[Federal Register Volume 63, Number 24 (Thursday, February 5, 1998)]
[Rules and Regulations]
[Pages 5888-5891]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-2779]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 946

[VA-111-FOR]


Virginia Abandoned Mine Land Reclamation Plan

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

ACTION: Final rule; approval of amendment.

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SUMMARY: OSM is announcing the approval of a proposed amendment to the 
Virginia Abandoned Mine Land Reclamation (AMLR) Program (hereinafter 
referred to as the Virginia Program) under the Surface Mining Control 
and Reclamation Act of 1977 (SMCRA), 30 U.S.C. 1201 et seq., as 
amended. The proposed amendment makes changes to the Ranking and 
Selection section and to the AML Water Project Evaluation form. The 
amendment is intended to revise the Virginia program to be consistent 
with SMCRA, and to improve the efficiency of the Virginia program.

EFFECTIVE DATE: February 5, 1998.

FOR FURTHER INFORMATION CONTACT: Mr. Robert A. Penn, Director, Big 
Stone Gap

[[Page 5889]]

Field Office, Telephone: (540) 523-4303.

SUPPLEMENTARY INFORMATION:

I. Background on the Virginia Plan
II. Submission of the Proposed Amendment
III. Director's Findings
IV. Summary and Disposition of Comments
V. Director's Decision
VI. Procedural Determinations

I. Background on the Virginia Plan

    On December 15, 1981, the Secretary of the Interior conditionally 
approved the Virginia program. Background 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 AMLR program amendments are identified at 30 
CFR 946.20 and 946.25.

II. Submission of the Proposed Amendment

    By letter dated September 19, 1997 (Administrative Record Number 
VA-926), the Division of Mined Land Reclamation (DMLR) of the 
Department of Mines, Minerals and Energy (DMME) of the Commonwealth of 
Virginia submitted changes to the approved Virginia plan. The amendment 
makes changes to the Ranking and Selection section of the Virginia 
plan, concerning Acid Mine Drainage Abatement--Treatment. The amendment 
also changes the AML Water Project Evaluation form.
    OSM announced receipt of the proposed amendment in the October 14, 
1997, Federal Register (62 FR 53275), and in the same document opened 
the public comment period and provided an opportunity for a public 
hearing on the adequacy of the proposed amendment. The public comment 
period closed on November 13, 1997. No public hearing was requested, so 
none was held.

III. Director's Findings

    As discussed below, the Director, in accordance with SMCRA and 30 
CFR 884.14 and 884.15, finds that the proposed plan amendments 
submitted by Virginia on September 19, 1997, meet the requirements of 
the corresponding Federal regulations and is consistent with SMCRA.

Ranking and Selection 884.13(c)(2)

    In this section, Virginia changed the heading of the paragraph 
titled ``Acid Mine Drainage Abatement--Treatment'' to read ``Set Aside 
Funds,'' revised the language of that subsection to include the 
provisions of Part A of section 402(g)(6) of SMCRA.
    The revised language is as follows:

Set Aside Funds

    In accordance with Section 402(g)(6) of SMCRA, Virginia may, 
without regard to the 3 year limitation referred to in Section 
402(g)(1)(D) of SMCRA, receive and retain up to 10 percent of the 
total grants made annually under Section 402(g)(1) and (5) of SMCRA 
by the Secretary for deposit into either:
    A. A special trust fund established under State law pursuant to 
which such amounts (together with all interest earned on such 
amounts) are expended by Virginia solely to achieve the priorities 
stated in section 403(a) of SMCRA after September 30, 1995, or
    B. An acid mine drainage abatement and treatment fund 
established under State law as provided for under 30 CFR Part 876. 
An interest bearing acid mine drainage abatement and treatment fund 
will be utilized by Virginia, in consultation with the Natural 
Resources Conservation Service, to implement acid mine drainage 
abatement--treatment plans approved by the Secretary of the 
Interior.

    The remainder of the previously-existing section (formerly entitled 
``Acid Mine Drainage Abatement--Treatment'' remains unchanged, and is 
quoted below.

    These plans shall provide for the comprehensive abatement of the 
causes and treatment of the effects of acid mine drainage within 
qualified hydrologic units affected by coal mining practices. The 
plan shall include, but shall not be limited to, each of the 
following:
    (a) An identification of the qualified hydrologic unit.
    (b) The extent to which acid mine drainage is affecting the 
water quality and biological resources within the hydrologic unit.
    (c) An identification of the sources of acid mine drainage 
within the hydrologic unit.
    (d) An identification of individual projects and the measures 
proposed to be undertaken to abate and treat the causes or effects 
of acid mine drainage within the hydrologic unit.
    (e) The cost of undertaking the proposed abatement and treatment 
measures.
    (f) An identification of existing and proposed sources of 
funding for such measures.
    (g) An analysis of the cost-effectiveness and environmental 
benefits of abatement and treatment measures.
    Under this program, the term ``qualified hydrologic unit'' means 
a hydrologic unit.
    (a) in which the water quality has been significantly affected 
by acid mine drainage from coal mining practices in a manner which 
adversely impacts biological resources; and
    (b) which contains lands and water that are:
    1. eligible pursuant to Section 404 and include any of the 
priorities stated in SMCRA paragraph (1), (2), or (3) of Section 
403(a); and
    2. proposed to be the subject of the expenditures by the State 
from amounts available from the forfeiture of bonds required under 
Section 509 or from other State sources to mitigate acid mine 
drainage.

    The Director finds that the provisions of this amendment are either 
substantively identical to or no less stringent than Sec. 402 (g)(6) 
and (g)(7) of SMCRA and meet the requirements of the Federal 
regulations at 30 CFR 844.13(c)(2) and can be approved.

AML Water Project Evaluation Form

    The AML Water Project Evaluation form is currently part of the 
approved Virginia program. Virginia changed four sections of the form, 
and provided the following rationale for the changes.

Appropriate Project Costs (Cost per Connection)

    That this section was revised to more realistically reflect the 
cost/hook-ups being experienced. Most cost/hook-ups now reflect a 
10,000-20,000 range. This is because of the high cost for 
construction due to the distance between households, and the 
mountainous terrain.

Affordability

    ``Costs for 4,200 gal. of treated water'' was changed to read 
``Costs for 3,500 gal. of treated water'' to show the average use 
and to match usage rates used by other funding agencies as reflected 
in the review manual application.

Level of Commitment of Non-AML Funds

    The points award were modified to encourage local funding and 
leverage AML funding to the maximum extent possible.

AML Bonus Award

    The new review category is meant to promote and encourage awards 
to proposed projects which incorporate regionalization and 
consolidated management. Regionalization of water systems reduces 
costs and promotes efficiency in providing water to the greatest 
number of households. Points awarded for this will be between 1-5, 
and a total perfect score will now be 105. The average score on 
projects is 60-80.

    The Director finds that the explanation provided by Virginia for 
the revision to the form appears reasonable and justified. Further, the 
rationale also appears to reflect Virginia's intent to further direct 
Virginia's efforts toward achieving AML reclamation and hazard 
abatement consistent with the reclamation priorities system contained 
within Sec. 403(a) and Sec. 411 of SMCRA. Therefore, the Director finds 
that the proposed amendments are not inconsistent with the Federal 
regulations at 30 CFR 884.13(c)(2) concerning ranking and selection and 
can be approved.
    In addition to the above changes to the form, Virginia requested 
that the AML Water Project Evaluation form--figure 2 be removed from 
the AML State Reclamation Plan and placed into the Administrative 
Record. However, the form will still be referenced in the

[[Page 5890]]

Virginia plan. Virginia explained that the dynamic nature of this form 
may require that the form be further amended in the future. Therefore, 
removal of the form from the Virginia plan and placing the form 
separately into the Administrative Record will allow the form to be 
quickly amended as needed. The Director is complying with the State's 
request but notes, however, that since the form is part of Virginia's 
approved process for ranking and selecting water projects under 30 CFR 
884.13(c)(2) and Part 874, any future substantive changes made to the 
form must be submitted to OSM for approval as part of a proposed 
program amendment. Therefore, the Director is placing the AML Water 
Project Evaluation form into the administrative record at 
Administrative Record Number VA-927 with the understanding that any 
future substantive changes made to the form must be submitted to OSM 
for approval as part of a proposed program amendment.

IV. Summary and Disposition of Comments

Public Comments

    The Director solicited public comments and provided an opportunity 
for a public hearing on the proposed amendment. No public comments were 
received in response to the public comment period that ended on 
November 13, 1997. Because no one requested an opportunity to speak at 
a public hearing, no hearing was held.

Federal Agency Comments

    Pursuant to 884.14(a)(2) and 884.15(a), OSM solicited comments on 
the proposed amendment from various other Federal agencies with an 
actual or potential interest in the Virginia plan (Administrative 
Record number VA-928). Responses were received from the U.S. Fish and 
Wildlife Service (USFWS), U.S. Department of Agriculture, Natural 
Resources Conservation Service (NRCS), and the U.S. Department of 
Labor, Mine Safety and Health Administration (MSHA).
    MSHA responded that the proposed measures appear to be adequate to 
serve the intended purpose. NRCS stated that the amendments be accepted 
with one comment noted. NRCS said that part VI--Bonus Awards of the AML 
Water Project Evaluation form lists no ranking criteria and thus 
appears to be subjective. In response, the Director notes that Virginia 
has clearly identified the focus of the 5-point bonus award and does 
have criteria for the bonus award. In its submittal of this amendment, 
Virginia explained that the bonus award will be awarded to projects 
which incorporate regionalization and consolidated management. The DMLR 
noted that such regionalization of water systems reduces costs and 
promotes efficiency in providing water to the greatest number of 
households. In addition, by letter dated December 5, 1997 
(Administrative Record Number VA-940), the DMLR responded to the NRCS 
comment. The DMLR stated that regional project criteria may include 
interconnection with other authorities, consolidation of management, 
operation, maintenance or distribution systems among smaller system 
authorities or guidance of significant local funding from more than one 
service provider in a regional project. DMLR further stated that 
projects with a regional scope will be awarded a greater number of 
points if executed contracts are finalized versus projects where there 
has been merely a discussion of a regional project, but no specific 
activities have been completed which demonstrate progress toward 
regionalization. As noted above in the findings, the Director has 
determined that the proposed provision is not inconsistent with the 
Federal regulations at 30 CFR 884.13(c)(2) concerning ranking and 
selection and can be approved.
    USFWS responded (Administrative Record Number VA-937) and 
recommended that subparagraph (b) of the section newly titled ``Set 
Aside Funds'' be revised by adding the words ``A physical, chemical, 
and biological assessment of '' to the beginning of the subparagraph. 
USFWS explained that the change would clarify how the extent of the 
acid mine drainage effects to water quality and biological resources 
should be assessed. In response, the Director notes that the provision 
commented on by USFWS is not being amended by Virginia and, therefore, 
is beyond the scope of this amendment. In addition, the provision 
commented on by the USFWS is identical to its counterpart in SMCRA at 
Sec. 402(g)(7)(B)(ii).

Environmental Protection Agency (EPA)

    Pursuant to 30 CFR 732.17(h)(11)(ii), the Director is required to 
obtain the written concurrence of the Administrator of EPA with respect 
to those provisions of the proposed plan amendment that relate to air 
or water quality standards promulgated under the authority of the Clean 
Air Act (42 U.S.C. 7401 et seq.) or the Clean Water Act (33 U.S.C. 1252 
et seq.). The Director has determined that the proposed amendments 
contain 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 amendments from the EPA. No comments were received from the 
EPA.

State Historical Preservation Officer (SHPO) and the Advisory Council 
on Historic Preservation (ACHP)

    Pursuant to 30 CFR 732.17(h)(4), OSM solicited comments on the 
proposed amendment from the SHPO and ACHP. No comments were received.

V. Director's Decision

    Based on the above findings, the Director is approving the proposed 
AMLR plan amendment as submitted by Virginia on September 19, 1997.
    The Federal regulations at 30 CFR 946.25, codifying decisions 
concerning the Virginia plan amendments, are being amended to implement 
this decision. This final rule is being made effective immediately to 
expedite the State plan amendment process and to encourage States to 
bring their plans into conformity with the Federal standards without 
undue delay. Consistency of State and Federal standards is required by 
SMCRA.

VI. Procedural Determinations

Executive Order 12866

    This proposed 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 and Tribal abandoned mine land reclamation plans and revisions 
thereof since each such plan is drafted and promulgated by a specific 
State or Tribal, not by OSM. Decisions on proposed abandoned mine land 
reclamation plans and revisions thereof submitted by a State or Tribe 
are based on a determination of whether the submittal meets the 
requirements of Title IV of SMCRA (30 U.S.C. 1231-1243) and 30 CFR 
Parts 884 and 888.

National Environmental Policy Act

    No environmental impact statement is required for this rule since 
agency decisions on proposed State and Tribal abandoned mine land 
reclamation plans

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and revisions thereof are categorically excluded from compliance with 
the National Environmental Policy Act (42 U.S.C. 4332) by the Manual of 
the Department of the Interior (516 DM 6, appendix 8, paragraph 
8.4B(29)).

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 
corresponding Federal regulations for which an economic analysis was 
prepared and certification made that such regulations would 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 in the analyses for the corresponding 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 964

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: January 16, 1998.
Ronald C. Recker,
Acting 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 946.25 is amended in the table for paragraph (a) by 
adding a new entry in chronological order by ``Date of Final 
Publication'' to read as follows:


Sec. 946.25  Approval of Virginia abandoned mine land reclamation plan 
amendments.

    (a) * * *

------------------------------------------------------------------------
Original amendment  submission    Date of final                         
             date                  publication      Citation/description
------------------------------------------------------------------------
                                                                        
*                  *                  *                  *              
September 19, 1997............  [Insert date of    Revisions to the     
                                 publication in     Virginia State      
                                 the Federal        Reclamation Plan    
                                 Register].         corresponding to 30 
                                                    CFR 884.13(c)(2)--  
                                                    Ranking and         
                                                    Selection: Set Aside
                                                    Funds; and the AML  
                                                    Water Project       
                                                    Evaluation form.    
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[FR Doc. 98-2779 Filed 2-4-98; 8:45 am]
BILLING CODE 4310-05-M