[Federal Register Volume 65, Number 25 (Monday, February 7, 2000)]
[Rules and Regulations]
[Pages 5781-5784]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-2641]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 946

[VA-114-FOR]


Virginia Regulatory Program

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

ACTION:  Final rule; approval of amendment.

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

SUMMARY:  OSM is approving an amendment to the Virginia permanent

[[Page 5782]]

regulatory program (hereinafter referred to as the Virginia program) 
under the Surface Mining Control and Reclamation Act of 1977 (SMCRA). 
The amendment clarifies the State's interpretation of its regulations 
concerning the disposal of excess spoil. The amendment is intended to 
improve the operational efficiency of the Virginia program.

EFFECTIVE DATE:  January 7, 2000.

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. You can find background information on 
the Virginia program, including the Secretary's findings, the 
disposition of comments, and the conditions of approval in the December 
15, 1981, Federal Register (46 FR 61085-61115). You can find later 
actions on conditions of approval and program amendments at 30 CFR 
946.11, 946.12, 946.13, 946.15, and 946.16.

II. Submission of the Amendment.

    By letter dated November 24, 1998 (Administrative Record No. VA-
961), the Virginia Department of Mines, Minerals and Energy, Division 
of Mined Land Reclamation (DMLR) submitted a clarification to its 
interpretation of its regulations at 4 VAC 25-130-816/817.76 concerning 
the disposal of excess spoil.
    We announced receipt of the proposed amendment in the December 23, 
1998, Federal Register (63 FR 71049), invited public comment, and 
provided an opportunity for a public hearing on the adequacy of the 
proposed amendment. The comment period closed on January 22, 1999. No 
one requested to speak at a public hearing, so no hearing was held. By 
letters dated December 6, 1999, and January 11, 2000 (Administrative 
Record No. VA-995 and VA-998, respectively), the DMLR submitted 
additional information concerning the amendment, and withdrew the 
proposal to dispose of excess spoil on bond forfeiture sites.

III. Director's Findings

    Following, according to SMCRA and the Federal regulations at 30 CFR 
732.15 and 732.17, are our findings concerning the proposed amendment.
    The proposed clarification is as follows:
    The Division of Mined Land Reclamation proposes to clarify the 
interpretation of 4 VAC 25-130-816.76. The regulation states that 
excess spoil may be placed on ``another area under a permit issued 
pursuant to the Act, or on abandoned mine lands under contract for 
reclamation according to the Abandoned Mine Land (AML) Guidelines and 
approved by the Division of Mined Land Reclamation.'' The Virginia 
Division of Mined Land Reclamation interprets this regulation to mean 
excess spoil from a permitted coal mining operation may be used by the 
Division of Mined Land Reclamation to reclaim a bond forfeiture site or 
an AML project site. Through any of the contracting procedures 
available to the agency, including negotiated, no-cost, or 
competitively bid contracts, the agency may cause the placement of 
excess spoil on the forfeiture or AML site in accordance with the 
provisions of a contract executed between the Division and a 
contractor. The spoil material removed from the permitted area will be 
demonstrated to be excess spoil and unnecessary for the achievement of 
approximate original contour within the permitted area.
    The forfeiture or AML project must be:
    1. Located in general proximity to the permit area;
    2. on the AML inventory list or bond forfeiture list; and
    3. referenced in the permit plans, along with the demonstration 
that the spoil is excess and identified on the permit map. However, the 
forfeiture or AML site will not be included in the permit acreage; will 
not be subject to the requirements for permits, performance bonds; and 
will not delay or otherwise affect bond release on the permitted area.
    In the event the contractor fails to perform the work specified in 
the ``no-cost contract'', the Division will invoke the appropriate 
contact sanctions to cause completion of the contract terms. When the 
contractor and the mine operator happen to be one and the same, the 
contract will include an additional default provision. In this case, 
the contract will specify that the mine operator will revise the permit 
boundary to include the area upon which the excess spoil was placed 
pursuant to the ``no-cost contract.'' The permit performance bond 
requirements will become applicable.
    In response to our comments on the proposal (Administrative Record 
Numbers VA-983, 984, and 985), DMLR submitted a letter on December 6, 
1999, stating the following:
    1. Virginia is proposing to follow the information contained in the 
letters of November 24, 1997, and November 24, 1998, as well as the AML 
Guidelines. The November 24, 1997, letter was a previous request by 
Virginia for OSM to approve an interpretation of 4 VAC 25-13-816.76 
that would allow the placement of excess spoil on eligible AML sites 
pursuant to ``no-cost'' contracts. In that letter, Virginia committed 
to apply the following guidelines for such contracts:

--Conditions for placement of spoil are to be outlined in a written 
agreement between the operator and the regulatory authority;
--Only spoil not necessary to restore AOC or reclaim the permitted area 
can be placed on abandoned mine lands;
--The spoil is to be disposed of in a technically and environmentally 
sound fashion;
--The spoil is placed where it will not destroy or degrade features of 
environmental value;
--Areas for excess spoil disposal must be eligible as noted in the 
state reclamation plan;
--The mining company will not be required to permit the disposal area;
--No coal can be removed from the disposal area; and,
--The abandoned mine land features reclaimed will be moved to the 
completed column of AMLIS and noted as Private Reclamation;

    2. For financial assurance, the DMLR would require the operator to 
post an AML bond on the site;
    3. The DMLR withdraws its proposal to dispose of excess spoil on 
bond forfeiture sites; and
    4. The DMLR stated that it will not allow fills to be constructed 
on abandoned mine land.
    We disapproved a similar Virginia proposal to allow the placement 
of excess spoil on unpermitted abandoned sites through ``no-cost'' 
contracts in 1990. That proposal was disapproved for three reasons. 
First, Virginia failed to designate a fund that could be used in the 
event that the contractor defaults on his reclamation obligations. 
Second, the proposal did not contain a reference to the Federal AML 
policy guidelines. Finally, the proposal did not provide for ``public 
notice or participation such as would occur on an AML contract or

[[Page 5783]]

mining permit.'' (55 FR 2240, 2243-4, January 23, 1990).
    We have also addressed the placement of excess spoil on adjacent 
abandoned mine land previously in program amendment decisions in other 
states. Most recently, we approved a Pennsylvania amendment regarding 
the placement of excess spoil on abandoned mine sites (March 26, 1999; 
64 FR 14610). In that approval, we explained that in order to obtain 
our approval of ``no cost reclamation,'' such reclamation would have to 
contain meaningful performance incentives or safeguards to ensure that 
spoil is placed only where it is needed to restore the approximate 
original contour (AOC) and where it will not destroy or degrade 
features of environmental value. In addition, the amendments must 
require that spoil be placed in an environmentally and technically 
sound fashion. In short, ``no cost reclamation'' amendments must 
provide a degree of security comparable to that afforded by a Federally 
funded AML reclamation contract. 64 FR at 14617.
    The approved Virginia program at 4 VAC 25-130-816/817.76(a) 
provides that the DMLR may approve, where environmental benefits will 
occur, the placement of spoil not needed to restore the approximate 
original contour of the land and reclaim land within the permit area in 
a manner consistent with the Virginia Coal Surface Mining Control and 
Reclamation Laws and the Virginia Coal Surface Mining Reclamation 
Regulations on abandoned mine lands under a contract for reclamation 
according to the AML Guidelines and approved by the Division. In the 
amendment, Virginia would authorize the placement of excess spoil, via 
a no-cost contract, on AML sites. ``No-cost'' contracts are so called 
because the contractor receives no moneys from the state AML agency in 
exchange for performance of the terms of the contract. Rather, the 
contractor receives the benefit of a free disposal area for its excess 
spoil in consideration for performance of the needed reclamation. To be 
approvable, the policies and procedures applicable to such no-cost 
contracts must provide a degree of security comparable to contracts 
under Federally-funded AML projects.
    In Virginia's amendment, AML lands will be reclaimed in accordance 
with 4 VAC 25-130-816/817.76(a)(2). That is, all reclamation must be in 
accordance with the AML Guidelines, regardless of whether the contracts 
are ``no-cost,'' or Federally funded AML contracts. The DMLR confirmed 
in its December 6, 1999, letter that the disposal of excess spoil as 
incidental reclamation will be in accordance with the AML Guidelines, 
will require an AML bond to be posted, and that excess spoil fills will 
not be constructed on the AML sites.
    We find, therefore, that Virginia's amendment regarding the use of 
``no-cost contracts'' under the approved provisions at 4 VAC 25-130-
816/817.76 concerning the disposal of excess spoil and incidental 
reclamation will afford the same degree of performance incentives and 
safeguards as Federally funded AML construction projects. We are 
approving the amendment for the reasons set below.
    First, the requirements of 4 VAC 25-130-816/817.76 provide that the 
placement of the excess spoil under a contract for reclamation must be 
in accordance with the AML guidelines. These guidelines were published 
in the Federal Register at 61 FR 68777, December 30, 1996.
    Second, the amount of excess spoil placed on an abandoned site will 
only be that needed to reclaim the bond forfeiture or AML site. 
Therefore, valley, head-of-hollow and durable rock fills will not be 
constructed on these AML sites, because the amount of material 
deposited would exceed that necessary to address the reclamation of the 
forfeited site or AML impacts and problems.
    Third, the use of the ``no-cost contracts'' contains sufficient 
performance incentives to require compliance with all applicable 
requirements to ensure that the sites are fully reclaimed. In its 
December 6, 1999, letter, the DMLR stated that it will require the 
operator conducting a no-cost contract to post an AML bond on the site. 
In addition, in its January 11, 2000, letter, the DMLR stated that 
Virginia's AML grant funds would also be a source available to reclaim 
a site in the event of operator default or, after the project is 
released, to correct any failure of the project reclamation.

IV. Summary and Disposition of Comments

Federal Agency Comments

    According to 30 CFR 732.17(h)(11)(i), we solicited comments on the 
proposed amendment from various Federal agencies with an actual or 
potential interest in the Virginia program. The U.S. Department of 
Labor, Mine Safety and Health Administration (MSHA) responded and 
stated that there appears to be no conflict with MSHA regulations and/
or procedures. The U.S. Department of Agriculture, Natural Resources 
Conservation Service responded and stated that its position is that the 
amendment be accepted. The U.S. Fish and Wildlife Service (USFWS) 
responded and stated that it appears that no impacts to Federally 
listed or proposed species or critical habitat will occur and, 
therefore, it has no comments on the proposed amendments. The U.S. 
Forest Service responded that it concurs with the amendment, as long as 
the AML sites will not lose soil or water quality as a result of this 
additional spoil material. In response, we note that the DMLR has 
confirmed in its December 6, 1999, letter that the disposal of excess 
spoil as incidental reclamation will be in accordance with the AML 
Guidelines. By following these guidelines, soil and water quality will 
be protected at least to the extent that they are under Federally-
funded AML projects.

Environmental Protection Agency (EPA)

    Pursuant to 30 CFR 732.17(h)(11)(ii), OSM is required to obtain the 
written concurrence of the EPA with respect to any provisions of the 
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.).
    None of the clarifications Virginia proposed pertain to air or 
water quality standards. Nevertheless, we requested EPA's comments on 
the proposed amendment. EPA did not provide any comments.

Public Comments

    We solicited public comments on the amendment. The Virginia 
Department of Historic Resources responded that the amendment will not 
affect historic properties, and that it has no objection to the 
amendment.

V. Director's Decision

    Based on the above findings, we approve the Virginia amendment as 
submitted by Virginia on November 24, 1998, and clarified on December 
6, 1999, and January 11, 2000.
    To implement this decision, we are amending the Federal regulations 
at 30 CFR Part 946 which codifies decisions concerning the Virginia 
program. We are making this final rule effective immediately to 
expedite the State program amendment process.

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).

[[Page 5784]]

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: January 13, 2000.
Tim L. Dieringer,
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 946.15 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           Date of final
       submission date             publication      Citation/description
------------------------------------------------------------------------
*                  *                  *                  *
                  *                  *                  *
November 24, 1998...........  February 7, 2000....  Policy clarification
                                                     for implementing 4
                                                     VAC 25-130-816/
                                                     817.76.
------------------------------------------------------------------------

[FR Doc. 00-2641 Filed 2-4-00; 8:45 am]
BILLING CODE 4310-05-P