[Federal Register Volume 59, Number 186 (Tuesday, September 27, 1994)] [Unknown Section] [Page 0] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: 94-23826] [[Page Unknown]] [Federal Register: September 27, 1994] ----------------------------------------------------------------------- DEPARTMENT OF THE INTERIOR 30 CFR Part 946 Virginia Regulatory Program Amendment AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM), Interior. ACTION: Final rule; approval of amendment. ----------------------------------------------------------------------- SUMMARY: OSM is announcing the approval, with exceptions, of a proposed amendment to the Virginia regulatory program (hereinafter referred to as the Virginia program) under the Surface Mining Control and Reclamation Act of 1977 (SMCRA). The proposed amendment includes changes to Virginia's regulations relative to siltation structures and impoundments, revegetation standards for success, and roads and road construction. The amendment is intended to revise the State program to be consistent with the corresponding Federal standards and to clarify and correct inconsistencies in Virginia's rules. EFFECTIVE DATE: September 27, 1994. FOR FURTHER INFORMATION CONTACT: Mr. Robert A. Penn, Director, Big Stone Gap Field Office, P.O. Drawer 1217, Powell Valley Square Shopping Center, Room 220, Route 23, Big Stone Gap, Virginia 24219, Telephone: (703) 523-4303. SUPPLEMENTARY INFORMATION: I. Background on the Virginia Program II. Submission of the Proposed Amendment III. Director's Findings IV. Summary and Disposition of Comments V. Director's Decision VI. Procedural Determinations I. Background on the Virginia Program The Secretary of the Interior approved the Virginia program on December 15, 1981. Background information on the Virginia program including the Secretary's findings, the disposition of comments, and the conditions of approval can be found in the December 15, 1981, Federal Register (46 FR 61085-61115). Subsequent actions concerning the conditions of approval and program amendments can be found at 30 CFR 946.11, 946.12, 946.13, 946.15, and 946.16. II. Submission of the Proposed Amendment By letter dated October 22, 1993 (Administrative Record No. VA- 829), Virginia submitted proposed amendments to its regulatory program. The amendments address issues initially submitted to OSM on October 1, 1990 (Administrative Record Number VA-768), but subsequently withdrawn by Virginia in a letter dated May 12, 1992 (Administrative Record No. VA-818), as discussed in the final rule issued July 7, 1992 (57 FR 29788). Virginia submitted the request to withdraw portions of the October 1, 1990, submission (as modified April 18, 1991) in order to reconsider various proposals. Virginia's October 22, 1993, submission addresses the sections that Virginia withdrew in its May 12, 1992, letter except for Secs. 773.16(c)(4)(ii) and 773.16(c)(7). OSM announced receipt of the October 22, 1993, proposed amendments in the November 4, 1993, Federal Register (58 FR 58827), and in the same document opened the public comment period and provided opportunity for a public hearing on the adequacy of the proposed amendments. The public comment period closed on December 6, 1993. III. Director's Findings Set forth below, pursuant to SMCRA and the Federal regulations at 30 CFR 732.15 and 732.17 are the Director's findings concerning the proposed amendment. Revisions not specifically discussed below concern nonsubstantive wording changes, or revised cross-references and paragraph notations to reflect organizational changes resulting from this amendment. 1. Section 480-03-19.816/817.49(a)(3) Virginia proposes to add new stability design requirements at Sec. 480-03-19.816/817.49(a)(3)(ii) for impoundments not meeting the size or other criteria of 30 CFR 77.216(a), except for a coal mine waste impounding structure. The impoundments, located where failure would not be expected to result in loss of life or serious property damage, shall have a minimum static safety factor of 1.3 for a normal pool with steady state seepage saturation conditions. These proposed provisions are substantively identical to the Federal rule at 30 CFR 816/817.49(a)(3)(ii). The amendment further provides for use of earth embankments whose top widths are no less than 10 feet and whose embankment slopes are 2h:1v or flatter, provided the permittee documents that a minimum static safety factor of 1.3 can be met using the graphical solution methods outlined in the ``Bureau of Mines Report of Investigations/1981, RI 8564, Factor of Safety Charts for Estimating the Stability of Saturated and Unsaturated Tailings Pond Embankments, United States Department of the Interior.'' By letter dated February 23, 1994 (Administrative Record No. VA-836), OSM advised Virginia that the graphical solution methods could be used in lieu of engineering tests, for low hazard impoundments not meeting the size or other criteria of 30 CFR 77.216(a) if all the appropriate parameters needed to use the graphs in RI 8564 are adequately documented for each embankment. OSM pointed out that the appropriate parameters included: --Unit weight of the soil --Height of the embankment --Internal friction angle --Cohesion --Pore pressure ratio --Slope of the embankment --Depth factor In addition to satisfying these parameter requirements, OSM stated that the embankment would have to be constructed of homogeneous material and the stiff base under the foundation must be flat. By letter dated March 16, 1994 (Administrative Record No. VA-837), Virginia agreed that the parameters set forth in OSM's letter of February 23, 1994, will be required by the State for use with the graphs in RI 8564 and that the parameters must be documented for each embankment. Virginia further agreed that the embankment will be required to be constructed of homogeneous material and the stiff base under the foundation will be required to be flat. The Federal regulations at 30 CFR 816/817.49(a)(3)(ii), 780.25(c)(3) and 784.16(c)(3) provide for an alternative to engineering tests that establish for impoundments a minimum static safety factor of 1.3. If a State regulatory authority, through the State program amendment process, can establish engineering design standards that ensure stability comparable to the 1.3 minimum static safety factor, then such design standards are no less effective than 816/817.49(a)(3)(ii). The Director has determined that the proposed amendment to the Virginia regulations at Sec. VR 480.03.19.816/817.49(a)(3)(ii), as clarified by Virginia on March 16, 1994, ensures stability comparable to the 1.3 minimum static safety factor and is no less effective than the Federal rules at 30 CFR 816/817.49(a)(3)(ii). 2. Section VR 480-03-19.816/817.116(b)(3) Virginia proposes to revise Sec. VR 480-03-19.816/ 817.116(b)(3)(v)(A) regarding the stocking of trees, shrubs, half- shrubs, and the ground cover established on the revegetated area where woody plants are used for wildlife management, recreation, shelter belts, or forest uses other than commercial forest land, by deleting the phrase ``approximate the stocking and ground cover on the surrounding unmined area.'' The Director finds the deleted language to be duplicative of requirements already found in the Virginia program. Therefore, the proposed deletion will not render Virginia's regulations less effective than the Federal requirements at 30 CFR 816.116(b)(3). 3. Section VR 480-03-19.816/817.116(c)(3) Virginia proposed to revise these subsections by deleting the term ``conservation'' and replacing that term with the term ``husbandry.'' In its submittal of this amendment Virginia stated that the wording change was made to make the language consistent with the counterpart Federal provisions at 30 CFR 816/817.116(c)(4). In addition to the proposed wording change, Virginia submitted administrative record information containing a list of normal husbandry practices and related reference materials intended to support the practices identified by Virginia as normal husbandry practices. The Federal regulations at 30 CFR 816/817.116(c)(4) allow State regulatory authorities to select certain husbandry practices that will not extend the period of responsibility for successful revegetation and the bond liability of the permittee. These practices must be expected to continue as part of the postmining land use or that after discontinuance, the likelihood of permanent success is not reduced. Such practices must be submitted through the State program amendment process and must be approved by OSM before the State can implement such practices. Upon review of the materials provided by Virginia, OSM determined that there was no document establishing the list of practices as Virginia policy. In addition, there was no information explaining how the lists and technical references would be used. In a letter to Virginia dated February 23, 1994 (Administrative Record No. VA-836), OSM addressed its concerns with the proposed husbandry practices amendment. Virginia responded by letter dated May 12, 1994 (Administrative Record No. VA-838). The State provided the following clarification. Virginia stated that within 30 days of OSM's approval of the husbandry practices provision, Virginia will issue a policy statement concerning husbandry practices. The draft policy statement submitted by Virginia reads as follows: The Virginia program at 480-03-19.816/817.116(c)(3) provides that the Division may approve selective husbandry practices that may be utilized without extending the period of responsibility for revegetation success and bond liability. On October 1, 1990, DMLR submitted for OSM's approval a limited list of the selected practices that can be used in Virginia. On ____________ OSM published in the Federal Register its final approval of the selected husbandry practices. Pursuant to this program amendment, there are a finite number of husbandry practices that have been approved by OSM. Coal surface mining operations may utilize only this list of practices without extending the bond liability period. For a copy of the program amendment or a description and supporting literature/publications, please contact Jerry Legg at the Division's Big Stone Gap Office. This draft language satisfies one of OSM's concerns about the proposed husbandry practices by making the following point: The list of husbandry practices approved by OSM comprises the only approved husbandry practices which may be used by industry without restarting the period of responsibility for reclamation success and bond liability. The following husbandry practices, were submitted and described by Virginia on October 22, 1993 (Administrative Record Number VA-829). Forestry--Common management practices for the land use of unmanaged forestry that will be allowed in Virginia without the restart of the bonding liability period: Replanting of trees Herbicide application Pest control Repair of rills and gullies as necessary to implement the land use Commercial Forestry--Common management practices for land use of commercial forestry that will be allowed in Virginia without the restart of the bonding liability period: Replanting of trees Herbicide application Basal pruning Insecticide application Mowing Fertilization and liming Repair of rills and gullies as necessary to implement the land use Hayland/Pasture--Common management practices for the land use of hayland/pasture that will be allowed in Virginia without the restart of the bonding liability period: Repair of rills and gullies Application of lime fertilizer Maintenance, weed and brush control Rotation or continuous grazing Reseeding or spot seeding Fencing Commercial, Industrial, Residential, or Recreational--Common management practices for the land uses of commercial, industrial, residential, or recreational that will be allowed in Virginia without the restart of the bonding liability period: Planting or replanting of trees Application of lime and fertilizer Surface roughing or the repair of rills and gullies Seeding or reseeding Irrigation Sodding Weed and pest control Topsoiling and other standard landscaping practices Gravel or asphalt Construct structures In the administrative record information provided by Virginia concerning the husbandry practices of reseeding and spot seeding, these practices are limited to those situations listed below. Hayland/Pasture Periodic reseeding to maintain or improve the desired combination of grasses and legumes. Seeding for weed control. Spot seeding in high traffic areas: e.g., around water troughs, salt licks, and areas damaged by livestock. Seeding of reclaimed rills and gullies. Commercial, Industrial, Residential, or Recreational Reseeding to prevent rill erosion. Seeding to maintain the desired mix of plants. In its May 12, 1994, letter to OSM, Virginia also clarified the following points concerning its implementation of the husbandry practices provision. Virginia proposes to limit the extent of reseeding or spot seeding that it will allow as husbandry practice to a maximum of 10 percent of the applicable area. Virginia will also use the 10- percent figure to limit areas where liming, fertilization, and irrigation may be used in excess of the levels normally applied to similar lands with the same land use. The 10-percent figure is inspired by the Virginia regulations concerning revegetation success. Specifically, VR 480-03- 19.816.116(a)(2) provides that ground cover, production, or stocking shall be considered equal to the approved success standard when they are not less than 90 percent of the approved success standard. The Federal regulations at 30 CFR 816.116(a)(2) have a similar standard. While the 10-percent statistical standard in the revegetation rules does not directly apply to husbandry practices, the proposed limiting of reseeding or spot seeding to 10 percent is reasonable. However, the Director finds that some additional limits must apply. For example, normal husbandry practices do not include large barren blocks of the reclaimed area. On the contrary, large blocks of barren areas (such as a block representing 10 percent of the applicable area) would indicate failed reclamation, not successful revegetation. Additionally, in revegetated areas which pass the established 90-percent standard bare or poorly revegetated areas are likely to be scattered about the applicable area, and not large blocks of barren land. Again, large blocks of barren areas would indicate failed reclamation. Consequently, the reseeding of such large blocks of barren areas representing failed reclamation would be augmentative seeding and would necessitate the restarting of the period of responsibility for reclamation success and bond liability. In addition, the reestablished vegetation must be in place for a sufficient length of time so as not to adversely affect Virginia's ability to make a valid determination at the time of bond release of the success of the reclamation. In the special case of the repair of rills and gullies as part of a forestry postmining land use, the administrative record contains a September 27, 1990, letter from the Virginia Department of Forestry. In that letter, the Regional Forester states that rills and gullies need not be repaired ``as a part of typical forest management unless the magnitude of the gully would interfere with the land use (of forestry).'' The letter goes on to say that rills and gullies often occur naturally in the steep slope areas of the Appalachian Region. OSM agrees that the repair of occasional and minor rills and gullies where proper grading and erosion management is practiced could be considered part of normal forestry management practice. Virginia clarified its interpretation of the degree of allowable repair of rills and gullies. Since erosion is a natural phenomenon, the repair of minor rills and gullies is not viewed by the Virginia program as a violation, nor does it require restarting of the bonding clock. However, the State added, the Virginia program considers erosion that repeatedly creates rills and gullies over a large area as a violation of at least one performance standard and potentially a violation of several standards. When the permittee fails to comply with the Virginia performance standards and rills and gullies repeatedly develop over a large area, Virginia will require restarting of the responsibility period. Virginia has demonstrated, and the Director finds through this amendment, and Virginia's clarifications and administrative record information, that in the State of Virginia, certain specified instances of rill and gully repair associated with land used for Forestry, Commercial forestry, Commercial, industrial, residential, or recreational, and Hayland/pasture will be considered a normal husbandry practice. Virginia also clarified that the husbandry practices for areas designed to enhance fish and wildlife will be consistent with the practices set forth for unmanaged forestry. The Director finds this to be reasonable. Virginia stated that since the Virginia coalfields are primarily located on steep slopes, there has been no incident where cropland, other than hay, has been developed on the postmining land use. Consequently, Virginia has not developed nor proposes any husbandry practice for such croplands. Should the Virginia coalfields expand or crop production become a viable option, the State will develop husbandry practices relevant to those crops and submit them to OSM for approval. Such practices will not be permitted by the State until approved by OSM. The Director concurs with the understanding that the State will submit any new husbandry practices to OSM for approval prior to their being permitted in Virginia. With the exceptions listed below, the Director finds the proposed amendment as augmented by the administrative record information submitted with this amendment, and as clarified by Virginia by letter dated May 12, 1994, is no less effective than the Federal regulations at 30 CFR 816/817.116(c)(4). This finding is made with the understanding that the policy statement to be issued by Virginia concerning normal husbandry practices will be identical in meaning to the draft language of that policy statement submitted to OSM by letter dated May 12, 1994. The Director is not approving as normal husbandry practice the reseeding of large blocks of areas made barren by poor reclamation, or where the reestablished vegetation has not been in place for a sufficient length of time for Virginia to make a valid determination of the success of the reclamation at the time of bond release. 4. VR Sec. 480-03-19.816/817.151(b) Virginia proposes to revise this section by changing the title from ``Embankments'' to ``Safety factor,'' and by changing the language in (b)(1) to (1) reference ``organic material'' rather than ``vegetative material,'' and (2) add the phrase ``or other unsuitable material.'' These changes were proposed by Virginia in response to an issue letter from OSM dated March 20, 1991 (Administrative Record No. VA-792). The issue letter refers to the proposed program amendment submitted by Virginia on October 1, 1990, as discussed herein at II. Submission of Amendment. In that letter, OSM also asked Virginia to amend this rule to reflect that keyway cuts extend a minimum of two feet below the toe of the fill and that material placed in road embankments will be within acceptable moisture content levels. In its current submission, Virginia did not make the suggested changes, but provided clarification intended to show that its current regulations adequately address OSM's concerns. Virginia's Department of Mines, Minerals and Energy (DMME) interprets its existing regulations to require keyway cuts beneath embankments on steep slopes to provide for stability of road embankments. The design of the keyway will be prepared by, or under the direction of, the applicant's registered professional engineer and will be reviewed by a DMME engineer. A minimum width of ten feet is specified and the keyway must be sloped inward in all cases. While other specifications may be proposed by the applicant or required by DMME, taking into account the conditions of the site, DMME believes the general requirement that keyway cuts be constructed at the toe of the road fills on steep slopes and the specific width and slope standards provide sufficient detail to ensure road embankment stability in most site specific cases. However, DMME interprets its regulations to require appropriate design given unusual site specific conditions. DMME retains the authority to require a keyway that has a two foot minimum depth below the toe of a road fill embankment as necessary when the foundations of the embankment is located in bedrock. DMME also feels that its current regulations adequately address OSM's concerns regarding moisture content of materials placed in road embankments on steep slopes. According to DMME, its regulations require such road embankments to be constructed in uniform compacted layers. In order to achieve a desired degree of compaction, materials must be placed within the acceptable range of moisture content. The DMME interprets its rule to embody the requirement that materials must be within the acceptable range of moisture content if the larger performance standard, that of placement in compacted layers, is to be achieved. DMME believes that its existing regulation is as effective as the Federal regulation. The Director finds that based upon the March 20, 1991, letter and the clarification provided by Virginia, that VR 480-03-19.816/817.151(b)(1) through (4) as set forth in Virginia's October 22, 1993, submission is consistent with the Federal rules set forth at 30 CFR 816/817.151, 780.37(c) and 784.24(c). 5. VR Sec. 480-03-19.816/817.152 Virginia proposes to revise the language of this rule relating to the waiver of design standards for existing roads. As originally submitted on October 22, 1993, the proposed language could be read to imply that existing roads do not have to meet the performance standards of VR 480-03-19.816/817.150 and 816/817/151. In its issue letter dated February 23, 1994, OSM suggested new language which would resolve the controversy. In its March 16, 1994, response to the issue letter, Virginia revised the proposed language consistent with OSM's suggestion. The current proposal provides that where existing roads that are to be used meet the performance standards of 816/817.150 and 816/817.151 and it can be demonstrated that reconstruction to meet the design standards of those provisions would result in greater environmental harm, the Division may waive the design requirements. Therefore, the Director finds that the provisions of VR 480-03-19.816/ 817.152, as revised on March 16, 1994, are not inconsistent with the requirements of 30 CFR 701.11(e) which allow existing structures that meet the performance standards but not the design requirements to be exempt from meeting the design requirements. IV. Summary and Disposition of Comments Public Comments The Director solicited public comments and provided an opportunity for a public hearing on the proposed amendment. No public comments were received, and because no one requested an opportunity to speak at a public hearing, no hearing was held. Agency Comments Pursuant to section 503(b) of SMCRA and the implementing regulations of 30 CFR 732.17(h)(11)(i), the Director solicited comments from various Federal agencies with an actual or potential interest in the Virginia program. The U.S. Soil Conservation Service, U.S. Mine Safety and Health Administration, and the Environmental Protection Agency acknowledged receipt of the amendment without comment. Environmental Protection Agency (EPA) Concurrence Under 30 CFR 732.17(h)(11)(ii), the Director is required to obtain the written concurrence of the Administrator of the EPA with respect to any provisions of a State program amendment that relate to air or water quality standards promulgated under the authority of the Clean Air Act (42 U.S.C. 7401 et seq.) or the Clean Water Act (33 U.S.C. 1251 et seq.). The Director has determined that this amendment contains no provisions in these categories and that EPA's concurrence is not required. V. Director's Decision Based on the above findings, the Director approves, with the exceptions noted in Finding 3 above, the proposed amendment with supplemental administrative record information which was submitted by Virginia on October 22, 1993, and as revised on March 16, 1994, and on May 12, 1994. The Federal regulations at 30 CFR 946, codifying decisions concerning the Virginia program, are being amended to implement this decision. This final rule is being made effective immediately to expedite the State program amendment process and to encourage States to bring their programs into conformity with the Federal standards without undue delay. Consistency of State and Federal standards is required by SMCRA. Effect of Director's Decision Section 503 of SMCRA provides that a State may not exercise jurisdiction under SMCRA unless the State program is approved by the Secretary. Similarly, 30 CFR 732.17(a) requires that any alteration of an approved State program be submitted to OSM for review as a program amendment. Thus, any changes to the State program are not operational until approved by OSM. The Federal regulations at 30 CFR 732.17(g) prohibit any unilateral changes to approved State programs. In the oversight of the Virginia program, the Director will recognize only the statutes, regulations and other materials approved by him, together with any consistent implementing policies, directives and other materials, and will require the enforcement by Virginia of only such provisions. VI. Procedural Determinations Executive Order 12866 This rule is exempted from review by the Office of Management and Budget (OMB) under Executive Order 12866 (Regulatory Planning and Review). Executive Order 12778 The Department of the Interior has conducted the reviews required by section 2 of Executive Order 12778 (Civil Justice Reform) and has determined that, to the extent allowed by law, this rule meets the applicable standards of subsection (a) and (b) of that section. However, these standards are not applicable to the actual language of State regulatory programs and program amendments since each such program is drafted and promulgated by a specific State, not by OSM. Under sections 503 and 505 of SMCRA (30 U.S.C. 1253 and 1255) and 30 CFR 730.11, 732.15 and 732.17(h)(10), decisions on proposed State regulatory programs and program amendments submitted by the States must be based solely on a determination of whether the submittal is consistent with SMCRA and its implementing Federal regulations and whether the other requirements of 30 CFR parts 730, 731, and 732 have been met. National Environmental Policy Act No environmental impact statement is required for this rule since section 702(d) of SMCRA [30 U.S.C. 1292(d)] provides that agency decisions on proposed State regulatory program provisions do not constitute major Federal actions within the meaning of section 102(2)(C) of the National Environmental Policy Act (42 U.S.C. 4332(2)(C)). Paperwork Reduction Act This rule does not contain information collection requirements that require approval by OMB under the Paperwork Reduction Act (44 U.S.C. 3507 et seq.). Regulatory Flexibility Act The Department of the Interior has determined that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). The State submittal which is the subject of this rule is based upon counterpart Federal regulations for which an economic analysis was prepared and certification made that such regulations would not have a significant economic effect upon a substantial number of small entities. Accordingly, this rule will ensure that existing requirements previously promulgated by OSM will be implemented by the State. In making the determination as to whether this rule would have a significant economic impact, the Department relied upon the data and assumptions for the counterpart Federal regulations. List of Subjects in 30 CFR 946 Intergovernmental relations, Surface mining, Underground mining. Dated: September 16, 1994. Ronald C. Recker, Acting Assistant Director, Eastern Support Center. For the reasons set out in the preamble, Title 30, Chapter VII, Subchapter T of the Code of Federal Regulations is amended as set forth below. PART 946--VIRGINIA 1. The authority citation for part 946 continues to read as follows: Authority: 30 U.S.C. 1201 et seq. 2. Section 946.15 is amended by adding paragraph (hh) to read as follows: Sec. 946.15 Approval of regulatory program amendments. * * * * * (hh) The following amendment, with supplemental administrative record information, pertaining to the Virginia regulatory program, as submitted to OSM on October 22, 1993, and revised on March 16, 1994, and May 12, 1994, is approved, except as noted herein, effective September 27, 1994. The amendment consists of revisions to the following provisions of the Virginia Coal Surface Mining Reclamation Regulations. ---------------------------------------------------------------------------------------------------------------- VR 480-03-19.816 Topic ---------------------------------------------------------------------------------------------------------------- 816.49(a)(3)(ii)................... Permanent Program Performance Standards--Surface Mining Activities; Impoundments. 816.116(b)(3)(v)(A)................ Permanent Program Performance Standards--Surface Mining Activities; Revegetation: Standards for Success. 816.116(c)(3)...................... Permanent Program Performance Standards--Surface Mining Activities; Revegetation: Standards for Success, except not approved as normal husbandry practice is the reseeding of large blocks of areas made barren by poor reclamation, or where the reestablished vegetation has not been in place for a sufficient length of time for Virginia to make a valid determination of the success of the reclamation at the time of bond release. 816.151(b)......................... Permanent Program Performance Standards--Surface Mining Activities; Primary Roads. 816.152............................ Permanent Program Performance Standards--Surface Mining Activities; Existing Roads. 817.49(a)(3)(ii)................... Permanent Program Performance Standards--Underground Mining Activities; Impoundments. 817.116(b)(3)(v)(A)................ Permanent Program Performance Standards--Underground Mining Activities; Revegetation: Standards for Success. 817.116(c)(3)...................... Permanent Program Performance Standards--Underground Mining Activities; Revegetation: Standards for Success. 817.151(b)......................... Permanent Program Performance Standards--Underground Mining Activities; Primary Roads. 817.152............................ Permanent Program Performance Standards--Underground Mining Activities; Existing Roads. ---------------------------------------------------------------------------------------------------------------- [FR Doc. 94-23826 Filed 9-26-94; 8:45 am] BILLING CODE 4310-05-M