement and for reclamation and other
environmental protection measures as required by the division; and
(c) A person may challenge an ownership or control listing or
finding by submitting to the division a written explanation of the
basis for the challenge, along with any evidence or explanatory
materials that substantiates that the person did not or does not own or
control the entire surface coal mining operation or relevant portion or
aspect thereof. The person may request that any information submitted
to the division under this section be held as confidential, if it is
not required to be made public under the Act. The division shall review
the information and render a written decision regarding the person's
ownership or control listing or link within 60 days from receipt of the
challenge.
(d) Right to appeal. The permittee or person aggrieved by the
division's notice or decision may file an appeal for administrative
review of the notice or decision under subparagraph (c) under
[[Page 50920]]
Sec. 4VAC25-130-775.11 of this chapter and Sec. 2.2-4000 et seq. of
the Code of Virginia.
6. 4VAC25-130-774.12. Post-Permit Issuance Requirements
The corresponding Federal regulation for this section is 30 CFR
774.11.
The DMME proposes to add this entire new section to the Virginia
regulations and will read as follows:
(a) For purposes of future permit eligibility determinations and
enforcement actions, the division will utilize the AVS, retrieving and
entering appropriate data regarding ownership, control, and violation
information. The division shall enter into the AVS--
------------------------------------------------------------------------
Information-- Within 30 days after--
------------------------------------------------------------------------
(1) Permit records..................... The permit is issued or
subsequent changes made.
(2) Unabated or uncorrected violations. The abatement or correction
period for a violation
expires.
(3) Unpaid final civil penalties, The required due payment date.
charges, taxes or fees.
(4) Changes in violation status........ Abatement, correction, or
termination of a violation, or
a final decision from an
administrative or judicial
review proceeding.
------------------------------------------------------------------------
(b) In the event the permittee is issued enforcement action under
Sec. 4VAC25-130-843.11, and fails to timely comply with the order's
remedial measures, the division shall instruct the permittee to provide
or update all the information required by Sec. 4VAC25-130-778.11.
However, the permittee would not be required to submit this information
if a court of competent jurisdiction has granted a stay of the
cessation order and the stay remains in effect.
(c) The permittee shall notify the division within 60 days of any
addition, departure, or change in position of any person identified
under Sec. 4VAC25-130-778.13. The permittee shall provide the date of
such addition, departure, or change of such person(s).
(d) Should the division discover that the permittee, or a person
listed in an ownership or control relationship with the permittee, owns
or controls an operation with an unabated or uncorrected violation, it
will determine whether enforcement action is appropriate under Parts
4VAC25-130-843 and 4VAC25-130-846, or other applicable provisions under
the Act. The division may issue a preliminary finding of permit
ineligibility under Sec. 45.1-238(C) of the Act, if it finds that the
person had control relationships and violations that would have made
the person ineligible for a permit under Sec. 4VAC25-130-773.15. The
finding shall be in accordance with 4VAC25-130-773.20(c)(3).
(e) If a determination of permit ineligibility is rendered by the
division, the person would have 30 days from service of the written
finding to submit any information that would tend to demonstrate the
person's lack of ownership or control of the surface coal mining
operation. The division would issue a final determination regarding the
permit eligibility within 30 days of receiving any information from the
person or from the expiration date that the person could submit the
information under this subparagraph. A person aggrieved by the
division's eligibility finding would have the right to request review
under Part 4VAC25-130-775.
7. 4VAC25-130-774.17(a). Transfer, Assignment, or Sale of Permit Rights
The corresponding Federal regulation for this section is 30 CFR
774.17.
As amended, it reads as follows:
(a) General. No transfer, assignment, or sale of rights granted by
a permit shall be made without the prior written approval of the
division. At its discretion, the division may allow a prospective
successor in interest to engage in surface coal mining and reclamation
operations under the permit during the pendency of an application for
approval of a transfer, assignment, or sale of permit rights submitted
under paragraph (b) of this section, provided that the prospective
successor in interest can demonstrate to the satisfaction of the
division that sufficient bond coverage will remain in place.
8. 4VAC130-778.13. Identification of Interests
The corresponding Federal regulation for this section is 30 CFR
778.11.
An application shall contain the following information:
(a) A statement as to whether the applicant and/or the operator, if
different from the applicant, is a corporation, partnership, single
proprietorship, association, or other business entity.
(b) The name, address, telephone number and, as applicable,
employer identification number of the:
(1) Applicant;
(2) Applicant's resident agent;
(3) Operator, if different from the applicant; and
(4) Each business entity in the applicant's and operator's
organizational structure, up to and including the ultimate parent
entity of the applicant and operator; for every such business entity
provide the required information for every president, chief executive
officer, partner, member, and/or director (or persons in similar
positions), a positions), and every person who owns of record 10
percent or more of the entity.
(c) For the applicant and operator, if different from the
applicant, information required by paragraph (d) of this section for
every:
(1) Officer.
(2) Partner.
(3) Member.
(4) Director.
(5) Person performing a function similar to a director.
(6) Person who owns, of record, 10 percent or more of the applicant
or operator.
(d) For each person listed from paragraph (c) of this section:
(1) The person's name, address, and telephone number.
(2) The person's position title and relationship to the applicant
or operator, including percentage of ownership and location in the
organizational structure.
(3) The date the person began functioning in that position.
(e) A list of all the names under which the applicant, operator,
partners, or principal shareholders, and the operator's partners or
principal shareholders operate or previously operated a surface coal
mining operation in the United States within a five-year period
preceding the date of submission of the application, including the
name, address, identifying numbers, including employer identification
number, Federal or State permit number and MSHA number, the date of
issuance of the MSHA number, and the regulatory authority.
(f) For the applicant and operator, if different from the
applicant, a list of any pending permit applications for surface coal
mining operations filed in the United States, identifying each
application by its application number,
[[Page 50921]]
jurisdiction, or by other identifying information when necessary.
(g) For any surface coal mining operation the applicant and/or
operator owned or controlled within a five year period preceding the
submission of the permit application, and for any surface coal mining
operation the applicant and/or operator controlled on that date, the:
(1) Permittee's and operator's name and address, tax identification
numbers;
(2) Name of the regulatory authority with jurisdiction over the
permit(s) with the corresponding Federal or State permit number(s) and
MSHA number(s); and
(3) The permittee's and operator's relationship to the operation,
including the percentage of ownership and location in the
organizational structure.
(h) The name and address of each legal or equitable owner of record
of the surface and mineral property to be mined, each holder of record
of any leasehold interest in the property to be mined, and any
purchaser of record under a real estate contract for the property to be
mined.
(i) The name and address of each owner of record of all property
(surface and subsurface) contiguous to any part of the proposed permit
area.
(j) The Mine Safety and Health Administration (MSHA) numbers for
all mine-associated structures that require MSHA approval.
(k) A statement of all lands, interest in lands, options, or
pending bids on interests held or made by the applicant for lands
contiguous to the area described in the permit application. If
requested by the applicant, any information required by this Paragraph
which is not on public file pursuant to State law shall be held in
confidence by the division, as provided under 4VAC25-130-
773.13(d)(3)(ii).
(l) Each application shall contain a list of all other licenses and
permits needed by the applicant to conduct the proposed surface mining
activities.
This list shall identify each license and permit by--
(1) Type of permit or license;
(2) Name and address of issuing authority;
(3) Identification numbers of applications for those permits or
licenses or, if issued, the identification numbers of the permits or
licenses; and
(4) If a decision has been made, the date of approval or
disapproval by each issuing authority.
(m) After an applicant is notified that his application is
approved, but before the permit is issued, the applicant shall, as
applicable, update, correct or indicate that no change has occurred in
the information previously submitted under Paragraphs (a) through (d)
of this section.
(n) The applicant shall submit the information required by this
section and by 4VAC25-130-778.14 in any prescribed OSM format that is
issued.
9. 4VAC25-130-778.14(c). Violation Information
The corresponding Federal regulation for this section is 30 CFR
778.14.
As proposed the amendment reads as follows:
(c) For any violation of a provision of the Federal Act or this
chapter, or of any law, rule or regulation of the United States, or of
any State law, rule or regulation enacted pursuant to Federal law, rule
or regulation pertaining to air or water environmental protection
incurred in connection with any surface coal mining operation, a list
of all violation notices received by the applicant during the three
year period preceding the application date, and a list of all unabated
cessation orders and unabated air and water quality violation notices
received prior to the date of the application by any surface coal
mining and reclamation operation owned or controlled by either the
applicant or operator. For each violation notice or cessation order
reported, the lists shall include the following information, as
applicable:
10. 4VAC25-130-800.52(a) and (a)(2). Bond Forfeiture Reinstatement
Procedures
There is no direct Federal counterpart regulation for this section.
As proposed, it reads as follows:
(a) Any person who owns or controls or has owned or controlled any
operation on which the bond has been forfeited or the permit revoked
pursuant to this chapter or pursuant to Chapters 15 [repealed], 17
(Sec. 45.1-198 et seq.) or 23 [repealed] of Title 45.1 of the Code of
Virginia and who has not previously been reinstated by the Director may
petition the Director for reinstatement. Reinstatement, if granted,
shall be under such terms and conditions as set forth by the Director
or his designee. The Director or his designee in determining the terms
and conditions shall consider the particular facts and circumstances
existing in each individual case. Reinstatement shall not be available
to applicants for reinstatement where the division finds that the
applicant controls or has controlled surface coal mining and
reclamation operations with a demonstrated pattern of willful
violations of the Act of such nature and duration and with such
resulting irreparable damage to the environment as to indicate an
intent not to comply with the Act, in accordance with 4VAC25-130-
773.15(b)(3). As a minimum, the applicant for reinstatement shall
satisfy the following requirements:
* * * * *
(5) Pay to the Director a reinstatement fee of $5,000 assessed by
the Director on each site forfeited. These fees shall be used by the
Director to accomplish reclamation on other forfeited or abandoned
surface coal mining operations or conduct such other investigations,
research or abatement actions relating to lands and waters affected by
coal surface mining activities.
(b) Reinstatement by the Director shall be a prerequisite to the
filing by the person (applicant for reinstatement) of any new permit
application or renewal under this chapter or Chapters 15 [repealed], 17
(Sec. 45.1-198 et seq.), or 23 [repealed] of Title 45.1 of the Code of
Virginia, but shall not affect the person's need to comply with all
other requirements of said statutes, regulations or both promulgated
thereunder.
11. 4VAC25-130-801.12(c) and (d). Entrance Fee and Bond
There is no direct Federal counterpart regulation for this section.
As proposed, it reads as follows:
(c) The Director may accept the bond of an applicant of an
underground mining operation without separate surety, as provided by
4VAC25-130-801.13, upon a showing by such applicant of a net worth,
total assets minus total liabilities (certified by an independent
certified public accountant), equivalent to $1 million. Such net worth
shall be, during the existence of the permit, certified annually by an
independent certified public accountant and the certification submitted
to the division on the anniversary date of the permit.
(d) The Director may accept the bond of an applicant of a surface
mining operation or associated facility without separate surety, upon a
showing by the applicant of those conditions set forth in 4VAC25-130-
801.13(b). The financial solvency of the permittee shall be, during the
existence of the permit, certified annually by an independent certified
public accountant and the certification submitted to the division by
June 1st or by such other date that the division may set.
12. 4VAC25-130-801.13. Self-Bonding
There is no direct Federal counterpart regulation for this section.
As proposed, it reads as follows:
[[Page 50922]]
(a) The division may accept a self-bond from the applicant of a
proposed surface coal mining operation in the form of an indemnity
agreement.
(1) The applicant shall provide the:
(i) Name and address of a suitable agent to receive service of
process in the Commonwealth.
(ii) Name and address of the certified public accountant(s) who
prepared the statement required by this section.
(iii) Location of the financial records used to prepare the C.P.A.
statement required by this section.
(iv) Evidence indicating a history of satisfactory continuous
operation.
(2) For a proposed underground mining operation, the applicant has
a net worth, certified by an independent certified public accountant in
the form of an unqualified opinion appended to the financial statement
submitted, of no less than $1 million after total liabilities are
subtracted from total assets. If the applicant is a subsidiary
corporation, the applicant's parent organization's net worth need only
be certified by the independent certified public accountant, if the
applicant uses or includes any assets or liabilities of the parent
organization in computing or arriving at the applicant's net worth.
Where the division has a valid reason to believe that the permittee's
net worth is less than required by this subsection, it may require a
new certified public accountant's statement and certification.
(3) The applicant of a proposed surface mining operation or
associated facility shall submit evidence substantiating the
applicant's financial solvency, with the appropriate financial
documentation required by Paragraph (a)(4) of this section.(4)(i) An
indemnity agreement must be executed by the applicant, and said
agreement must also be executed by:
(A) If a corporation, two corporate officers who are authorized to
sign the agreement by a resolution of the board of directors, a copy of
which shall be provided;
(B) To the extent that the history or assets of a parent
organization are relied upon to make the showings of this Part, the
parent organization of which it is a subsidiary, whether first-tier,
second-tier, or further removed, in the form of (A) above;
(C) If the applicant is a partnership, all of its general partners
and their parent organization or principal investors; and
(D) If the applicant is a married individual, the applicant's
spouse;
(ii) Any person who occupies more than one of the specified
positions shall indicate each capacity in which he signs the agreement;
(iii) The agreement shall be a binding obligation, jointly and
severally, on all who execute it;
(iv) For the purposes of this Paragraph, principal investor or
parent organization means anyone with a 10 percent or more beneficial
ownership interest, directly or indirectly, in the applicant.
(b) Whenever a participant in the Pool Bond Fund applies for an
additional permit or permits, the C.P.A. certification required by
Paragraph (a)(2) or (a)(3) of this section shall be updated reflecting
those prior reclamation obligations and self-bonding liabilities still
in effect.
(c) If at any time the conditions upon which the self-bond was
approved no longer prevail, the division shall require the posting of a
surety or collateral bond before coal surface mining operations may
continue. The permittee shall immediately notify the division of any
change in his total liabilities or total assets which would jeopardize
the support of the self-bond. If the permittee fails to have sufficient
resources to support the self-bond, he shall be deemed to be without
bond coverage in violation of 4VAC25-130-800.11(b).
13. 4VAC25-130-840.14(c)(2). Availability of Records
The corresponding Federal regulation for this section is 30 CFR
840.14.
The DMME is proposing to add ``or electronic transmittal'' after
``mail''; add ``the division offices and on its Internet site'' after
``at''; delete ``a Federal, State or local government office in the
county where the mining is occurring or proposed to occur'' after
``at''; add ``or electronic transmittal'' after ``mail''; and delete
``A list of government offices where information may be inspected can
be obtained on request by contacting the division's Big Stone Gap
office.'' As proposed, it reads as follows:
(2) At the division's option in accordance with the Virginia
Freedom of Information Act (Chapter 21 (Sec. 2.1-340 et seq.) of Title
2.1 of the Code of Virginia), providing copies of subject information
promptly by mail or electronic transmittal at the request of any
resident of the area where the mining is occurring or is proposed to
occur, provided, that the division shall maintain for public
inspection, at the division offices and on its Internet site, a
description of the information available for mailing or electronic
transmittal and the procedure for obtaining such information.
This Virginia regulation is amended to provide for electronic
transmittal of information and the maintenance of the description of
available information from the division offices and via the agency
Internet site.
The Division has 2 offices located in the coalfield counties of
Southwest Virginia which are readily available to the public and an
Internet site to serve industry, other governmental agencies, and the
public.
14. 4VAC25-130-846.2. Definitions
The corresponding Federal regulation for this section is 30 CFR
701.5.
The following revised definitions are being moved to Sec. 4VAC25-
130-700.5 Definitions.
``Knowingly'' means that an individual knew or had reason to know
in authorizing, ordering, or carrying out an act or omission on the
part of a corporate permittee that such act or omission constituted a
violation, failure, or refusal.
``Violation, failure or refusal'' means:
(1) A violation of a condition of the permit issued pursuant to the
Act and the regulations promulgated thereunder; or, (2) A failure or
refusal to comply with any order issued under Sec. 45.1-245 of the
Act, or any order incorporated in a decision issued by the Director
under the Act, except an order incorporated in a decision issued under
Sec. 45.1-246(B) of the Act.
``Willfully'' means that an individual acted (1) either
intentionally, voluntarily, or consciously, and (2) with intentional
disregard or plain indifference to legal requirements in authorizing,
ordering, or carrying out a corporate permittee's action or omission
that constituted a violation, failure, or refusal.
III. Public Comment Procedures
Under the provisions of 30 CFR 732.17(h), we are seeking your
comments on whether the submission satisfies the applicable program
approval criteria of 30 CFR 732.15. If we approve the amendment, it
will become part of the Virginia program.
Electronic or Written Comments
If you submit written comments, they should be specific, confined
to issues pertinent to the proposed regulations, and explain the reason
for any recommended change(s). We appreciate any and all comments, but
those most useful and likely to influence decisions on the final
regulations will be those that either involve personal experience or
include citations to and analyses of SMCRA, its legislative history,
its implementing regulations, case law, other pertinent Tribal or
Federal laws or regulations, technical literature, or other relevant
publications. We cannot ensure that comments received after the close
[[Page 50923]]
of the comment period (see DATES) or sent to an address other than
those listed above (see ADDRESSES) will be included in the docket for
this rulemaking and considered.
Public Availability of Comments
Before including your address, phone number, e-mail address, or
other personal identifying information in your comment, you should be
aware that your entire comment--including your personal identifying
information--may be made publicly available at any time. While you may
ask us in your comment to withhold your personal identifying
information from public review, we cannot guarantee that we will be
able to do so.
Public Hearing
If you wish to speak at the public hearing, contact the person
listed under FOR FURTHER INFORMATION CONTACT by 4 p.m., local time, on
September 15, 2008. If you are disabled and need reasonable
accommodations to attend a public hearing, contact the person listed
under FOR FURTHER INFORMATION CONTACT. We will arrange the location and
time of the hearing with those persons requesting the hearing. If no
one requests an opportunity to speak, we will not hold the hearing.
To assist the transcriber and ensure an accurate record, we
request, if possible, that each person who speaks at a public hearing
provide us with a written copy of his or her comments. The public
hearing will continue on the specified date until everyone scheduled to
speak has been given an opportunity to be heard. If you are in the
audience and have not been scheduled to speak and wish to do so, you
will be allowed to speak after those who have been scheduled. We will
end the hearing after everyone scheduled to speak and others present in
the audience who wish to speak, have been heard.
Public Meeting
If there is limited interest in participation in a public hearing,
we may hold a public meeting rather than a public hearing. If you wish
to meet with us to discuss the submission, please request a meeting by
contacting the person listed under FOR FURTHER INFORMATION CONTACT. All
such meetings are open to the public and, if possible, we will post
notices of meetings at the locations listed under ADDRESSES. We will
make a written summary of each meeting a part of the administrative
record.
IV. Procedural Determinations
Executive Order 12630--Takings
This rule does not have takings implications. This determination is
based on the analysis performed for the counterpart Federal
regulations.
Executive Order 12866--Regulatory Planning and Review
This rule is exempted 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, to the
extent allowable 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 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. 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 a Federal program involving
Indian Tribes.
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 a major Federal actions within the meaning of section
102(2)(C) of the National Environmental Policy Act (42 U.S.C. 4321 et
seq.).
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 that is the subject of this rule is based on
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
[[Page 50924]]
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, geographic regions, or Federal, State or local governmental
agencies; 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 on 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 on 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: July 24, 2008.
Michael K. Robinson,
Acting Regional Director.
[FR Doc. E8-20175 Filed 8-28-08; 8:45 am]
BILLING CODE 4310-05-P