[Federal Register Volume 60, Number 152 (Tuesday, August 8, 1995)]
[Rules and Regulations]
[Pages 40271-40277]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-19509]



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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 946

[VA-103-FOR]


Virginia Regulatory Program

AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM), 
Interior.

ACTION: Final rule; approval of amendment.

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SUMMARY: OSM is approving, with certain exceptions, a proposed 
amendment to the Virginia permanent regulatory program (hereinafter 
referred to as the Virginia program) under the Surface Mining Control 
and Reclamation Act of 1977 (SMCRA). The amendment includes changes to 
sections 480-03-19.816/817.102(e) of the Virginia program relative to 
the disposal of coal processing waste and underground development waste 
in mined-out areas. The amendment is intended to clarify what 
provisions of the coal mine waste disposal regulations apply when 
disposal of coal processing waste or underground development waste 
occurs in mined-out areas for the purpose of backfilling a disturbed 
area.

EFFECTIVE DATES: August 8, 1995.

FOR FURTHER INFORMATION CONTACT: Mr. Robert A. Penn, Director, Big 
Stone Gap Field Office, Office of Surface Mining Reclamation and 
Enforcement, 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 Amendment.
III. Director's Findings.
IV. Summary and Disposition of Comments.
V. Director's Decision.
VI. Procedural Determinations.

I. Background on the Virginia Program

    On December 15, 1981, the Secretary of the Interior conditionally 
approved the Virginia program. 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 are 
identified at 30 CFR 946.12, 946.13, 946.15, and 946.16.

[[Page 40272]]


II. Submission of the Amendment

    By letter dated October 31, 1994 (Administrative Record No. VA-
839), Virginia submitted a proposed amendment to its program pursuant 
to SMCRA. Virginia proposes to amend sections 480-03-19.816/817.102(e) 
to clarify the Virginia regulations that are applicable when coal 
processing waste and underground development waste is used as backfill 
material for mined-out areas. The proposed amendment is intended to 
settle interpretational differences between Virginia and OSM relative 
to how the coal mine waste regulations apply to waste materials placed 
in backfills.
    The proposed amendment was published in the November 16, 1994, 
Federal Register (59 FR 59187), and in the same notice, OSM opened the 
public comment period and provided opportunity for a public hearing on 
the adequacy of the proposed amendment. The comment period closed on 
December 16, 1994.
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 to the Virginia program.

VR 480-03-19.816/817.102(e), Backfilling and Grading: General 
Requirements

    Virginia is amending subsections 102(e) to provide that the 
disposal of coal processing waste and underground development waste in 
the mined-out areas shall be in accordance with new subsections 102(e) 
(1) and (2).
    a. New paragraphs 480-03-19.816/817.102(e)(1) provide that disposal 
of coal processing waste and underground development waste in the 
mined-out area to backfill disturbed areas shall be in accordance with 
480-03-19.816/817.81 (coal mine waste: general requirements). This 
provision differs from the counterpart Federal regulations at 30 CFR 
816/817.102(e) in that the Federal regulations require that the 
disposal of coal processing waste and underground development waste 
placed in the mined-out area shall be in accordance with both 30 CFR 
816/817.81 and 816/817.83. In effect, the proposed amendment will 
eliminate compliance with section 480-03-19.816/817.83, the Virginia 
counterpart to 30 CFR 816/817.83, the performance standards for refuse 
piles, when refuse is used for backfill. Therefore, the Virginia 
program must assure the stability of the backfill material, and the 
prevention of acid or toxic drainage from the backfill.
    In its submittal of this amendment, Virginia provided the following 
explanation of how the regulatory authority will interpret and 
implement Virginia Regulations (VR) 480-03-19.816/817.102(e) (1) to be 
as effective as the counterpart Federal regulations in providing 
environmental safeguards:

    [i] As proposed, VR 480-03-19.816/817.102(e) (1), would apply 
when coal mine waste is placed in a mined-out area as part of the 
backfilling process to restore the approximate original contour 
(AOC) without a change in premining surface elevations. It clarifies 
that compliance with VR 480-03-19.816/817.81, but not VR 480-03-
19.816/817.83, is required.
    [ii] The Virginia proposed regulation distinguishes between 
those standards that are appropriate for a conventional refuse pile 
and those appropriate for areas conventionally backfilled with 
refuse. This is analogues to the way the Virginia program 
distinguishes between excess spoil fills and areas backfilled to 
AOC.
    [iii] Section 480-03-19.816/817.102(f) requires that ``acid and 
toxic-forming material shall not be buried or stored in proximity to 
any drainage course.'' The Virginia Division of Mined Land 
Reclamation (DMLR) interprets this standard to be applicable to acid 
and toxi-forming refuse as well as acid and toxic-forming 
overburden/mine spoil.
    [iv] Pursuant to 480-03-19.816/817.81(c) such backfill design is 
required to be certified by a qualified registered professional 
engineer (RPE) using prudent engineering practices and any criteria 
established by the Division. DMLR considers the determination of 
seeps, springs, or other discharges necessary in the designating of 
a backfill consistent with 480-0319.816/817.81. Thus, coal mine 
waste that is acid or toxic-forming could not be considered as 
suitable for backfill pursuant to proposed 816/817.102(e) unless the 
permittee is able to demonstrate that the material is isolated and 
hydrologically separated from a drainage course.
    [v] The proposed regulation is intended to include the 
hydrologic protection standards of 480-03-19.816/817.41 and 480-03-
19.816/817.102. Through DMLR's hydrologic impact assessment and the 
application of 480-03-19.816/817.102(a)(4), (c), (f), and (g), DMLR 
has ample authority to limit coal mine waste to suitable areas and 
to ensure that appropriate measures are taken to prevent erosion, 
acid/toxic drainage and adverse effects to the hydrologic balance. 
This standard is reinforced by 480-03-19.816/817.81(a)(1) which 
requires, ``Coal mine wastes shall be placed in a controlled manner 
to (1) minimize adverse effects of leachate and surface water runoff 
on surface and ground water quality and quantity.''
    [vi] The Virginia program permits only ``suitable coal mine 
waste materials'' to be used as backfill. Other coal mine waste must 
be placed in a conventional ``refuse pile'' subject to the standards 
of 480-03-19.816/817.102(e), 480-03-19.816/817.81, and 480-03-
19.816/817.83.
    [vii] DMLR finds authority at 480-03-19.816/817.22(b) and (c) to 
require a demonstration of the suitability of coal mine waste both 
during and subsequent to the permitting process. DMLR has always 
been concerned that the characteristics of coal mine waste may 
change when produced over a large aerial extent, from different 
seams, or at different locations. DMLR interprets 480-03-19.816/
817.22(c) as authority to require periodic testing as necessary to 
ensure compliance with the hydrologic protection and other 
performance standards. DMLR finds further support for its 
interpretation at 480-03-19.816/817.102(f). DMLR assures periodic 
testing by imposing a permit condition pursuant to 480-03-19.733.17 
requiring a quarterly analysis of appropriate coal mine waste as it 
is placed in a refuse pile or in the area being backfilled. DMLR has 
regulations, policies, and procedures in place which require 
applicable operations to periodically analyze waste.
    [viii] Since some coal mine waste is not suitable for the 
backfill of pre-existing benches or other mined-out areas, DMLR's 
proposed regulation can only be read to be consistent with the 
defined term ``reasonably available spoil'' which includes the use 
of ``suitable coal mine/waste,'' as backfill material. DMLR 
interprets suitable to be a measure of both chemical and physical 
characteristics. DMLR requires analyses for the chemical 
characteristics during the permitting process before it will 
determine that the material is suitable. DMLR also requires a design 
certified by a qualified RPE demonstrating that the material is 
suitable to achieve a static safety factor of 1.3.
    [ix] DMLR finds authority to require the demonstration of 
suitability at 480-03-19.816/817.102(a)(3), 480-03-19.816/
817.102(f), and 480-03-19.816/817.81(c).
    [x] The proposed regulation still requires compliance with the 
general requirements of coal mine waste handling set forth by 480-
03-19.816.81. These general requirements require among other things 
that waste be placed in a controlled manner to minimize adverse 
effects of leachate and surface water runoff on surface and ground 
water quality and quantity, and ensure mass stability and prevent 
mass movement during and after construction.
    [xi] The regulation as proposed and read in context with the 
entire Virginia program also contains sufficient specificity 
appropriate for ``suitable coal mine waste.'' The material sampling, 
the hydrologic protection standards, and the design and stability 
standards give DMLR ample authority to ensure that backfilling 
operations use suitable material and meet the standards of the 
Virginia program.

    Virginia's construction of the requirements of the Virginia program 
regulations and the explanation of the regulatory authority's 
interpretation of those regulations indicates that the stability of the 
backfill will be ensured. Only coal mine waste that is physically 
suitable for placement will be used in the backfill. The physical 
properties of the material will be determined upon the judgement of a 
qualified RPE. Quality control of these materials will 

[[Page 40273]]
be ensured by periodic testing. All backfill must be certified by the 
RPE as obtaining a minimum safety factor of 1.3.
    While the specifics of the sampling and analyzing program have not 
been described in detail, Virginia has reasonably explained its 
authority and procedures for ensuring that only non-toxic forming 
material will be placed in the backfill areas, or that the permittee 
must demonstrate that the placement of these materials will not result 
in toxic/acid mine drainage. In addition, Virginia also explained that 
the regulatory authority has ample authority to ensure that appropriate 
measures are taken to prevent acid and toxic drainage and adverse 
effects to the hydrologic balance. Such measures could reasonably 
include the addition of limestone or other alkaline materials to the 
backfill when the regulatory authority determined it necessary to 
provide an appropriate measure of safety.
    b. Virginia is proposing to amend paragraph 480-03-19.816/817(e)(2) 
to provide that the disposal of coal processing waste and underground 
development waste in the mined-out area as a refuse pile and not to 
backfill disturbed areas to AOC shall be in accordance with 480-03-
19,816/817.81 and 480-03-19.816/817.83. The Division, may approve a 
variance to 490-03-19.816/817.83(a)(2), concerning drainage controls, 
if the applicant demonstrates that the area above the refuse pile is 
small and that appropriate measures will be taken to direct or convey 
runoff across the surface area of the pile in a controlled manner.
    The proposed language differs from the Federal regulations at 30 
CFR 816/817.102(e) in that the Federal regulations do not provide for a 
variance from the requirements at 30 CFR 816/817.83(a)(2) concerning 
drainage controls. In effect, the proposed variance could eliminate an 
additional safeguard against erosion of the fill.
    In its submittal of this amendment, Virginia provided the following 
explanation of how the regulatory authority will interpret and 
implement 480-0319.816/817.102(e)(2).

    [i] Proposed 480-03-19.816/817.102(e)(2) requires compliance 
with 480-03-19.816/817.81, and 480-03-19.816/817.83 when a refuse 
pile is to be constructed in the mined-out area. In this respect, it 
is identical to the Federal requirements. However, this rule also 
provides for a variance from the surface runoff diversion 
requirements of 480-03-19.816/817.83(a)(2) under certain conditions.
    [ii] The proposed rule at 480-03-19.816/817.102(e)(2) is 
applicable only to coal mine waste piles built in mined-out areas. 
Usually, when a permittee has ``suitable coal mine waste'' and the 
permit area includes previously mined benches, an opportunity exists 
to achieve two separate objectives of the Act. The suitable coal 
mine waste can be used to achieve AOC on the existing benches, thus 
reclaiming AML [abandoned mine lands] that would likely never be 
reclaimed otherwise. Also, by using the suitable coal mine waste on 
the pre-existing benches, the disturbance of off-site areas and 
construction of a conventional refuse pile becomes unnecessary. 
Thus, DMLR is able to minimize areas disturbed or affected by the 
mining operation.
    [iii] It is DMLR's practice to require the placement of suitable 
coal mine waste on pre-existing benches as backfill when sufficient 
and suitable benches are available. However, when the volume of coal 
mine waste will exceed the AOC configuration of the available bench, 
DMLR still prefers placement of the coal mine waste on the bench 
rather than on undisturbed areas. In such cases, DMLR will require 
the construction of the refuse pile to be consistent with both 480-
03-19.816/817.81 and 83.
    [iv] DMLR proposes to grant the variance contained at proposed 
480-03-19.817.102(e)(2) in such case, but only when certain 
conditions are met. DMLR will consider the area above the refuse 
pile as small if there are no channeled flows and if during storm 
events there is only sheet flow. However, DMLR will not grant the 
variance if the drainage area above the pile on any point excess 500 
feet, measured along the slope.
    [v] DMLR will accept only those appropriate measures that can be 
shown, using standard engineering practices to convey the flow 
across the pile safely and prevent erosion. Such practices may 
include sufficient vegetation to prevent erosion or the use of 
terrances that direct runoff from the areas above the refuse pile 
and runoff from the surface of the refuse pile into stabilized 
channels designed to safely pass runoff from the 100-year, 6-hour 
precipitation event.

    As detailed above, Virginia has clarified those instances where a 
variance could be granted. In addition, Virginia has limited the size 
of areas which could qualify for an exemption to ``small'' areas. 
Virginia has defined ``small'' quantitatively as slopes less than 500 
feet in length, and functionally, as zones where runoff during storm 
events is only sheet flow. Virginia has also reasonably explained how 
the Virginia program would safeguard refuse piles in mined-out areas 
from erosion despite an authorization of the proposed variance.
    The Federal regulations at 30 CFR 732.15(a) require that the 
State's laws and rules, collectively, be in accordance with SMCRA and 
consistent with the Federal regulations. That is, the State's statutes, 
rules, policy statements, and similar materials are compared, 
collectively, with the Federal statute and rules, collectively, to 
ensure that the State's program, as a whole, meets the Federal 
requirements. Therefore, while Virginia's proposed provisions are not 
identical to the counterpart Federal regulations, OSM has reviewed the 
Virginia program, collectively, to determine consistency with the 
Federal regulations. The detailed explanation and scope of the proposed 
amendments which were submitted by Virginia on October 31, 1994, 
provide a clear explanation of Virginia's assertion that the Virginia 
program, with the proposed amendments, remains no less effective than 
the Federal regulations.
    The Director concurs that the Virginia program will not be rendered 
less effective than the Federal regulations in controlling erosion, 
preventing acid and toxic drainage, and providing for the stability of 
fills of coal processing waste and underground development waste in 
mined-out areas if the program is implemented as discussed in the 
October 31, 1994, submittal, provided that the required amendments 
discussed below are added to the program.
    The Federal regulations at 30 CFR 816/817.83(a) provide for 
drainage control at refuse piles. Specifically, the regulations require 
diversions and underdrains to control erosion, prevent water 
infiltration into the disposal facility, and to ensure stability if the 
area contains springs, natural or manmade watercourses, or wet weather 
seeps. These provisions pertain most appropriately to piles or deposits 
which, when placed, would interfere with the natural, preexisting 
drainage patterns. Directing drainage away from those refuse piles 
would help prevent the creation of impoundments and would help prevent 
excessive infiltration into the pile that could weaken the structure. 
Diversions and underdrains do not serve those purposes, however, when 
the refuse is used for backfill to return to AOC. That is because the 
AOC complements and assists the area's natural surface drainage 
patterns. Therefore, returning a site to AOC should itself prevent the 
creation of impoundments and other interferences with natural drainage 
patterns. Virginia will not require these diversions and underdrains 
for coal refuse disposals on benches that are only being returned to 
AOC. For the above stated reasons, the Director agrees that Virginia 
need not require placement of underdrains and diversions in coal refuse 
sites returned to AOC.
    The Federal regulations at 30 CFR 816/817.83(b) provide for the 
stabilization and revegetation of surface areas at refuse piles in 
order to minimize surface erosion. The Virginia 

[[Page 40274]]
rules at 480-03-19.816/817.111-116 require the revegetation of all 
disturbed areas following backfilling. In addition, 480-03-19.816/
817.102(a)(4) require that backfilling and grading be performed in a 
manner to minimize erosion and water pollution. These requirements 
serve as counterparts to and are no less effective than the Federal 
requirements at 30 CFR 816/817.83(b) concerning surface area 
stabilization of refuse piles.
    The Federal regulations at 30 CFR 816/817.83(c)(1) require that all 
vegetation and organic materials be removed from the disposal area 
prior to placement of coal mine waste. Where coal mine waste will be 
placed on pre-existing mine benches, the Director is requiring that 
Virginia comply with the Virginia rules at 480-03-19.816/817.74 
concerning placement of excess spoil on pre-existing mine benches. 
Those rules specifically require, at subsection (a), that all 
vegetative and organic materials be removed from the disposal area 
prior to placement. Where coal mine waste will be placed on recently 
mined-out benches, the Director expects that all vegetation and organic 
materials will already have been removed by the mining operations. 
Therefore, Virginia's rules (with the required amendment mentioned 
above) will provide counterparts to and will be no less effective than 
the Federal requirements at 30 CFR 816/817.83(c)(1).
    The Federal regulations at 816/817.83(c)(2) provide that the final 
configuration of the pile shall be suitable for the approved post-
mining land use. Terraces are permitted, but the grade of the outslope 
between terraces shall not be steeper than 2h:1v (50 percent). The 
Virginia rules at 480-03-19.816/817.102(a)(5) provide that disturbed 
areas shall be backfilled and graded to support the approved postmining 
land use. Virginia's rules at 480-03-19.816/817.102(g) allow the use of 
cut-and-fill terraces without imposing any grade limits on the outslope 
between the terraces. However, restricting outslopes to 2h:1v as the 
Federal rule requires for refuse piles may conflict with the 
requirement to return a site to AOC, since premining slopes might have 
exceeded 2h:1v. Furthermore, Virginia requires, at 480-03-19.816/
817.102(a)(3), that postmining slopes not exceed either the angle of 
repose or such lesser slope as is necessary to achieve a minimum long-
term static safety factor of 1.3 and to prevent slides. Therefore, the 
Director concludes that the Virginia program contains adequate 
provisions to ensure the slope stability of any cut-and-fill terraces 
on a site returned to AOC without imposition of an unduly restrictive 
slope standard.
    The Federal regulations at 30 CFR 816/817.83(c)(3) provide that no 
permanent impoundments shall be allowed on the completed refuse pile. 
Virginia has a counterpart to this Federal provision for coal waste 
which is piled to rise above AOC. However, this Federal provision 
doesn't appropriately apply in situations where the backfilled material 
doesn't exceed AOC. In such instances (AOC) the Federal regulations at 
30 CFR 816/817.102(i) do allow the creation of permanent impoundments 
on backfilled areas. Therefore, where coal mine waste is used only to 
return a mined out area to AOC, Virginia need not require compliance 
with its counterparts to 30 CFR 816/817.83(c)(3).
    The Federal regulations at 30 CFR 816/817.83(c)(4) provide for the 
covering of coal mine waste with four feet of the best available, 
nontoxic and noncumbustible material. Virginia has a counterpart to 
these requirements at 480-03-19.816/817.102(f), the general provisions 
for backfilling and grading. Virginia's provision pertains to all 
backfilling operations, and this would include backfilling with coal 
mine waste as Virginia proposes to do. Therefore, the Virginia program 
contains the requirements of 30 CFR 816/817.83(c)(4) and is, therefore, 
no less effective than those regulations.
    The Federal regulations at 30 CFR 816/817.83(d) provide that refuse 
piles shall be inspected during construction by a qualified registered 
professional engineer. These Federal requirements pertain to critical 
periods during the construction of refuse piles. Virginia's use of coal 
refuse to achieve AOC will not result in a refuse pile to which the 
Federal regulations at 30 CFR 816/817.83(d) appropriately apply, since 
there will be no such critical construction periods. Therefore, the 
lack of an inspection requirement for coal refuse being used to achieve 
AOC does not render the Virginia program less effective.
    However, OSM is concerned that key points of Virginia's explanation 
may not be enforceable because they are not currently part of the 
approved Virginia program. For example, Virginia stated that some coal 
mine waste is not ``suitable'' for the backfill of pre-existing benches 
or other mined-out areas. The term ``suitable'' is used several times 
in Virginia's explanation of the proposed amendments, but the term is 
not defined. The State did say, however, that the DMLR interprets 
``suitable'' to be a measure of both chemical and physical 
characteristics. The term ``suitable'' needs to be defined. Such a 
definition should clarify ``suitable'' so that the regulatory authority 
can consistently apply the term appropriately. The definition should 
clarify the criteria, both physical and chemical, to be used to 
distinguish between materials which can and cannot be used for the 
backfilling of pre-existing benches or mined-out areas.
    Virginia stated that the DMLR considers the determination of seeps, 
springs, or other discharges necessary in the designing of a backfill 
consistent with 480-03-19.816/817.81. Such a determination would be 
crucial to efforts to successfully prevent acid or toxic drainage. A 
requirement to provide this crucial information is not explicitly 
required by the Virginia program, but should be.
    Virginia stated that the DMLR assures periodic testing by imposing 
a permit condition pursuant to 480-03-19.773.17 requiring a quarterly 
analysis of appropriate coal mine waste as it is placed in a refuse 
pile or in the area being backfilled. 480-03-19.773.17 does not, 
however, specifically require the imposition of such a permit 
condition. This important permit condition should be added to the 
Virginia program at 480-03-19.773.17.
    In its discussion of the proposed amendment at 480-03-19.816/
817.102(e)(2), Virginia stated that the proposed variance from the 
requirement to direct water around the refuse pile would only be 
granted if the area above the refuse pile is ``small.'' The term 
``small'' was explained to mean that there are no channeled flows and 
that during storm events, there is only sheet flow. Additionally, the 
DMLR would not grant the variance if the drainage area above the pile 
on any point exceeds 500 feet, measured along the slope. These 
important criteria should be added to the Virginia program as a 
definition.
    Both the Federal regulations at 30 CFR 816/817.83(a)(2) and the 
Virginia rules at 480-03-19.816/817.83(a)(2) prohibit the flow of 
uncontrolled surface drainage over the outslope of a refuse pile. 
Virginia will not grant a variance to the diversion requirements 
contained in this same subdivision, unless the operator can demonstrate 
that drainage over the outslope of the refuse pile will be controlled.
    Further, the Director finds that runoff above the refuse pile need 
not be diverted around the surface of the pile so long as that runoff 
is not channeled flow (either natural or constructed) but is restricted 
to sheet flow only. Virginia has assured OSM that it will inspect these 
areas above the refuse piles until 

[[Page 40275]]
final bond release to ensure that channeled flows do not form in those 
areas. Should such channeled flows subsequently develop, Virginia must 
require the operators to repair and revegetate the area to return to 
sheet flow, or construct diversions of that flow so that it goes around 
the pile rather than over the pile in channeled flow. The Director 
notes that limiting the area above the pile to 500 feet along the slope 
provides an additional restriction to approval of the variance.
    Therefore, the Director finds, to the extent that the proposed 
amendments will be implemented as explained by Virginia in its October 
31, 1994, submittal to OSM, that the proposed amendments at 480-03-
19.816/817.102(e) (1) and (2) can be approved. However, in addition, 
the Director is requiring that Virginia further clarify the 
implementation of these amendments by amending the Virginia program as 
follows: (1) Define the term ``suitable.'' The definition should 
clarify the criteria, both physical and chemical, to be used to 
distinguish between materials which can and cannot be used for the 
backfilling of pre-existing benches or mined-out areas; (2) add a 
requirement to the Virginia rules to explicitly require the 
determination of the location of seeps, springs, or other discharges in 
the designing of a backfill; (3) add to 480-03-19.773.17 a specific 
requirement that a permit condition be imposed requiring a quarterly 
analysis of coal mine waste as it is placed in a refuse pile or in an 
area being backfilled; and (4) add a definition of ``small'' to mean 
that there are no channeled flows, that during storm events there is 
only sheet flow, and that no variance would be approved if the drainage 
area above the pile on any point exceeds 500 feet, measured along the 
slope.
    Finally, the Director finds that where coal refuse will be placed 
on pre-existing benches (for the purpose of returning benches to OAC), 
Virginia must require compliance with its performance standards at 480-
03-19.816/817.74 concerning the placement of excess spoil on pre-
existing benches. Compliance with these performance standards is 
necessary because coal refuse presents at least as many stability 
problems as does the placement of excess spoil on pre-existing benches. 
While Virginia recognizes this need and currently requires that the 
placement of coal refuse on pre-existing benches (for the purpose of 
returning to AOC) meet the standards concerning the placement of excess 
spoil on pre-existing benches, those requirements are not codified in 
the Virginia program. Therefore, the Director is requiring that the 
State amend the Virginia program by adding a requirement that whenever 
coal refuse is placed on pre-existing benches for the purposes of 
returning the benches to AOC, the performance standards for the 
placement of excess spoil on pre-existing benches will be followed. 
This requirement can be in the form of either a regulation or an 
official policy statement.

IV. Summary and Disposition of Comments

Federal Agency Comments

    Pursuant to section 503(b) of SMCRA and 30 CFR 732.17(h)(11)(i), 
comments were solicited from various interested Federal agencies. The 
Fish and Wildlife Service (FWS) of the U.S. Department of the Interior 
expressed concern that the proposed amendments may negatively affect 
water quality, and thus potentially affect Federal listed threatened 
and endangered aquatic species in southwestern Virginia (Administrative 
Record Number VA-848). FWS further stated that on December 12, 1994, 
FWS met with DMLR to discuss the proposed amendments and visit active 
mine sites with ongoing backfill activities. FWS learned that despite 
the proposed amendments, all downgradient surface water runoff controls 
for all disturbed areas are still required by the Virginia program. 
Additionally, the ``suitability'' of the material for purposes of 
backfilling or disposing as a refuse pile must be demonstrated by tests 
for acidity, and the Virginia program continues to prohibit the burial 
or storage of acid- and toxic-forming materials in proximity to any 
drainage course. It is clear, FWS stated, that all current regulations 
will continue in force that require treatment of surface water runoff 
from the entire disturbed area. The FWS concluded that the proposed 
amendments are not likely to adversely affect listed species or 
critical habitat.
Public Comments

    A public comment period and opportunity to request a public hearing 
was announced in the November 16, 1994, Federal Register (59 FR 59187). 
The comment period closed on December 16, 1994. No comments were 
received and no one requested an opportunity to testify at the 
scheduled public hearing so no hearing was held.

Environmental Protection Agency (EPA)

    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 Water 
Act (33 U.S.C. 1251 et seq.) or the Clean Air Act (42 U.S.C. 7401 et 
seq.). The Director has determined that this amendment contains no 
provisions in these categories and that EPA's concurrence is not 
required.
    Pursuant to 732.17(h)(11)(i), OSM solicited comments on the 
proposed amendment from EPA. EPA responded on December 6, 1994 
(Administrative Record Number VA-845), and on January 19, 1995 
(Administrative Record Number VA-849). The EPA expressed concerns with 
potential pollution from the proposed coal refuse disposal on abandoned 
steep mining areas. In particular, EPA was concerned that the proposed 
allowance of hillside runoff from ``small'' drainage areas over the 
refuse pile could result in acid and toxic seepage and runoff.
    Virginia indicated to EPA that construction of ditches along the 
top of the steep mined areas to divert the runoff around the disposal 
sites would be impractical due to the unstable nature of abandoned 
highwalls. Virginia also stated that acid and toxic refuse would not be 
regarded as suitable for such disposal unless isolated and 
hydrologically separated from drainage courses. Virginia also indicated 
to the EPA that refuse would be tested in the permitting stage for 
suitability as well assuring the placement stage.
    The EPA stated that disposal of coal refuse on abandoned mine 
sites, such as proposed by Virginia or in any other manner, is subject 
to effluent guideline limits as described in 40 CFR 434 subpart B for 
Coal Preparation Plant Associated Areas during the active and 
reclamation stages. However, even if treatment during these stages 
results in compliance with effluent guideline limits and water quality 
standards, a major concern is the potential of perpetual acid and toxic 
drainage after closure. EPA stated that it is important to emphasize 
that any refuse disposal sites which will be exposed to any runoff or 
infiltration should be free of acid or toxic forming substances. Even 
where no such substances are initially evident, EPA said, diversion of 
runoff to the extent possible should be provided and limestone or other 
alkaline materials should be added to the refuse for added safety. The 
Director notes that Virginia explained in its October 31, 1994, 
submittal that the State regulatory authority has ample authority to 
ensure that appropriate measures are taken to prevent acid and toxic 
drainage and adverse affects to the hydrologic balance. Virginia also 
continues to 

[[Page 40276]]
prohibit the burial or storage of acid- and toxic-forming materials in 
proximity to any drainage course.

V. Director's Decision

    Based on the findings above, the Director is approving Virginia's 
amendment concerning coal refuse disposal as submitted by Virginia on 
October 31, 1994, to the extent that the proposed amendments will be 
implemented as explained by Virginia in its October 31, 1994, submittal 
to OSM.
    In addition, the Director is requiring that Virginia further 
clarify the implementation of these amendments by amending the Virginia 
program as follows: (1) Define the term ``suitable.'' The definition 
should clarify the criteria, both physical and chemical, to be used to 
distinguish between materials which can and cannot be used for the 
backfilling of pre-existing benches or mined-out areas; (2) add a 
requirement to the Virginia rules to explicitly require the 
determination of the location of seeps, springs, or other discharges in 
the designing of a backfill; (3) add to 480-03-19.773.17 a specific 
requirement that a permit condition be imposed requiring a quarterly 
analysis of coal mine waste as it is placed in a refuse pile or in an 
area being backfilled; (4) add a definition of ``small'' to mean that 
there are no channeled flows, that during storm events there is only 
sheet flow, and that no variance would be approved if the drainage area 
above the pile on any point exceeds 500 feet, measured along the slope; 
and (5) add a requirement that whenever coal refuse is placed on pre-
existing benches for the purpose of returning the benches to AOC, the 
performance standards for the placement of excess spoil on pre-existing 
benches will be followed.
    The Federal regulations at 30 CFR Part 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 enforceable 
until approved by OSM. The Federal regulations at 30 CFR 732.17(g) 
prohibit any unilateral changes to approved State programs. In his 
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 subsections (a) and (b) of that section. 
However, these standards are not applicable to the actual language of 
State regulatory programs and program amendments since each such 
program is drafted and promulgated by a specific State, not by OSM. 
Under sections 503 and 505 of SMCRA (30 U.S.C. 1253 and 1255) and 30 
CFR 730.11, 732.15 and 732.17(h)(10), decisions on proposed State 
regulatory programs and program amendments submitted by the States must 
be based solely on a determination of whether the submittal is 
consistent with SMCRA and its implementing Federal regulations and 
whether the other requirements of 30 CFR Parts 730, 731, and 732 have 
been met.

National Environmental Policy Act

    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 Part 946

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: July 27, 1995.
Allen D. Klein,
Regional Director, Appalachian Regional Coordinating Center.

    For the reasons set out in the preamble, Title 30, Chapter VII, 
Subchapter T of the Code of Federal Regulations is amended as set forth 
below:

PART 946--VIRGINIA

    1. The authority citation for Part 946 continues to read as 
follows:

    Authority: 30 U.S.C. 1201 et seq.

    2. In Sec. 946.15, paragraph (ii) is added to read as follows:


Sec. 946.15  Approval of regulatory program amendments.

* * * * *
    (ii) The following amendment to the Virginia program at 480-03-
19.816/817.102(e) (1) and (2) concerning coal refuse disposal as 
submitted to OSM on October 31, 1994, is approved to the extent that 
the proposed amendments will be implemented as explained by Virginia in 
its October 31, 1994, submittal to OSM, effective August 8, 1995.
    3. In section 946.16, paragraph (a) is added to read as follows:


Sec. 946.16  Required regulatory program amendments.

* * * * *
    (a) By September 1, 1995, or another date approved by the Office of 
Surface Mining Reclamation and Enforcement, Virginia shall further 
clarify the 

[[Page 40277]]
implementation of 480-03-19.816/817.102(e) (1) and (2) by amending the 
Virginia program as follows:
    (1) Define the term ``suitable.'' The definition should clarify the 
criteria, both physical and chemical, to be used to distinguish between 
materials which can and cannot be used for the backfilling of pre-
existing benches or mined-out areas;
    (2) Add a requirement to the Virginia rules to explicitly require 
the determination of the location of seeps, springs, or other 
discharges in the designing of a backfill;
    (3) Add to 480-03-19.773.17 a specific requirement that a permit 
condition be imposed requiring a quarterly analysis of coal mine waste 
as it is placed in a refuse pile or in an area being backfilled;
    (4) Add a definition of ``small'' to mean that there are no 
channeled flows, that during storm events there is only sheet flow, and 
that no variance would be approved if the drainage area above the pile 
on any point exceeds 500 feet, measured along the slope; and
    (5) Add a requirement that whenever coal refuse is placed on pre-
existing benches for the purpose of returning the benches to AOC, the 
performance standards for the placement of excess spoil on pre-existing 
benches will be followed.
* * * * *
[FR Doc. 95-19509 Filed 8-7-95; 8:45 am]
BILLING CODE 4310-05-M