[Federal Register Volume 60, Number 227 (Monday, November 27, 1995)]
[Proposed Rules]
[Pages 58320-58322]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-28864]



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DEPARTMENT OF THE INTERIOR
30 CFR Part 946

[VA-104-FOR]


Virginia Regulatory Program

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

ACTION: Proposed rule; public comment period and opportunity for public 
hearing.

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SUMMARY: OSM is announcing receipt 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 consists of five explanatory statements 
written to clarify and assist the implementation of, and compliance 
with, recent changes to Secs. 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 address a required program amendment at 30 CFR 946.16(a).

DATES: Written comments must be received by 4:00 p.m., E.S.T. on 
December 27, 1995. If requested, a public hearing on the proposed 
amendment will be held on December 22, 1995. Requests to speak at the 
hearing must be received by 4:00 p.m., E.S.T. on December 12, 1995.

ADDRESSES: Written comments and requests to speak at the hearing should 
be mailed or hand delivered to Mr. Robert A. Penn, Director, Big Stone 
Gap Field Office at the first address listed below.
    Copies of the Virginia program, the proposed amendment, a listing 
of any scheduled public hearings, and all written comments received in 
response to this document will be available for public review at the 
addresses listed below during normal business hours, Monday through 
Friday, excluding holidays. Each requestor may receive one free copy of 
the proposed amendment by contacting OSM's Big Stone Gap Field Office.

Office of Surface Mining Reclamation and Enforcement, Big Stone Gap 
Field 

[[Page 58321]]
Office, P.O. Drawer 1217, Powell Valley Square Shopping Center, Room 
220, Route 23, Big Stone Gap, Virginia 24219, Telephone: (703) 523-
4303.
Virginia Division of Mined Land Reclamation, P.O. Drawer 900, Big Stone 
Gap, Virginia 24219, Telephone: (703) 523-8100.

FOR FURTHER INFORMATION CONTACT:
Mr. Robert A. Penn, Director, Big Stone Gap Field Office, Telephone: 
(703) 523-4303.

SUPPLEMENTARY INFORMATION:

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 can be 
found at 30 CFR 946.12, 946.13, 946.15, and 946.16.

II. Discussion of the Proposed Amendment

    By letter dated October 31, 1994 (Administrative Record No. VA-
839), Virginia proposed to amend section 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 amendment was submitted to settle 
interpretational differences between Virginia and OSM relative to how 
the coal mine waste regulations apply to waste materials placed in 
backfills.
    Virginia's submittal of the amendment to section 480-03-19.816/
817.102(e) was accompanied by a detailed explanation of the intended 
implementation and scope of the proposed amendment. OSM approved the 
amendment on August 8, 1995 (60 FR 40271) to the extent that the 
amendments are implemented as explained by Virginia in its October 31, 
1994, submittal letter. In addition, OSM also required (at 30 CFR 
946.16(a)) that Virginia further clarify the implementation of the 
changes by amending the Virginia program as follows:
    (1) Define the term ``suitable;''
    (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) Define the term ``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;
    (5) Add a requirement that whenever coal refuse is placed on 
preexisting benches for the purpose of returning the benches to 
approximate original contour (AOC), the performance standards for the 
placement of excess spoil on preexisting benches will be followed.
    By letter dated October 13, 1995 (Administrative Record No. VA-
865), Virginia submitted its response to the required amendments at 30 
CFR 946.16(a). The amendment consists of five statements that are 
attached to a letter to be sent to coal operators, consultants, 
Virginia Division of Mined Land Reclamation (DMLR) personnel, and other 
interested parties. The five statements are intended to clarify the 
intended implementation and scope of the recently approved amendments 
to section 480-03-19.816/817.102(e). The proposed amendments are as 
follows:

1. Clarification of the Term ``Suitable''

    The Department of Mines, Minerals, and Energy (DMME) has not 
promulgated a regulatory definition for the term ``suitable'' as used 
at 480-03-19.816/817.102(e) since the ordinary usage (Webster--
satisfactory for a use or purpose) is intended. DMME will consider 
material suitable provided it is satisfactory for the purpose of 
meeting the Virginia program performance standards for each site 
specific circumstance. For an example, the physical cohesive property 
of a given waste material under specific site conditions will be 
considered suitable provided the required (1.3) static safety factor 
can be achieved and landslides prevented (see 480-03-19.816/817.102(a) 
and (f)). Waste material is considered suitable provided the host site 
conditions, the material's chemical and physical characteristics, and 
the disposal techniques collectively demonstrate compliance with the 
Virginia program performance standards, including sections 480-03-
19.816/817.41, 480-03-19.816/817.74, 480-03-19.816/817.81, 480-03-
19.816/817.95, 480-03-19.816/817.97, 480-03-19.816/817.111-116, and 
480-03-19.816/817.133.

2. Seeps, Springs, or Other Discharges in the Backfill

    The Division of Mined Land Reclamation (DMLR) finds it necessary 
for the applicant to determine and identify in the application the 
location of seeps, springs, or other discharges in any area proposed 
for backfilling with coal mine waste. Such information is crucial to 
the applicant's site selection and backfill design as well as to DMLR's 
environmental impact analysis. DMLR has initiated the process to revise 
its regulations to be more specific with regard to seeps and springs in 
such backfills. In the meantime, DMLR interprets 480-03-19.780.21 (f) 
and (h) and 480-03-19.784.14 (e) and (g) as authority for this 
requirement.

3. Permit Condition/Quarterly Analysis--Clarification

    The Virginia regulations at 480-03-19.773.17(b) provide authority 
for DMLR to impose permit conditions in addition to those mandated by 
this section. When the physical or chemical characteristics of coal 
mine waste used as backfill material are subject to change, DMLR will 
specify a condition in the permit approval document requiring the 
appropriate sampling and analysis necessary to ensure continued 
compliance with the performance standards. (Examples of circumstances 
in which DMLR requires periodic analysis of coal mine refuse, and/or 
backfill include, but is not limited to: Refuse produced by preparation 
plant serving several operations; refuse produced over a large areal 
extent at a single operation; refuse produced by several operations; 
and refuse of varying quality produced at several locations within one 
operation.)

4. ``Small Area''--Clarification

    At 480-03-19.816/817.102(e), the Virginia regulations provide that 
a variance to the requirement at 480-03-19.816/817.83(a)(2) may be 
approved by DMLR provided ``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.
    DMLR intends to consider areas small provided the drainage area is 
500 feet or less as measured along the slope. However, DMLR will grant 
such a variance only when there are no channeled flows, and if during 
storm events, there is only sheet flow.

5. Preexisting Benches--Clarification

    DMLR will approve an application to place coal refuse on 
preexisting benches for the purpose of returning the benches 

[[Page 58322]]
to the approximate original contour provided the performance standard 
for the placement of excess spoil on preexisting benches will be 
followed. The preexisting bench standard are found at 480-03-19.816/
817.74.

III. Public Comment Procedures

    In accordance with the provisions of 30 CFR 732.17(h), OSM is now 
seeking comment on whether the amendments proposed by Virginia satisfy 
the applicable program approval criteria of 30 CFR 732.15. If the 
amendments are deemed adequate, they will become part of the Virginia 
program.

Witten Comments

    Written comments should be specific, pertain only to the issues 
proposed in this rulemaking, and include explanations in support of the 
commenter's recommendations. Comments relieved after the time indicated 
under DATES or at locations other than the Big Stone Gap Field Office 
will not necessarily be considered in the final rulemaking or included 
in the Administrative Record.

Public Hearing

    Persons wishing to comment at the public hearing should contact the 
person listed under FOR FURTHER INFORMATION CONTACT. by close of 
business on December 12, 1995. If no one requests an opportunity to 
comment at a public hearing, the hearing will not be held.
    Filing of a written statement at the time of the hearing is 
requested as it will greatly assist the transcriber. Submission of 
written statements in advance of the hearing will allow OSM officials 
to prepare adequate responses and appropriate questions.
    The public hearing will continue on the specified date until all 
persons scheduled to comment have been heard. Persons in the audience 
who have not been scheduled to comment, and who wish to do so, will be 
heard following those scheduled. The hearing will end after all persons 
scheduled to comment and persons present in the audience who wish to 
comment have been heard.

Public Meeting

    If only one person requests an opportunity to comment at a hearing, 
a public meeting, rather than a public hearing, may be held. Persons 
wishing to meet with OSM representatives to discuss the proposed 
amendments may request a meeting at the Big Stone Gap Field Office by 
contacting the person listed under FOR FURTHER INFORMATION CONTACT. All 
such meetings will be open to the public and, if possible, notices of 
meetings will be posted in advance at the locations listed under 
ADDRESSES. A written summary of each public meeting will be made part 
of the Administrative Record.
    Any disabled individual who has need for a special accommodation to 
attend a public hearing should contact the individual listed under FOR 
FURTHER INFORMATION CONTACT.

IV. 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 the 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 the 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 
corresponding 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: November 9, 1995.
David G. Simpson,
Acting Regional Director, Appalachian Regional Coordinating Center.
[FR Doc. 95-28864 Filed 11-24-95; 8:45 am]
BILLING CODE 4310-05-M