[Federal Register Volume 62, Number 180 (Wednesday, September 17, 1997)]
[Rules and Regulations]
[Pages 48758-48765]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-24682]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 946

[VA-106-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 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 proposed amendment consists of regulatory changes 
to implement the standards of the Federal Energy Policy Act of 1992, 
and the Code of Virginia. 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) concerning subsidence damage.

EFFECTIVE DATE: September 17, 1997.

FOR FURTHER INFORMATION CONTACT: Mr. Robert A. Penn, Director, Big 
Stone Gap Field Office, Office of Surface Mining Reclamation and 
Enforcement, 1941 Neeley Road, Suite 201, Compartment 116, Big Stone 
Gap, Virginia 24219, Telephone: (540) 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 946.11, 946.12, 946.13, 946.15, and 946.16.

II. Submission of the 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 become ``4 VAC 25-130-700.5.'' The Virginia Division of Mines,

[[Page 48759]]

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 amendment was published in the June 11, 1996, Federal 
Register (61 FR 29506), 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 July 
11, 1996. The public comment period was reopened on July 24, 1996 (61 
FR 38422), to accept additional comments on the proposed use of a 28-
degree angle of draw with the rebuttable presumption of causation by 
subsidence provision. That comment period ended on August 8, 1996. On 
September 12, 1996 (61 FR 48110), OSM announced a scheduled public 
hearing on the proposed amendments. The hearing was held on September 
18, 1996 (Administrative Record Number VA-896).
    By letter dated July 11, 1996 (Administrative Record Number VA-
894), OSM requested that Virginia provide additional information on the 
proposed amendments, including technical justification for the use of 
the 28 degree angle of draw. Virginia responded to that request for 
additional information by letter dated January 3, 1997 (Administrative 
Record Number VA-902). Virginia also submitted to OSM on March 20, 
1997, changes to correct minor punctuation and typographical errors 
Administrative Record Number (VA-914). OSM reopened the public comment 
period on April 7, 1997, to provide for public comment on Virginia's 
technical justification of the proposed use of the 28 degree angle of 
draw. The comment period closed on April 22, 1997 (62 FR 16509).

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.
    The amendments proposed by Virginia are as follows:

1. Section 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.
    The Director finds this definition to be identical to and no less 
effective than the counterpart Federal definition at 30 CFR 701.5.
    (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.
    The Director finds this definition to be substantively identical to 
and no less effective than the counterpart Federal definition at 30 CFR 
701.5.
    (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.
    The Director finds this definition to be substantively identical to 
and no less effective than the counterpart Federal definition at 30 CFR 
701.5.
    (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 subsistence 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 residential 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 sewage 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 (hereinafter referred to in this preamble as 
``protected structure'').
    The Director finds this definition to be substantively identical to 
and no less effective than the counterpart Federal definition at 30 CFR 
701.5.
    (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 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 in an 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.
    The Director finds this definition to be identical to and no less 
effective than the counterpart Federal definition at 30 CFR 701.5.

2. Section 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.''
    The Director finds this provision to be identical to and no less 
effective than

[[Page 48760]]

the counterpart Federal provision at 30 CFR 784.14(e)(3)(iv).

3. Section 480-03-19.784.20  Subsidence Control Plan

    The existing language of this provision is deleted and replaced 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).
    The Director finds this provision to be substantively identical to 
and no less effective than the counterpart Federal provision at 30 CFR 
784.20 concerning subsidence control plan.

4. Section 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. 480-03-19.784.22 will be used to 
determine the impact of mining activities upon the water supply.
    The Director finds this provision to be substantively identical to 
and no less effective than the counterpart Federal provision at 30 CFR 
817.41(j) concerning drinking, domestic or residential water supply.

5. Section 480-03-19.817.121  Subsidence Control

    Subsection (a) concerning measures to prevent or minimize damage is 
amended by adding new language (at new subsection (a)(2)) 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.
    The proposed language is substantively identical to and no less 
effective than the counterpart Federal language at 30 CFR 817.121(a)(2) 
with one exception. 30 CFR 817.121(a)(2) contains no counterpart to the 
proposed language that provides an exception to the requirement to 
include measures to minimize material damage to protected structures if 
the structure owners deny the permittee access to implement the 
measures to minimize material damage.
    ``Planned subsidence in a predictable and controlled manner'' 
includes longwall mining and pillar retreat mining. Mitigation efforts 
for longwall mining are performed on the surface. Such efforts include 
trenching, bracing or jacking of the protected structure. These 
mitigation measures remain in place while the ground underneath the 
structure subsides, keeping the structure level. For example, jacks 
cannot be placed in the underground mine because longwall machinery 
moves as one continuous unit and cannot ``skip'' over the area under 
the structure. Thus, if a permittee conducting longwall operations 
(``longwall permittee'') is denied access to a protected structure, it 
is not viable for the longwall permittee to place jacks under the 
structure or place braces/trenches around the structure. However, if 
the planned subsidence involves pillar retreat mining, then mitigation 
efforts could be performed underneath the protected structure 
regardless of whether or not a structure owner denied the permittee 
access to his structure. The permittee in a pillar retreat operation 
could protect the structure by either leaving the pillars of coal under 
and surrounding the protected structure or replacing the pillars of 
coal with a support. Thus, Virginia's proposal with regard to longwall 
mining operations is consistent with the federal rule at 30 CFR 
817.121(a)(2) which requires measures to minimize subsidence damage 
only when such measures are ``consistent with the mining method 
employed'' and ``technologically feasible.''
    OSM was also concerned about whether or not the structure owner 
would be notified by the longwall permittee of the consequences of 
failing to allow access for the placement of mitigation measures. Since 
Virginia's proposal had no direct federal counterpart, there was no 
direct federal notice counterpart. The Federal regulation at 30 CFR 
784.20(a)(3) provide a relevant comparison. 30 CFR 784.20(a)(3) 
provides that, if an owner denies access for a pre-mining survey, the 
permittee must provide certain information to the landowner concerning 
the potential negative effect of their actions, but the lack of access 
does not prevent the permittee from mining. Virginia, by a letter dated 
January 3, 1997, (Administrative Record Number VA-902) clarified that 
under 480-03-19.817.121(a)(2)(iii), the permittee must provide a 
written document to the structure owner informing the owner of the 
consequences of denying access. Further, the permittee must provide 
Virginia with evidence documenting such notice.
    Accordingly, the Director finds that with respect to longwall 
permittees, the proposed language is consistent with the Federal 
regulations and is approving 480-03-19.817.121(a)(2)(iii) to the extent 
it applies to longwall permittees. The Director notes that denial of 
entry to the longwall permittee to perform mitigation measures does not 
relieve the longwall permittee from the obligation to comply with the 
repair or compensation requirements of 30 CFR 817.121(c)(4).
    Subseciton (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

[[Page 48761]]

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.
    The Director finds the proposed provision to be substantively 
identical to and no less effective than the counterpart Federal 
provision at 30 CFR 817.121(c)(4) with a few exceptions.
    a. Virginia's regulation at Sec. 480-03-19.817.121(c)(4)(i), 
creates a rebuttable presumption that subsidence caused damage to a 
protected structure if that structure is within an area that is 
``determined by projecting a specified angle of draw from the outermost 
boundary of any underground mine workings to the surface of the land.'' 
Virginia's language is substantively identical to the federal 
regulation at 30 CFR 817.121(c)(4)(i). However, in a letter dated 
January 3, 1997 from Virginia to OSM (Administrative Record Number VA-
902), Virginia stated that the ``Division will continue to measure 
angle of draw from the edge of high extraction mining areas, where 
subsidence is likely to occur (areas where 50% or more of the coal has 
been removed).'' This interpretation by Virginia is inconsistent with 
the Federal rules. The angle of draw is defined in the preamble to the 
1995 Federal rules on subsidence as ``the angle of inclination between 
the vertical at the edge of the underground mine workings and the point 
of zero vertical displacement at the edge of the subsidence trough.'' 
60 FR 16722, 16738 (March 31, 1995). OSM does not limit the angle of 
draw to high extraction areas. Thus, Virginia's interpretation could 
create a smaller area within which the presumption of causation would 
apply. Accordingly, since Virginia's language is substantively 
identical to the federal regulation, OSM is approving Sec. 480-30-
19.817.121(c)(4)(i) to the extent it is interpreted consistently with 
the plain language of 30 CFR 817.121(c)(4)(i). OSM is not approving 
Sec. 480-03-19.817.121(c)(4)(i) to the extent it will be applied in a 
manner consistent with the plain language of the federal rule that 
states the angle of draw will be projected ``from the outermost 
boundary of any underground mine workings to the surface of the land.''
    Virginia is also adding language to allow for the approval of the 
site-specific angle of draw. This language is substantive identical to 
30 CFR 817.121(c)(4)(ii). However, as noted above Virginia is not 
interpreting how the angle of draw will be determined in a manner 
consistent with the federal rules. Therefore, OSM is approving 
Sec. 480-03-19.817.121(c)(4)(ii) to the extent it is interpreted 
consistently with the plain language of 30 CFR 817.121(c)(4). OSM is 
not approving Sec. 480-03-19.817.121(c)(4)(ii) to the extent it will be 
applied in a manner inconsistent with the plain language of the federal 
rule.
    (b) At proposed at Sec. 480-03-17.817.121(c)(4)(i), Virginia has 
provided for a 28-degree angle of draw rather than the 30-degree angle 
of draw provided in the Federal regulations at 30 CFR 817.121(c)(4)(i).
    OSM approved the Federal regulations concerning angle of draw at 30 
CFR 817.121(c)(4) on March 31, 1995 (60 FR 16722-16751). The preamble 
to the approval of 817.121(c)(4) appears on pages 16737 through 16741. 
That preamble presents OSM's explanation for approval of the 30-degree 
angle of draw and the flexibility which allows states to apply for an 
angle of draw other than the 30-degree angle of draw, and an 
explanation of how the angle of draw is implemented.

    The purpose of paragraph 30 CFR 817.121(c)(4) is to set out a 
procedure under which a specified area would be subject to a 
rebuttable presumption that subsidence from underground mining 
caused surface damage to non-commercial buildings or occupied 
residential dwellings and related structures. This evidentiary 
standard would simplify establishing causation of subsidence damage 
in many cases, by relieving the regulatory authority of the initial 
burden of providing evidence that damage was caused by the mine 
operation. [60 FR at 16737]
    The presumption would be established only after it is determined 
that damage caused by earth movement did in fact occur within the 
specified angle of draw. The burden of rebutting the presumption 
will be appropriately on the mine operator, who will have the best 
information as to the nature, timing, and sequence of mining 
activities, geological conditions, etc.; i.e., the types of facts 
directly related to causation of the damage. [60 FR at 16737]
    OSM believes that the establishment of a specific angle for the 
presumption is important and has a number of effects or 
ramifications. In any enforcement proceedings concerning allegations 
of subsidence damage to protected structures, it will affect the 
initial burdens of going forward with the evidence for both the 
regulatory authority and the permittee * * * [o]nce the angle of 
draw is established, permit applicants will be required to comply 
with all presubsidence survey requirements covering at least the 
area within the angle of draw * * * OSM believes [that] applying the 
presumption to a specified angle of draw will balance the various 
purposes of SMCRA, including both environmental protection and the 
SMCRA section 102(k) purpose of encouraging the full utilization of 
coal resources through the application of under ground extraction 
technologies. (60 FR at 16737-16738)

    The ``angle of draw'' is the angle formed between a line drawn 
vertically from the edge of the underground workings upward to the 
surface, and a line drawn from that same point on the edge of the 
underground workings up to the surface through the point at the outside 
edge of a subsidence trough where the subsidence has diminished to 
zero. Therefore, ``the angle of draw is one way to define the outer 
boundary of subsidence displacement that may occur at the surface.'' 
(60 FR at 16738)
    In practice (in accordance with 817.121(c)(4)), such an angle of 
draw is drawn upward from all points along the outermost boundary of 
any (all) underground mine workings. Therefore, it is presumed 
(rebuttable) that damage caused by earth movement to protected 
structures that are either directly above mine workings or within the 
specific angle of draw of those workings, has been caused by the 
permittee. The Director notes that the purpose of the use of an angle 
of draw is not to prevent mining or subsidence. The purpose of the use 
of an angle of draw is to ease the initial investigative burden on the 
regulatory authority in those cases where the probability is high that 
damage by earth movement was caused by the underground mining 
operations.
    While recognizing regional and site-specific variability in the 
angle of draw, OSM decided to establish a national standard of 30 
degrees. This is consistent with the outer limits determined for earth 
movement in most subsidence studies across the United States, 
particularly later studies addressing long wall mining * * *. This 
nationwide standard is conservative'' (most subsidence is expected to 
take place within this angle of draw) and ``offers reasonable 
protection to surface owners anticipated subsidence scenarios.'' (60 FR 
at 16739)
    On the other hand, while the Federal standard is conservative, it 
was not intended to encompass 100 percent of possible subsidence 
damage. OSM concluded that such a standard would place an unreasonable 
burden on the permittee with regard to pre-subsidence survey 
obligations. Some causes will likely occur where earth movement has 
caused damage to protected structures, but those structures may be 
outside of

[[Page 48762]]

the angle of draw standard. In those cases, the State regulatory 
authority will not have the benefit of the presumption of causation. 
The regulatory authority must, nevertheless, investigate such 
occurrences to obtain the evidence necessary to determine whether or 
not such damage is caused by the permittee.
    Although the Federal regulation provides that the presumption shall 
apply to a 30-degree angle of draw, 30 CFR 817.121(c)(4)(i) allows the 
States to establish a different angle of draw if the State shows in 
writing that the angle has a more reasonable basis than the 30-degree 
angle of draw, based on geotechnical analysis of the factors affecting 
potential surface impacts of underground coal mining operations in the 
State. Such an angle of draw should be the angle within which vertical 
displacement of the surface is reasonably expected. Further, the 
Federal rule ensures that the regulatory authority also has the 
flexibility to establish a different angle of draw on a site-specific 
basis, where such variation is justified by appropriate geotechnical 
analysis.
    By letter dated January 3, 1997 (Administrative Record Number VA-
902), Virginia submitted information to OSM that is intended to show 
that a 28-degree angle of draw has a more reasonable basis for Virginia 
than the 30-degree angle of draw. Virginia's justification for the 
proposed 28-degree angle of draw is based on a review of existing 
literature, information submitted by consultants on permit 
applications, and the use of the Surface Deformation Prediction System 
(SDPS) computer modeling software to predict the zero point of movement 
on the surface (Angle of Draw). The detailed information presented by 
Virginia shows Angle of Draw ranging from 16 to 21 degrees in Dickenson 
County, general angle of draw statement for the eastern coal fields as 
21 to 26 degrees from published literature, and detailed surface 
subsidence measurements by coal companies over long wall mines of 7 to 
15 degrees. The SDPS computer subsidence model predicts 13 to 15. The 
28-degree angle of draw proposed by Virginia is well outside of any of 
the above data and, therefore, is the angle within which vertical 
displacement of the surface is reasonably expected.
    The Director finds that Virginia has provided sufficient written 
justification based on a geotechnical analysis of the factors affecting 
potential surface impacts for the proposed use of a 28-degree angle of 
draw in accordance with 30 CFR 817.121(c)(4)(i). Therefore, the 
Director is approving Virginia's use of the 28-degree angle of draw so 
long as it is to be measured from the outermost boundary of any 
underground mine workings to the surface of the land. The Director 
notes, as discussed above, that it is possible that earth movement that 
causes damage to protected structures that are outside the 28-degree 
angle of draw standard could occur. In those cases, Virginia will not 
have the benefit of the presumption of causation. Virginia must, 
nevertheless, investigate such occurrences to obtain the evidence 
necessary to determine whether or not such damage is caused by the 
permittee.
    c. New Sec. 480-03-19.817.121(c)(5) of the Virginia rules is 
substantively identical to the counterpart Federal regulations except 
that Virginia has also added the following. Virginia provides that no 
additional bond is required if the permittee demonstrates that the 
liability insurance required under Sec. 480-03-19.800.60 provides 
applicable coverage.
    There is no direct Federal counterpart to the proposed language at 
30 CFR 817.121(c)(5). However, the preamble to the Federal provision at 
30 CFR 817.121(c)(5) (see 60 FR 16741-16742; March 31, 1995) 
specifically addresses the option that would be implemented by the 
Virginia language. In that preamble, OSM stated that under 30 CFR 
800.14(c), if the liability insurance policy required under section 30 
CFR 800.60 would provide coverage sufficient to fund the reclamation of 
subsidence damage, that insurance may be substituted for increased 
bond. Therefore, the Director finds that Virginia's proposed language 
is consistent with and no less effective than 30 CFR 817.121(c)(5).

IV. Summary and Disposition of Comments

Federal Agency Comments

    Pursuant to section 503(b) SMCRA and 30 CFR 732.17(h)(11)(I), 
comments were solicited from various interested Federal agencies. The 
U.S. Department of Labor, Mine Safety and Health Administration (MSHA) 
responded (Administrative Record Number VA-888) and stated that the 
proposed amendments pose no conflict with MSHA regulations. The U.S. 
Fish and Wildlife Service (FWS) responded and stated that the FWS has 
reviewed the amendments and has determined that it appears unlikely 
that the proposed amendments will affect Federally listed critical 
habitat or species (Administrative Record Number VA-893).
    The U.S. Department of Agriculture, Natural Resources Conservation 
Service (NRCS) responded (Administrative Record Number VA-892) and 
commented on the proposed 28-degree angle of draw. NRCS stated that 
while tests and analyses conducted by and for the NRCS in the 
Appalachian coal fields have shown a 25-degree angle of draw from the 
edge of extraction, NRCS has usually assumed a 30-degree angle of draw 
for land rights and safety reasons. NRCS said that the 30-degree 
figure, while somewhat conservative, is widely accepted in the 
academic, technical and engineering communities. In response, the 
Director notes that in Finding 5, above, Virginia has submitted 
technical justification for using a 28-degree angle of draw. That is, 
the Virginia technical information shows that the 28-degree angle of 
draw has a more reasonable basis for Virginia. As noted in the finding, 
Virginia's justification does not guarantee (nor does the Federal 
standard of 30-degree angle of draw guarantee) that all subsidence 
damage will necessarily take place within the specified angle of draw. 
Rather, it is expected that the great majority of subsidence damage 
would occur within the specified angle of draw. It is possible that 
earth movement could occur that causes damage to protected structures 
that are outside the 28-degree angle of draw standard. In those cases, 
Virginia will not have the benefit of the presumption of causation. 
Virginia must, nevertheless, investigate such occurrences to obtain the 
evidence necessary to determine whether or not such damage is caused by 
the permittee.

Public Comments

    The following comments were received in response to the announced 
public comment periods. A public hearing was held on September 18, 
1997, and the comments below also reflect those offered at the hearing.
    One commenter recommended various typographical corrections be made 
to the amendment. In response, the Director notes that Virginia has 
corrected all but one of the typographical errors that were identified 
by the commenter. The remaining error at Sec. 480-03-19.784.20(b)(7), 
is clearly a typographical error and does not affect the meaning of 
784.20(b). Therefore, as stated in the Director's finding 5, the 
Director finds it to be no less effective than the Federal regulation.
    Several commenters stated that the proposed 28-degree angle of draw 
should not be approved. Some of these commenters expressed disbelief 
that any specific angle of draw could adequately protect the coalfield 
residents from damage from subsidence. One commeter said that he can't 
see how anyone can draw a line on a map and say on one

[[Page 48763]]

side of this line damage is caused by mining, but on the other side of 
the line damage can not be mining related. It is especially impossible, 
the commenter stated, to use a single measurement for any entire region 
or state. Another commenter stated that the current use and practical 
application of the angle of draw theory is totally without merit and is 
contrary to the way our earth is made or reacts to stress. If a 
specific angle of draw must be chosen, commenters recommended a 30-
degree or 35-degree angle of draw. The commenter stated that the 
decision to use either the 28-degrees or 30-degrees angle of draw 
should consider the obvious, on-the-ground damages above high-
extraction mines. Another commenter said that he was told by company 
officials that his residence is just outside the angle of draw and that 
he would have to prove that the damage was subsidence related.
    To the extent that the comments question the concept of any angle 
of draw, these comments are not within the scope of this rulemaking 
because they question the federal rule which was approved by OSM in 
1995. For a further discussion of the purpose of the angle of draw 
please see the federal rule at 60 FR at 16737-16738.
    The Director notes that, as discussed above in Finding 5, the 
Federal regulations at 30 CFR 817.121(c)(4)(I), while specifying a 30-
degree angle of draw, also authorize the States to amend their programs 
to apply the presumption to a different angle of draw. To receive 
approval of a different angle of draw, the regulatory authority must 
show in writing that the proposed angle has a more reasonable basis 
than the 30-degree angle of draw. Virginia has provided the required 
technical justification, and OSM, after reviewing the information 
supplied by Virginia, concluded (see Finding 5.b.) that Virginia has 
met the requirements of 30 CFR 817.121(c)(4)(I).
    In addition, it should be understood that neither the State's 28-
degree angle of draw, nor the Federal 30-degree angle of draw are 
intended to encompass 100 percent of the possible cases where damage to 
surface structures may be caused by underground mining. Rather, OSM 
designed the rule to apply an angle of draw within which it would be 
reasonable to presume that such damage is caused by the underground 
mining operations. The presumption, however, does not change the 
ultimate burden of proof in a damage determination.
    The ultimate burden of persuasion that a permittee is responsible 
for damage to a structure still lies with the regulatory authority or 
OSM. ``The presumption * * * [is] established only after it is 
determined that damage caused by earth movement did in fact occur 
within the specified angle of draw.'' [60 FR at 16737] The burden of 
rebutting the presumption will be on the permittee. The ``[p]ermittee 
may provide information * * * either before an enforcement action is 
taken, when the regulatory authority or OSM is determining whether a 
violation exists * * * or after enforcement action occurs.'' [60 FR 
17637]
    If damage occurs to a protected surface structure that is outside 
the specified angle of draw, the presumption does not exist. That is, 
it cannot be presumed that the permittee caused the damage. Instead, 
the regulatory authority must gather and evaluate evidence that the 
damage is caused by the permittee. The permittee, of course, may submit 
evidence in an attempt to refute the evidence submitted by the 
regulatory authority. The Director notes that neither the use of the 
30-degree angle of draw or the use of an alternative, approved angle of 
draw (such as 28 degrees) is intended to diminish the protection 
afforded to non-commercial buildings, and occupied residential 
dwellings and structures related thereto, under 30 CFR 817.121.
    One commenter stated that landowners have no chance to prove 
anything when they can't get cooperation from coal company officials in 
even looking at maps to determine when and where mining under and 
around their property occurred. In response, the Director notes that it 
is the responsibility of the State to investigate subsidence damage 
complaints. Mine maps are available in the permit files that should 
provide enough information for the State to determine if mining is 
being conducted under a specific property. These maps are available for 
public inspection under Sec. 480-03-19.773.13(a)(2). The permittees are 
required under Sec. 480-03-19.817.122 to provide six-months advance 
notice to property owners of proposed mining under their property.
    One commenter stated that the mining maps are not reliable enough 
to use the angle of draw on the inside part of a mining operation. The 
commenter pointed to the difficulty of rescuing trapped miners by using 
mine maps to locate their position and drill rescue shafts to reach 
them. How can you, the commenter asked, use an angle of draw determined 
from mine maps to consider damage to people's houses, when mining 
companies can't even hit a simple opening to rescue trapped miners? 
Because of this inaccuracy, the angle of draw should be done away with. 
The Director notes that this comment questions the concept of any angle 
of draw and, therefore, is not within the scope of this rulemaking 
because it questions the federal rule which was approved by OSM in 
1995.
    A commenter provided the following comments on Virginia's January 
3, 1997, technical justification of the proposed 28-degree angle of 
draw. The commenter objected to the use of statistics, estimates, 
averages, and computer modeling for ``angle of draw calculations.'' In 
response, the Director notes that while some of these types of 
mathematical procedures were used in support of the reduction from 30 
to 28 degrees, the basis for the models and estimates were actual, on-
the-ground measurements of the extent of subsidence impacts from 
underground mining. These measurements were obtained in Virginia by 
scientifically-documented studies of Virginia Polytechnic Institute & 
State University (VPI), and the mining companies.
    A commenter contended that the geologic data upon which the angle 
of draw is based, is unsubstantiated by adequate geological information 
on rock types and strength. In response, the Director notes as part of 
Virginia's justification of the use of a 28-degree angle of draw, the 
State included the results of subsidence models generated by the 
computer software Surface Deformation Prediction System (SDPS). This 
computer software, which was developed by VPI in cooperation with OSM, 
has been validated from actual mine subsidence data in Virginia. The 
software allows the prediction of the angle of draw, predicated on the 
amount of ``hardrock'' in the overburden above an underground mine. 
Overburden and other data from two Virginia mines were applied to SDPS. 
Hardrock for these two models consisted of 69.5 and 76.7 percent based 
on actual core samples, and the angle of draw predicted by SDPS equated 
to 15.1 and 13.8 degrees. The stratigraphy in southwestern Virginia is 
noted for massive sandstones and other types of hardrock above the 
coal. The hardrock is estimated to average 50 percent of coal 
overburden. When a 50 percent hardrock figure is applied to SDPS, the 
angle of draw equates to 23 degrees. Using a conservative figure of 30 
percent hardrock (atypically low for southwestern Virginia), SDPS 
predicts the angle of draw of 28 degrees. Thus, under the typical 
conditions of southwestern Virginia, OSM believes a 28-degree angle of 
draw for the purposes of defining the limits of rebuttable presumption 
is reasonable, and renders the regulations proposed by Virginia no

[[Page 48764]]

less effective than the counterpart provision at 30 CFR 
817.121(c)(4)(I).
    A commenter was concerned that the studies preferred to in support 
of the 28-degree angle of draw were conducted on the initial mining 
panels or pillar extraction when only a minimal amount of ground 
disruption would occur. The commenter argued that, in reality, as 
mining progresses, damages become more substantial because more of the 
overburden's strength is weakened causing even greater area of impact. 
In response, the Director disagrees with the commenter for two reasons. 
First, there is no scientific support for the commenter's hypothesis 
that the angle of draw increases as multiple longwall panels are mined 
or when full extraction room-and-pillar mining extends beyond what has 
been shown to be a critical width. Secondly, the State cited numerous 
studies by several different authors in its justification of the use of 
a 28-degree angle of draw. There is no support for the commenter's 
allegation that all or any of these studies were conducted only during 
the initial mining of panels or pillars. Several of the supporting 
documents show that the studies were conducted using multipanel 
longwall mines or areas of extensive room-and-pillar mining.
    Several commenters referred to the McClure #1 mine in Virginia and 
said that subsidence damage was not confined to a 28 degree angle of 
draw. One commenter added that the proportion of sandstone in the 
overburden above the McClure #1 mine is less than expected by the 
modeling. In response, the Director notes that Virginia's submittal to 
support their request for a 28-degree angle of draw specifically cites 
information that concerns the McClure #1 mine (Administrative Record 
Number VA 902). In that reference, the Clinchfield Coal Company (permit 
1400411, revision 9402858) completed a study in 1989 of actual 
subsidence (not modeling data) over the McClure # mine in the Jawbone 
seam. Clinchfield's survey data measured a draw angle of 15 degrees. In 
its permit, however, Clinchfield requested a more conservative 24 
degree angle of draw for the longwall mining. Both of these angles are 
well within the 28-degree angle of draw requested by Virginia. That is, 
the subsidence trough at the McClure #1 mine (subsidence trough is the 
zone of vertical displacement as measured by a vertical line at the 
edge of the underground workings and the point where the vertical 
displacement diminishes to zero) was measured to be well within the 
proposed 28-degree angle of draw. Therefore, the Director continues to 
believe that the proposed 28-degree angle of draw is reasonable.
    As for allegations of damage outside of a 28-degree angle of draw, 
such allegations do not automatically discredit the reasonableness of 
the proposed angle of draw. As explained in Finding 5 above, the angle 
of draw (whether it be the Federal 30-degrees or the proposed 28 
degrees) is not intended to encompass 100 percent of all subsidence 
damage. Rather, the angle of draw is intended to encompass an area 
within which it is reasonable to presume that subsidence damage is 
caused by the underground mining operations. Based on the actual 
measurements of vertical displacement above the McClure 11 mine as 
cited in the Clinchfield Coal Company study (15 degrees), it is 
reasonable to believe that most subsidence damage would be confined 
within the proposed angle of draw. Therefore, the Director continues to 
believe that the use of a 28-degree angle of draw is reasonable and no 
less effective than the Federal 30-degree angle of draw.
    Several commenters expressed concern over how and where the line 
that represents the angle of draw is determined and drawn. One 
commenter stated that the angle should be computed from the outermost 
boundary of any underground mine workings. The commenter stressed the 
use of the word ``any'' as it refers to underground mine workings. The 
commenter acknowledged that the ``any'' requirement is in the Virginia 
regulations at Sec. 480-03-19.817.121(c)(4), but explained that the 
angle should be computed to include the entire mine, the adjacent area, 
the affected area, the cumulative impact area, and the disturbed area. 
One commenter requested that OSM clarify where the angle of draw is 
measured from. Another commenter insists the measure of the angle of 
draw be outward from the perimeter of the underground mine, and 
suggests that Virginia's intent is to only measure outward from high-
extraction mining areas. These comments pertain to Virginia's 
regulation at 480-03-19.817.121(c)(4)(I), which is discussed in the 
Director's Finding 5.a. As previously stated, the definition of ``angle 
of draw'' is defined as ``the angle of inclination between the vertical 
at the edge of the underground mine workings and the point of zero 
vertical displacement at the endge of the subsidence trough.'' 60 FR 
16722, 16738 (March 31, 1995). The Director agrees with the commenter 
that Virginia's interpretation is to only measure the angle of draw 
from the high extraction mining areas which is inconsistent with the 
plain language of 30 CFR 817.121(c)(4)(I). Accordingly, Virginia's 
regulation is not approved to the extent it will be applied in a manner 
inconsistent with the plain language of the federal rule.

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 July 22, 1996 
(Administrative Record No. VA-895) and stated that the amendment is in 
compliance with the Clean Water Act and offered no additional comments.

V. Director's Decision

    Based on the findings above, and except as noted below, the 
Director is approving Virignia's amendment concerning subsidence damage 
as submitted by Virginia on May 21, 1996, and clarified by letter dated 
January 3, 1997, and revised by a letter dated March 20, 1997, to 
correct minor punctuation and typographical errors. The Director is not 
approving Sec. 480-03-19.817.121(c)(4)(I) to (ii) to the extent it will 
be applied in a manner inconsistent with 30 CFR 817.121(c)(4). The 
Director is approving Sec. 480-03-19.817.121(a)(2)(iii) to the extent 
it applies to longwall mining.
    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

[[Page 48765]]

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 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 12988

    The Department of the Interior has conducted the reviews required 
by section 3 of Executive Order 12988 (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: August 29, 1997.
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. Section 946.15 is amended in the table by adding a new entry in 
chronological order by ``Date of Final Publication'' to read as 
follows:


Sec. 946.15  Approval of Virginia regulatory program amendments.

* * * * *

------------------------------------------------------------------------
  Original amendment submission      Date of final         Citation/    
              date                    publication         description   
------------------------------------------------------------------------
                                                                        
                  *        *        *        *        *                 
May 21, 1996....................  September 17, 1997  VA Code Secs.  480-
                                                       03-19.700.5;     
                                                       784.14, .20;     
                                                       817.41, .121.    
------------------------------------------------------------------------

[FR Doc. 97-24682 Filed 9-16-97; 8:45 am]
BILLING CODE 4310-05-M