[Federal Register Volume 72, Number 67 (Monday, April 9, 2007)]
[Proposed Rules]
[Pages 17449-17452]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-6577]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 946

[VA-123-FOR]


Virginia Regulatory Program

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

[[Page 17450]]


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

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SUMMARY: We are announcing receipt of a proposed amendment to the 
Virginia regulatory program under the Surface Mining Control and 
Reclamation Act of 1977 (SMCRA or the Act). Virginia is proposing to 
revise its remining regulations to make three provisions permanent by 
deleting a termination date of September 30, 2004, from the 
regulations. The amendments are intended to render the State's 
regulations consistent with recent amendments to SMCRA.

DATES: We will accept written comments on this amendment until 4 p.m. 
(local time), on May 9, 2007. If requested, we will hold a public 
hearing on the amendment on May 4, 2007. We will accept requests to 
speak at a hearing until 4 p.m. (local time), on April 24, 2007.

ADDRESSES: You may submit comments, identified by VA-123-FOR, by any of 
the following methods:
     E-mail: [email protected]. Include VA-123-FOR in the 
subject line of the message.
     Mail/Hand Delivery: Mr. Tim Dieringer, Director, Knoxville 
Field Office, Office of Surface Mining Reclamation and Enforcement, 
1941 Neeley Road, Suite 201, Compartment 116, Big Stone Gap, Virginia 
24219.
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
    Instructions: All submissions received must include the agency 
docket number for this rulemaking. For detailed instructions on 
submitting comments and additional information on the rulemaking 
process, see the ``Public Comment Procedures'' heading in the 
SUPPLEMENTARY INFORMATION section of this document. You may also 
request to speak at a public hearing by any of the methods listed above 
or by contacting the individual listed under FOR FURTHER INFORMATION 
CONTACT.
    Docket: You may review copies of the Virginia program, this 
amendment, a listing of any scheduled public hearings, and all written 
comments received in response to this document at the addresses listed 
below during normal business hours, Monday through Friday, excluding 
holidays. You may receive one free copy of the amendment by contacting 
OSM's Big Stone Gap Area Office.
    Mr. Tim Dieringer, Director, Knoxville Field Office, Office of 
Surface Mining Reclamation and Enforcement, 1941 Neeley Road, Suite 
201, Compartment 116, Big Stone Gap, Virginia 24219, Telephone: (276) 
523-4303. E-mail: [email protected].
    Mr. Leslie S. Vincent, Virginia Division of Mined Land Reclamation, 
P. O. Drawer 900, Big Stone Gap, Virginia 24219, Telephone: (276) 523-
8100. E-mail: [email protected].

FOR FURTHER INFORMATION CONTACT: Mr. Tim Dieringer, Director, Knoxville 
Field Office; Telephone: (276) 523-4303. E-mail: [email protected].

SUPPLEMENTARY INFORMATION:
I. Background on the Virginia Program
II. Description of the Proposed Amendment
III. Public Comment Procedures
IV. Procedural Determinations

I. Background on the Virginia Program

    Section 503(a) of the Act permits a State to assume primacy for the 
regulation of surface coal mining and reclamation operations on non-
Federal and non-Indian lands within its borders by demonstrating that 
its program includes, among other things, ``. . . a State law which 
provides for the regulation of surface coal mining and reclamation 
operations in accordance with the requirements of the Act . . .; and 
rules and regulations consistent with regulations issued by the 
Secretary pursuant to the Act.'' See 30 U.S.C. 1253(a)(1) and (7). On 
the basis of these criteria, the Secretary of the Interior 
conditionally approved the Virginia program on December 15, 1981. You 
can find background information on the Virginia program, including the 
Secretary's findings, the disposition of comments, and conditions of 
approval of the Virginia program in the December 15, 1981, Federal 
Register (46 FR 61088). You can also find later actions concerning 
Virginia's program and program amendments at 30 CFR 946.12, 946.13, and 
946.15.

II. Description of the Proposed Amendment

    By letter dated February 13, 2007 (Administrative Record Number VA-
1058), the Virginia Department of Mines, Minerals and Energy (DMME) 
submitted an amendment to the Virginia program. In its letter, the DMME 
stated that the program amendment revises Virginia Coal Surface Mining 
Reclamation Regulations to reflect the deletion from SMCRA at section 
510(e) of the termination date of section 510(e) of September 30, 2004.
    Section 510 of SMCRA concerns permit approval or denial. Subsection 
510(e) provides an exception to the prohibition of subsection (c) , 
which prohibits the issuance of a permit where any surface coal mining 
operation owned or controlled by an applicant is currently in violation 
of SMCRA or such other laws referenced at subsection 510(c). Prior to 
being amended by the Tax Relief and Health Care Act of 2006, subsection 
510(e) provided as follows:

    (e) After the date of enactment of this subsection, the 
prohibition of subsection (c) shall not apply to a permit 
application due to any violation resulting from an unanticipated 
event or condition at a surface coal mining operation on lands 
eligible for remining under a permit held by the person making such 
application. As used in this subsection, the term ``violation'' has 
the same meaning as such term has under subsection (c). The 
authority of this subsection and section 515(b)(20)(B) shall 
terminate on September 30, 2004.

    The effect of the deletion of the termination date in the quoted 
paragraph above (the entire last sentence was deleted) is twofold: (1) 
To make permanent the authority at subsection 510(e) of SMCRA to 
approve a permit application for surface coal mining and reclamation 
notwithstanding the existence of a violation resulting from an 
unanticipated event or condition at the site, and (2) to make permanent 
the two-year revegetation responsibility period for lands eligible for 
remining at subsection 515(b)(20)(B) of SMCRA.
    In the proposed program amendments identified below, Virginia is 
deleting the termination date of September 30, 2004, from three of its 
program regulations concerning remining.

1. 4 VAC 25-130-785.25. Lands eligible for remining

    This provision is proposed to be amended by deleting subsection (c) 
in its entirety. Currently, 4 VAC 25-130-785.25 provides as follows:

    (a) This section contains permitting requirements to implement 
4VAC25-130-773.15(b)(4). Any person who submits a permit application 
to conduct a surface coal mining operation on lands eligible for 
remining must comply with this section.
    (b) Any application for a permit under this section shall be 
made according to all requirements of this subchapter applicable to 
surface coal mining and reclamation operations. In addition, the 
application shall:
    (1) To the extent not otherwise addressed in the permit 
application, identify potential environmental and safety problems 
related to prior mining activity at the site and that could be 
reasonably anticipated to occur. This identification shall be based 
on a due diligence investigation which shall include visual 
observations at the site, a record review of past mining at the 
site, and environmental sampling tailored to current site 
conditions.
    (2) With regard to potential environmental and safety problems 
referred in subdivision (b)(1) of this section, describe the 
mitigative measures that will be taken to ensure that the applicable 
reclamation requirements of this chapter can be met.

[[Page 17451]]

    (c) The requirements of this section shall not apply after 
September 30, 2004.

    In its submittal letter, the DMME stated that the deletion of 
subsection (c) containing the termination date of September 30, 2004, 
is intended to reflect the deletion of that same termination date at 
subsection 510(e) of SMCRA.

2. 4VAC25-130-816.116 and 817.116. Revegetation; Standards for Success

    These provisions are proposed to be amended by deleting the phrase 
``included in permits issued before September 30, 2004, or any renewals 
thereof'' at the end of the first sentence in subparts (c)(2)(ii). 
Currently, 4 VAC 25-130-816.116(c) and 817.116(c) provide as follows:

    (c) (1) The period of extended responsibility for successful 
revegetation shall begin after the last year of augmented seeding, 
fertilizing, irrigation, or other work, excluding husbandry 
practices that are approved by the division in accordance with 
subdivision (c)(3) of this section.
    (2) The period of responsibility shall continue for a period of 
not less than:
    (i) Five full years except as provided in subdivision (c)(2)(ii) 
of this section. The vegetation parameters identified in subsection 
(b) of this section for grazing land or pastureland and cropland 
shall equal or exceed the approved success standard during the 
growing seasons of any two years of the responsibility period, 
except the first year. Areas approved for the other uses identified 
in subsection (b) of this section shall equal or exceed the 
applicable success standard during the growing season of the last 
year of the responsibility period.
    (ii) Two full years for lands eligible for remining included in 
permits issued before September 30, 2004, or any renewals thereof. 
To the extent that the success standards are established by 
subdivision (b)(5) of this section, the lands shall equal or exceed 
the standards during the growing season of the last year of the 
responsibility period.
    (3) The division may approve selective husbandry practices, 
excluding augmented seeding, fertilization, or irrigation, without 
extending the period of responsibility for revegetation success and 
bond liability, if such practices can be expected to continue as 
part of the postmining land use or if discontinuance of the 
practices after the liability period expires will not reduce the 
probability of permanent revegetation success. Approved practices 
shall be normal conservation practices within the region for unmined 
lands having land uses similar to the approved postmining land use 
of the disturbed area, including such practices as disease, pest, 
and vermin control; and any pruning, reseeding and/or transplanting 
specifically necessitated by such actions.

    In its submittal letter, the DMME stated that the deletion of the 
September 30, 2004, termination date at subparts (c)(2)(ii) is intended 
to reflect the deletion of that same termination date at subsection 
510(e) of SMCRA.
    As amended, 4VAC25-130-816.116(c)(2)(ii) and 817.116(c)(2)(ii) 
provide as follows:

    (ii) Two full years for lands eligible for remining. To the 
extent that the success standards are established by subdivision 
(b)(5) of this section, the lands shall equal or exceed the 
standards during the growing season of the last year of the 
responsibility period.

III. Public Comment Procedures

    Under the provisions of 30 CFR 732.17(h), we are seeking your 
comments on whether the amendment satisfies the applicable program 
approval criteria of 30 CFR 732.15. If we approve the amendment, it 
will become part of the Virginia program.

Written Comments

    Send your written or electronic comments to OSM at the address 
given above. Your written comments should be specific, pertain only to 
the issues proposed in this rulemaking, and include explanations in 
support of your recommendations. We may not consider or respond to your 
comments when developing the final rule if they are received after the 
close of the comment period (see DATES). We will make every attempt to 
log all comments into the administrative record, but comments delivered 
to an address other than the Big Stone Gap Area Office may not be 
logged in.

Electronic Comments

    Please submit Internet comments as an E-mail or Word file avoiding 
the use of special characters and any form of encryption. Please also 
include Attn: SATS NO. VA-123-FOR and your name and return address in 
your Internet message. If you do not receive a confirmation that we 
have received your Internet message, contact the Big Stone Gap Area 
office at (276) 523-4303.

Availability of Comments

    Before including your address, phone number, e-mail address, or 
other personal identifying information in your comment, you should be 
aware that your entire comment--including your personal identifying 
information--may be made publicly available at any time. While you can 
ask us in your comment to withhold your personal identifying 
information from public review, we cannot guarantee that we will be 
able to do so.

Public Hearing

    If you wish to speak at the public hearing, contact the person 
listed under FOR FURTHER INFORMATION CONTACT by 4 p.m. (local time), on 
April 24, 2007. If you are disabled and need special accommodations to 
attend a public hearing, contact the person listed under FOR FURTHER 
INFORMATION CONTACT. We will arrange the location and time of the 
hearing with those persons requesting the hearing. If no one requests 
an opportunity to speak, we will not hold a hearing.
    To assist the transcriber and ensure an accurate record, we 
request, if possible, that each person who speaks at the public hearing 
provide us with a written copy of his or her comments. The public 
hearing will continue on the specified date until everyone scheduled to 
speak has been given an opportunity to be heard. If you are in the 
audience and have not been scheduled to speak and wish to do so, you 
will be allowed to speak after those who have been scheduled. We will 
end the hearing after everyone scheduled to speak and others present in 
the audience who wish to speak, have been heard.

Public Meeting

    If only one person requests an opportunity to speak, we may hold a 
public meeting rather than a public hearing. If you wish to meet with 
us to discuss the amendment, please request a meeting by contacting the 
person listed under FOR FURTHER INFORMATION CONTACT. All such meetings 
will be open to the public and, if possible, we will post notices of 
meetings at the locations listed under ADDRESSES. We will make a 
written summary of each meeting a part of the Administrative Record.

IV. Procedural Determinations

Executive Order 12630--Takings

    This rule does not have takings implications. This determination is 
based on the analysis performed for the counterpart Federal regulation.

Executive Order 12866--Regulatory Planning and Review

    This rule is exempt from review by the Office of Management and 
Budget under Executive Order 12866.

Executive Order 12988--Civil Justice Reform

    The Department of the Interior has conducted the reviews required 
by section 3 of Executive Order 12988 and has determined that 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 because 
each program is drafted and

[[Page 17452]]

promulgated by a specific State, not by OSM. Under sections 503 and 505 
of SMCRA (30 U.S.C. 1253 and 1255) and the Federal regulations at 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.

Executive Order 13132--Federalism

    This rule does not have Federalism implications. SMCRA delineates 
the roles of the Federal and State governments with regard to the 
regulation of surface coal mining and reclamation operations. One of 
the purposes of SMCRA is to ``establish a nationwide program to protect 
society and the environment from the adverse effects of surface coal 
mining operations.'' Section 503(a)(1) of SMCRA requires that State 
laws regulating surface coal mining and reclamation operations be ``in 
accordance with'' the requirements of SMCRA, and section 503(a)(7) 
requires that State programs contain rules and regulations ``consistent 
with'' regulations issued by the Secretary pursuant to SMCRA.

Executive Order 13175--Consultation and Coordination With Indian Tribal 
Governments

    In accordance with Executive Order 13175, we have evaluated the 
potential effects of this rule on Federally-recognized Indian tribes 
and have determined that the rule does not have substantial direct 
effects on one or more Indian tribes, on the relationship between the 
Federal Government and Indian tribes, or on the distribution of power 
and responsibilities between the Federal Government and Indian tribes. 
The basis for this determination is our decision is on a State 
regulatory program and does not involve a Federal regulation involving 
Indian lands.

Executive Order 13211--Regulations That Significantly Affect The 
Supply, Distribution, Or Use Of Energy

    On May 18, 2001, the President issued Executive Order 13211 which 
requires agencies to prepare a Statement of Energy Effects for a rule 
that is (1) Considered significant under Executive Order 12866, and (2) 
likely to have a significant adverse effect on the supply, 
distribution, or use of energy. Because this rule is exempt from review 
under Executive Order 12866 and is not expected to have a significant 
adverse effect on the supply, distribution, or use of energy, a 
Statement of Energy Effects is not required.

National Environmental Policy Act

    This rule does not require an environmental impact statement 
because 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 certifies 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. 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.

Small Business Regulatory Enforcement Fairness Act

    This rule is not a major rule under 5 U.S.C. 804(2), the Small 
Business Regulatory Enforcement Fairness Act. This rule: (a) Does not 
have an annual effect on the economy of $100 million; (b) Will not 
cause a major increase in costs or prices for consumers, individual 
industries, Federal, State, or local government agencies, or geographic 
regions; and (c) Does not have significant adverse effects on 
competition, employment, investment, productivity, innovation, or the 
ability of U.S.-based enterprises to compete with foreign-based 
enterprises. This determination is based upon the analysis performed 
under various laws and executive orders for the counterpart Federal 
regulations.

Unfunded Mandates

    This rule will not impose an unfunded mandate on State, local, or 
tribal governments or the private sector of $100 million or more in any 
given year. This determination is based upon the analysis performed 
under various laws and executive orders for the counterpart Federal 
regulations.

List of Subjects in 30 CFR Part 948

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: March 2, 2007.
H. Vann Weaver,
Acting Regional Director, Appalachian Region.
 [FR Doc. E7-6577 Filed 4-6-07; 8:45 am]
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