[Federal Register Volume 72, Number 67 (Monday, April 9, 2007)]
[Proposed Rules]
[Pages 17452-17456]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-6578]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 946

[VA-124-FOR]


Virginia Regulatory Program

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

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

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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). The program amendment 
revises the Virginia Coal Surface Mining Reclamation Regulations 
concerning the distribution of topsoil and subsoil materials, 
revegetation standards for success, and to allow approval of natural 
stream restoration channel design, as developed in consultation with 
the Army Corps of Engineers.

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-124-FOR, by any of 
the following methods:
     E-mail: [email protected]. Include VA-124-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.

[[Page 17453]]

     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-
1059), 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 reflects revisions of the Virginia 
rules to be consistent with the Federal rules to allow approval of 
natural stream restoration channel design, as developed in consultation 
with the Army Corp of Engineers.
    Specifically, the following amendments are proposed:

1. 4VAC 25-130-816.22 and 817.22 Topsoil and Subsoil

    Subsections (d), concerning redistribution of topsoil and subsoil 
materials are proposed to be revised. Subsections (d) currently provide 
as follows:

(d) Redistribution.
(1) Topsoil materials removed under Paragraph (a) of this section 
shall be redistributed in a manner that--
    (i) Achieves an approximately uniform, stable thickness 
consistent with the approved postmining land use, contours, and 
surface-water drainage systems;
    (ii) Prevents excess compaction of the materials; and
    (iii) Protects the materials from wind and water erosion before 
and after seeding and planting.

    Subparts (d)(1) are proposed to be amended by inserting the words 
``and substitutes'' between the word ``materials'' and the word 
``removed.'' Also, the phrase ``and (b)'' is added immediately after 
the phrase ``under subpart (a).'' Subparts (d)(1)(i) are amended by 
adding the word ``when'' between the word ``thickness'' and the word 
``consistent.'' Also, the following sentence is added at the end of 
subparts (d)(1)(i): ``Soil thickness may also be varied to the extent 
such variations help meet the specific revegetation goals identified in 
the permit.''
    As amended, 4VAC 25-130-816.22(d) and 817.22(d) provide as follows:

(d) Redistribution.
(1) Topsoil materials and substitutes removed under Paragraphs (a) 
and (b) of this section shall be redistributed in a manner that--
    (i) Achieves an approximately uniform, stable thickness when 
consistent with the approved postmining land use, contours, and 
surface-water drainage systems. Soil thickness may also be varied to 
the extent such variations help meet the specific revegetation goals 
identified in the permit;
    (ii) Prevents excess compaction of the materials; and
    (iii) Protects the materials from wind and water erosion before 
and after seeding and planting.

    In its submittal letter, the DMME stated that these changes in the 
Virginia rules will ensure they are consistent with the corresponding 
and applicable Federal rules at 30 CFR Parts 816 and 817; see Federal 
Register Vol. 71, No. 168, pages 51684 through 51706, which became 
final on August 30, 2006. In that Federal Register notice, OSM 
finalized changes to its regulations to improve the quality and 
diversity of revegetation in the reclamation of coal mined lands. The 
revised Federal provisions govern topsoil redistribution and 
revegetation success standards.

2. 4VAC25-130-816.43 and 817.43 Diversions

    Subsections (a), concerning general requirements, are proposed to 
be amended by revising subparts (a)(4) and deleting subparts (a)(5) in 
their entirety. Currently, subparts (a)(4) and (a)(5) provide as 
follow:

    (a) General requirements.
* * * * *
    (4) Diversions which convey water continuously or frequently 
shall be lined with rock rip rap to at least the normal flow depth, 
including an allowance for freeboard. Diversions constructed in 
competent bedrock and portions of channels above normal flow depth 
shall comply with the velocity limitations of Paragraph (5) below.
    (5) The maximum permissible velocity for the following methods 
of stabilization are:

Vegetated channel constructed in soil: 3.5 feet per second;
Vegetated channel with jute netting: 5.0 feet per second;
Rock rip rap lined channel: 16.0 feet per second;
Channel constructed in competent bedrock: No limit.
* * * * *

    Subparts (a)(4) are amended by deleting the second sentence and by 
revising the first sentence. In the first sentence, all the words 
following the phrase ``continuously or frequently shall be'' are 
deleted and are replaced by the words ``designed by a qualified 
registered professional engineer and constructed to ensure stability 
and compliance with the standards of this

[[Page 17454]]

Part and any other criteria set by the Division.''
    As amended, 4VAC 25-130-816.43(a)(4) and 817.43(a)(4) provide as 
follows:

    (4) Diversions which convey water continuously or frequently 
shall be designed by a qualified registered professional engineer 
and constructed to ensure stability and compliance with the 
standards of this Part and any other criteria set by the Division.

    In its submittal letter, the DMME stated that these changes to the 
Virginia rules will allow the approval of natural stream restoration 
channel design approved by the U.S. Army Corps of Engineers and will 
ensure they are consistent with the corresponding and applicable 
Federal rules at 30 CFR Parts 816 and 817; see Federal Register Vol. 
71, No. 168, pages 51684 through 51706, which became final on August 
30, 2006. In that Federal Register notice, OSM finalized changes to its 
regulations to improve the quality and diversity of revegetation in the 
reclamation of coal mined lands. The Federal provisions govern topsoil 
redistribution and revegetation success standards.

3. 4VAC25-130-816.116 and 817.116 Revegetation; Standards for Success

    Subsections (a), concerning ground cover, production, or stocking, 
are proposed to be amended by revising subpart (a)(2). Subsections (b), 
concerning standards for success, are proposed to be amended by 
revising subparts (b)(3)(v)(C). Currently, subparts (a)(2) and 
(b)(3)(v)(C) provide as follows:

    (a) Success of revegetation shall be judged on the effectiveness 
of the vegetation for the approved postmining land use, the extent 
of cover compared to the cover occurring in natural vegetation of 
the area, and the general requirements of 4VAC25-130-816.111.
    (1) Statistically valid sampling techniques shall be used for 
measuring success.
    (2) Ground cover, production, or stocking shall be considered 
equal to the approved success standard when they are not less than 
90% of the success standard. The sampling techniques for measuring 
success shall use a 90% statistical confidence interval (i.e., one-
sided test with a 0.10 alpha error). Sampling techniques for 
measuring woody plant stocking, ground cover, and production shall 
be in accordance with techniques approved by the division.
* * * * *
    (b) Standards for success shall be applied in accordance with 
the approved postmining land use and, at a minimum, the following 
conditions:
* * * * *
    (3) For areas to be developed for fish and wildlife habitat, 
recreation, shelter belts, or forest products, success of vegetation 
shall be determined on the basis of tree and shrub stocking and 
vegetative ground cover. Such parameters are described as follows:
* * * * *
    (v) Where woody plants are used for wildlife management, 
recreation, shelter belts, or forest uses other than commercial 
forest land:
    (A) The stocking of trees, shrubs, half-shrubs and the ground 
cover established on the revegetated area shall approximate the 
stocking and ground cover on the surrounding unmined area and shall 
utilize local and regional recommendations regarding species 
composition, spacing and planting arrangement;
    (B) Areas planted only in herbaceous species shall sustain a 
vegetative ground cover of 90%;
    (C) Areas planted with a mixture of herbaceous and woody species 
shall sustain a herbaceous vegetative ground cover of 90% and an 
average of 400 woody plants per acre. At least 40 of the woody 
plants for each acre shall be wildlife food-producing shrubs located 
suitably for wildlife enhancement, which may be distributed or 
clustered on the area.
* * * * *

    Subparts (a)(2) are amended by deleting the existing ``90%'' 
success standard and replacing that standard with a ``70%'' success 
standard. In addition, the following phrase is added to the end of the 
first sentence: ``except as provided by (b) of this section.'' Also, 
the following parenthetical sentence is deleted: ``The sampling 
techniques for measuring success shall use a 90% statistical confidence 
interval (i.e., one-sided test with a 0.10 alpha error.''
    Subparts (b)(3)(v)(C) are amended by deleting the ``90%'' success 
standard and replacing that standard with a ``70%'' success standard.
    As amended, 4VAC 25-130-816/817.116(a)(2) and (b)(3)(v)(C) provide 
as follows:

    (a) Success of revegetation shall be judged on the effectiveness 
of the vegetation for the approved postmining land use, the extent 
of cover compared to the cover occurring in natural vegetation of 
the area, and the general requirements of 4VAC25-130-816.111.
    (1) Statistically valid sampling techniques shall be used for 
measuring success.
    (2) Ground cover, production, or stocking shall be considered 
equal to the approved success standard when they are not less than 
70% of the success standard, except as provided by (b) of this 
section. Sampling techniques for measuring woody plant stocking, 
ground cover, and production shall be in accordance with techniques 
approved by the division.
* * * * *
    (b) Standards for success shall be applied in accordance with 
the approved postmining land use and, at a minimum, the following 
conditions:
* * * * *
    (3) For areas to be developed for fish and wildlife habitat, 
recreation, shelter belts, or forest products, success of vegetation 
shall be determined on the basis of tree and shrub stocking and 
vegetative ground cover. Such parameters are described as follows:
* * * * *
    (v) Where woody plants are used for wildlife management, 
recreation, shelter belts, or forest uses other than commercial 
forest land:
    (A) The stocking of trees, shrubs, half-shrubs and the ground 
cover established on the revegetated area shall approximate the 
stocking and ground cover on the surrounding unmined area and shall 
utilize local and regional recommendations regarding species 
composition, spacing and planting arrangement;
    (B) Areas planted only in herbaceous species shall sustain a 
vegetative ground cover of 90%;
    (C) Areas planted with a mixture of herbaceous and woody species 
shall sustain a herbaceous vegetative ground cover of 70% and an 
average of 400 woody plants per acre. At least 40 of the woody 
plants for each acre shall be wildlife food-producing shrubs located 
suitably for wildlife enhancement, which may be distributed or 
clustered on the area.
* * * * *

    In its submittal letter, the DMME stated that these changes in the 
Virginia rules will ensure they are consistent with the corresponding 
and applicable Federal rules at 30 CFR Parts 816 and 817; see Federal 
Register Vol. 71, No. 168, pages 51684 through 51706, which became 
final on August 30, 2006. In that Federal Register notice, OSM 
finalized changes to its regulations to improve the quality and 
diversity of revegetation in the reclamation of coal mined lands. The 
revisions govern topsoil redistribution and revegetation success 
standards.

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

[[Page 17455]]

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-124-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 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

[[Page 17456]]

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. E7-6578 Filed 4-6-07; 8:45 am]
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