[Federal Register Volume 61, Number 113 (Tuesday, June 11, 1996)]
[Proposed Rules]
[Pages 29506-29508]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-14605]



-----------------------------------------------------------------------


DEPARTMENT OF THE INTERIOR
30 CFR Part 946

[VA-106-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.

-----------------------------------------------------------------------

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 regulatory changes to 
implement the standards of the Federal Energy Policy Act of 1992, and 
the Code of Virginia as amended in 1993. The amendment is intended to 
revise the State program to be consistent with the Federal regulations 
as amended on March 31, 1995 (60 FR 16772).

DATES: Written comments must be received by 4:00 p.m., on July 11, 
1996. If requested, a public hearing on the proposed amendment will be 
held on July 8, 1996. Requests to speak at the hearing must be received 
by 4:00 p.m., on June 26, 1996.

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 Office, 1941 Neeley Road, Suite 201, Compartment 116, 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 May 21, 1996 (Administrative Record No. VA-882), 
Virginia submitted amendments to the Virginia program concerning 
subsidence damage. The amendments are intended to make the Virginia 
program consistent with the Federal regulations as amended on March 31, 
1995 (60 FR 16722). Virginia stated that the proposed amendments 
implement the standards of the Federal Energy Policy Act of 1992, and 
sections 45.1-243 and 45.1-258 of the Code of Virginia.
    Virginia also noted that the State has adopted a revised system for 
numbering the Virginia regulations. For the Virginia program, the 
prefix ``480-03-19'' has been replaced with ``4 VAC 25-130-.'' The part 
of the existing Virginia numbering system that corresponds to the 
Federal number remains the same. For example, old ``480-03-19.700.5'' 
has been ``4 VAC 25-130-700.5.'' The Virginia Division of Mines, 
Minerals and Energy (DMME) will be reprinting the Virginia program 
regulations to incorporate the new prefix, both in the numbering of the 
regulations and in references contained in the regulations. However, 
the DMME is continuing to use the ``480-03-19.'' prefix pending the 
reprint.
    The proposed amendments are as follows:

1. Sec. 480-03-19.700.5  Definitions

    (a) ``Drinking, domestic or residential water supply'' has been 
added to mean water received from a well or spring and any appurtenant 
delivery system that provides water for direct human consumption or 
household use. Wells and springs that serve only agricultural, 
commercial or industrial enterprises are not included except to the 
extent the water supply is for direct human consumption or human 
sanitation, or domestic use.
    (b) ``Material damage, in the context of Secs. 480-03-19.784.20 and 
480-03-19.817.121'' of this chapter has been added to mean:
    (a) Any functional impairment of surface lands, features, 
structures or facilities;
    (b) Any physical change that has a significant adverse impact on 
the affected land's capability to support any current or reasonably 
foreseeable uses or causes significant loss in production or income; or
    (c) Any significant change in the condition, appearance or utility 
of any structure or facility from its presubsidence condition.
    (c) ``Non-commercial building'' has been added to mean any 
building, other than an occupied residential dwelling, that, at the 
time the subsidence occurs, is used on a regular or temporary basis as 
a public building or community or institutional building as those terms 
are defined in Sec. 480-03-19.700.5 of this chapter. Any building used 
only for commercial agricultural, industrial, retail or other 
commercial enterprises is excluded.
    (d) ``Occupied residential dwelling and structures related 
thereto'' has been added to mean, for purposes of Secs. 480-03-
19.784.20 and 480-03-19.817.121, any building or other structures that, 
at the time the subsidence occurs, is used either temporally, 
occasionally, seasonally, or permanently for human habitation. This 
term also includes any building, structure or facility installed on, 
above or below, or a combination thereof, the land surface if that 
building, structure or facility is adjunct to or used in connection 
with an occupied dwelling. Examples of such structures include, but are 
not limited to, garages; storage sheds and barns; greenhouses and 
related buildings, utilities and cables, fences and other enclosures; 
retaining walls; paved or improved patios, walks and driveways; septic 
treatment facilities; and lot drainage and lawn and garden irrigation 
systems. Any structure used only for commercial agricultural, 
industrial, retail or other commercial purposes is excluded.
    (e) ``Replacement of water supply'' has been added to mean, with 
respect to protected water supplies contaminated, diminished, or 
interrupted by coal mining operations, provision of water supply on 
both a temporary and permanent basis equivalent to premining quantity 
and quality. Replacement includes provision of an

[[Page 29507]]

equivalent water delivery system and payment of operation and 
maintenance costs in excess of customary and reasonable delivery costs 
for premining water supplies.
    (a) Upon agreement by the permittee and the water supply owner, the 
obligation to pay such operation and maintenance costs may be satisfied 
by a one-time payment of amount which covers the present worth of the 
increased annual operation and maintenance costs for a period agreed to 
by the permittee and the water supply owner.
    (b) If the affected water supply was not needed for the land use in 
existence at the time of loss, contamination, or diminution, and if the 
supply is not needed to achieve the post mining land use, replacement 
requirements may be satisfied by demonstrating that a suitable 
alternative water source is available and could feasibly be developed. 
If the latter approach is selected, written concurrence must be 
obtained from the water supply owner.

2. Sec. 480-03-19.784.14  Hydrologic Information

    Subsection (e) has been amended by adding new subsection (e)(3)(iv) 
to provide that the probable hydrologic consequences (PHC) 
determination shall contain findings on: ``Whether the underground 
mining activities conducted after October 24, 1992 may result in 
contamination, diminution or interruption of a well or spring in 
existence at the time the permit application is submitted and used for 
domestic, drinking, or residential purposes within the permit or 
adjacent areas.''

3. Sec. 480-03-19.784.10  Subsidence Control Plan

    The existing language of this provision is deleted and replace by 
new language. New subsection (a) provides for a pre-subsidence survey 
that includes a map to identify structures, renewable resource lands 
and drinking, domestic and residential water supplies that subsidence 
may affect; an accompanying narrative; and a pre-subsidence survey of 
all non-commercial buildings or occupied residential dwellings and 
structures related thereto, that may be damaged by subsidence, and a 
survey of the quantity and quality of all drinking, domestic, and 
residential water supplies within the permit and adjacent area that 
could be contaminated, diminished, or interrupted by subsidence.
    Subsection (b) provides for a subsidence control plan. The 
subsidence control plan shall contain a description of the mining 
method; a map of underground workings showing areas of planned 
subsidence, and areas where measures to minimize subsidence and 
subsidence related damage; a description of the overlying rock strata 
that affect the likelihood or extent of subsidence and subsidence 
related damage; a description of monitoring if needed; a description of 
subsidence control measures, except for areas where planned subsidence 
is projected to be used; a description of the anticipated effects of 
planned subsidence, if any; a description of methods to be employed to 
minimize the effects of planned subsidence, or the written consent of 
the owner that such measures not be taken; a description of the 
measures to be taken to replace adversely affected protected water 
supplies or to mitigate or remedy any subsidence related material 
damage to the land and protected structures; and other information as 
specified by the Division of Mined Land Reclamation (DMLR).

4. Sec. 480-03-19.817.41  Hydrologic Balance Protection

    New subsection (j) is added to provide that the permittee must 
promptly replace any drinking, domestic or residential water supply 
that is contaminated, diminished or interrupted by underground mining 
activities conducted after October 24, 1992, if the affected well or 
spring was in existence before the date the DMLR received the permit 
application for the activities causing the loss, contamination or 
interruption. The baseline hydrologic information required in Sec. 480-
03-19.784.14 and the geologic information concerning baseline 
hydrologic conditions required in Sec. 480-03-784.22 will be used to 
determine the impact of mining activities upon the water supply.

5. Sec. 480-03-19.817.121  Subsidence Control

    Subsection (a) concerning measures to prevent or minimize damage is 
amended by adding new language to provide that planned subsidence must 
include measures to minimize material damage to protected structures, 
except if the permittee has written consent of the structure owners, or 
unless the anticipated damage would constitute a threat to health or 
safety, the costs of such measures exceed the anticipated costs of 
repair, or the structure owners deny the permittee access to implement 
the measures to minimize material damage and the permittee provides 
written evidence of good faith efforts to obtain access.
    Subsection (c) has been revised by deleting the existing language 
and replacing new language. The new language provides for the repair of 
damage to surface lands; the repair or compensation for damage to non-
commercial buildings and dwellings and related structures; repair or 
compensation for damage to other structures; rebuttable presumption of 
causation by subsidence; approval of site-specific angle of draw; no 
presumption where access for pre-subsidence survey is denied; rebuttal 
of presumption; information to be considered in determination of 
causation.; and adjustment of bond amount for subsidence damage.

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.

Written 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 received 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 June 26, 1996. 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 response 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.

[[Page 29508]]

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 12988

    The Department of the Interior has conducted the reviews required 
by section 3 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.

Unfunded Mandates

    This rule will not impose a cost of $100 million or more in any 
given year on any governmental entity or the private sector.

List of Subjects in 30 CFR Part 946

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: May 31, 1996.
Allen D. Klein,
Regional Director, Appalachian Regional Coordinating Center.
[FR Doc. 96-14605 Filed 6-10-96; 8:45 am]
BILLING CODE 4310-05-M