[Federal Register Volume 73, Number 79 (Wednesday, April 23, 2008)]
[Rules and Regulations]
[Pages 21819-21823]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-8838]


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

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 946

[VA-124-FOR; Docket ID OSM-2007-0013]


Virginia Regulatory Program

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

ACTION: Final rule; Approval of amendment.

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

SUMMARY: We are approving an amendment to the Virginia regulatory 
program under the Surface Mining Control and Reclamation Act of 1977 
(SMCRA or the Act). The revisions concern Virginia's standards for 
revegetation success for certain postmining land uses, distribution of 
topsoil and subsoil materials, and allow approval of natural stream 
restoration channel design, as developed in consultation with the Army 
Corps of Engineers. The amendment is intended

[[Page 21820]]

to render the State's regulations no less effective than the 
Secretary's regulations in meeting the requirements of the Act.

DATES: Effective Date: April 23, 2008.

FOR FURTHER INFORMATION CONTACT: Mr. Earl Bandy, Director, Knoxville 
Field Office; Telephone: (865) 545-4103 ext. 186. E-mail: 
[email protected].

SUPPLEMENTARY INFORMATION: 

I. Background on the Virginia Program
II. Submission of the Amendment
III. OSM's Findings
IV. Summary and Disposition of Comments
V. OSM's Decision
VI. 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. Submission of the 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 submission, DMME 
proposed to revise the Virginia program regarding revegetation success 
standards for postmining land uses, distribution of topsoil and subsoil 
materials, and to allow approval of natural stream restoration channel 
design as developed in consultation with the Army Corp of Engineers. We 
announced receipt of the proposed amendment in the April 9, 2007, 
Federal Register (72 FR 17452). The public comment period closed on May 
9, 2007.
    The portion of the February 13, 2007, amendment dealing with 
revegetation success standards involved proposed changes to Virginia's 
regulations at 4 VAC 25-130-816 and 817.116(a)(2) and (b)(3)(v)(C). 
DMME proposed to revise subsection (a)(2) to consider the levels of 
ground cover, production, or stocking as being equal to the approved 
success standard when they were not less than 70% of that success 
standard. DMME also proposed to revise subsection (a)(2) by adding an 
exception to the success standard requirements as provided for in 
subsection (b). Subsection (b) provides success standards for certain 
approved postmining land uses. Finally, DMME proposed to amend 
subsection (a)(2) by deleting a provision requiring that the sampling 
techniques for measuring success use a 90% statistical confidence 
interval (i.e., one-sided test with a 0.10 alpha error). In subsection 
(b)(3)(v)(C), DMME proposed to amend standards for herbaceous 
vegetation success on postmining land uses where woody plants are used 
for wildlife management, recreation, shelter belts or forest uses other 
than commercial forest land by requiring that areas planted with a 
mixture of herbaceous and woody species sustain a herbaceous ground 
cover of 70%.
    After the February 13, 2007, proposed rule was published in the 
Federal Register, DMME revised the portion of its proposed amendment 
dealing with revegetation success standards. By electronic mail dated 
April 18, 2007, (Administrative Record No. VA-1074), DMME stated that 
it wished to withdraw the changes it previously made to 4 VAC 25-130-
816 and 817.116(a)(2) regarding the sampling techniques and retain the 
original language. Additionally, DMME indicated that it wished to 
revise the herbaceous ground cover success standard of 4 VAC 25-130-816 
and 817.117(b)(3)(v)(C) to require that postmining land uses of 
wildlife management, recreation, shelter belts, or forest uses other 
than commercial forest land that are planted with a mixture of 
herbaceous and woody species must sustain a herbaceous ground cover of 
80%. We announced these proposed revisions in a July 5, 2007, Federal 
Register notice (72 FR 36632) in which we reopened the public comment 
period. The reopened public comment period closed July 20, 2007.
    After our review of the second resubmission of the amendments and 
based on our discussions regarding the amendment with DMME, DMME chose 
to resubmit 4 VAC 25-130-816 and 817.116(b)(3) and 816 and 
817.116(b)(3)(v)(C) with added language that would facilitate the 
growth of woody plants in areas to be developed for fish and wildlife 
habitat, recreation, shelter belts, or forestry. By electronic mail 
dated August 30, 2007 (Administrative Record No. VA-1082), DMME stated 
that it would revise parts of 4 VAC 25-130-816.116 and 817.116 based, 
in part, on discussions with us regarding the benefits of using the 
Forestry Reclamation Approach (FRA). The FRA is a method for reclaiming 
coal-mined land to forests and is based on knowledge gained from both 
scientific research and experience. It is designed to restore forest 
land capability and accelerate the natural process of forest 
development. The FRA advocates selection of a suitable rooting medium 
for tree growth, loosely grading the growth medium to reduce 
compaction, using ground covers compatible with growing trees, planting 
early succession and commercially valuable tree species, and using 
proper tree planting techniques. We announced these proposed revisions 
in the December 17, 2007 (Administrative Record No. VA-1084) Federal 
Register notice (72 FR 71295) in which we reopened the public comment 
period. The public comment period closed January 2, 2008. No public 
hearing was held because one was not requested.

III. OSM's Findings

    Following are the findings that we made concerning the amendment 
under SMCRA and 30 CFR 732.15 and 732.17. We are approving the 
amendment.
    1. 4 VAC 25-130-816.22 and 817.22 Topsoil and subsoil.
    Subpart (d)(1) is 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 Paragraph (a).'' The word ``Paragraph'' is pluralized. Subpart 
(d)(1)(i) is amended by adding the word ``when'' between the word 
``thickness'' and the word ``consistent.'' Also, the following sentence 
is added at the end of subpart (d)(1)(i): ``Soil thickness may also be 
varied to the extent such variations help meet the specific 
revegetation goals identified in the permit.'' Currently subsection (d) 
provides 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.


[[Page 21821]]


    As amended, 4 VAC 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.

    We find that as amended, 4 VAC 25-130-816.22 and 817.22 are 
substantively identical to and no less effective than the Federal 
regulations concerning topsoil and subsoil at 30 CFR 816.22 and 817.22 
and are therefore approved.
    2. 4 VAC 25-130-816.43 and 817.43 Diversions.
    Subpart (a)(4) is 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 Part and any other criteria 
set by the Division.'' Subpart (a)(5) is deleted in its 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
* * * * *

    As amended, 4 VAC 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. While 
these amendments have no direct federal counterparts, they are 
consistent with the federal regulations at 30 CFR 816.43(a)(4) and 
817.43(a)(4), both of which allow the regulatory authority to specify 
additional design criteria for diversions to meet the requirements of 
30 CFR 816.43 and 817.43. Therefore, the amendments are approved.
    3. 4 VAC 25-130-816.116(b)(3) and 817.116(b)(3). Revegetation; 
standards for success.
    Subsection (b) of each of these sections, concerning standards for 
success, is amended by revising subpart (b)(3). Currently, subpart 
(b)(3) provides as follows:

    (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:

    The DMME is amending these sections to indicate that for areas to 
be developed for fish and wildlife habitat, recreation, shelter belts, 
or forest products, woody plants must be stocked at least equal to the 
rates specified in the approved reclamation plan. Additionally, the 
DMME is adding a requirement that in order to minimize competition with 
woody plants, herbaceous ground cover should be limited to that 
necessary to control erosion and support the postmining land use. Seed 
mixtures and seeding rates will be specified in the approved 
reclamation plan.
    As amended, 4 VAC 25-130-816 and 817.116(b)(3) provide as follows:
    4 VAC 25-130-816.116(b)(3) and 817.116(b)(3). Revegetation; 
standards for success.

    (3) For areas to be developed for fish and wildlife habitat, 
recreation, shelter belts, or forestry, the stocking of woody plants 
must be at least equal to the rates specified in the approved 
reclamation plan. To minimize competition with woody plants, 
herbaceous ground cover should be limited to that necessary to 
control erosion and support the postmining land use. Seed mixtures 
and seeding rates will be specified in the approved reclamation 
plan. Such parameters are described as follows:
* * * * *

    While these amendments have no direct federal counterparts, they 
are consistent with the federal regulations at 30 CFR 816.116(b)(3) and 
817.116(b)(3), both of which govern revegetation success for areas to 
be developed for fish and wildlife habitat, recreation, undeveloped 
land or forest products. Therefore, we are approving the amendments.
    It should be noted that these amendments mirror the changes 
recently promulgated by OSM to the counterpart revegetation success 
standards in the Tennessee federal program, at 30 CFR 942.816(b)(3) and 
942.817(b)(3). (72 FR 9637, March 2, 2007)
    4. 4 VAC 25-130-816.116(b)(3)(v)(C) and 817.116(b)(3)(v)(C). 
Revegetation; standards for success.
    Subsection (b), concerning standards for success, is amended by 
revising subparts (b)(3)(v)(C). Currently, subsection (b)(3)(v)(C) 
provides as follows:

    (v) Where woody plants are used for wildlife management, 
recreation, shelter belts, or forest uses other than commercial 
forest land:
* * * * *
    (C) Areas planted with a mixture of herbaceous and woody species 
shall sustain an 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.
* * * * *

    The DMME is amending this section by deleting the 90% herbaceous 
ground cover requirement, and by adding a phrase requiring herbaceous 
ground cover to comply with guidelines provided by the division and 
with the approved forestry reclamation plan.
    As amended, 4 VAC 25-130-816 and 817.116(b)(3)(v)(C) provide as 
follows:
    4 VAC 25-130-816.116(b)(3)(v)(C) and 817.116(b)(3)(v)(C). 
Revegetation; standards for success.

    (v) Where woody plants are used for wildlife management, 
recreation, shelter belts, or forest uses other than commercial 
forest land:
* * * * *
    (C) Areas planted with a mixture of herbaceous and woody species 
shall sustain an herbaceous vegetative ground cover in accordance 
with guidance provided by the division and the approved forestry 
reclamation plan and establish an average of 400 woody plants per 
acre. At least 40 of the woody plants for each acre shall be 
wildlife

[[Page 21822]]

food-producing shrubs located suitably for wildlife enhancement, 
which may be distributed or clustered on the area.
* * * * *

    While these amendments have no direct federal counterparts, they 
are consistent with the Federal regulations at 30 CFR 816.116(b)(3) and 
817.116(b)(3), which govern revegetation success on areas to be 
developed for fish and wildlife habitat, recreation, undeveloped land 
or forest products. Therefore, we are approving the amendments.

IV. Summary and Disposition of Comments

Public Comments

    We asked for public comments on the amendment (Administrative 
Record No. VA-1084) and received comments from one person.
    The commenter was opposed to the addition ``and substitutes'' in 
subpart (d)(1) without any clarification. The commenter's concern was 
that the word ``substitute'' could be construed to mean whatever the 
operator wanted it to mean. However, the Virginia regulation cited 
below clearly limits the use of substitutes, thereby preventing the 
unfettered operator discretion feared by the commenter. This limitation 
is substantively identical to its federal counterparts at 30 CFR 
816.22(b) and 817.22(b).
    The Virginia regulations at 4 VAC 25-130-816.22/817.22(b) state as 
follows:

    Substitutes and supplements.
    Selected overburden materials may be substituted for, or used as 
a supplement to topsoil if the operator demonstrates to the 
division, in accordance with 4 VAC 25-130-780.18 [or 784.13] that 
the resulting soil medium is equal to, or more suitable for 
sustaining vegetation than, the existing topsoil, and the resulting 
soil medium is the best available in the permit area to support 
revegetation.

    The commenter also urged suspension of consideration of these 
amendments until Virginia submits an adequate definition of the term 
``substitutes''. In response, we disagree that a definition is needed. 
The language of limitation above is sufficient to prevent the 
unrestricted use of substitutes. Also, we note that the Federal 
regulations likewise contain no definition of this term.

Federal Agency Comments

    Under 30 CFR 732.17(h)(11)(i) and section 503(b) of SMCRA, on 
February 22, 2007, we requested comments on the amendments from various 
Federal agencies with an actual or potential interest in the Virginia 
program (Administrative Record No. VA-1060). The United States 
Department of Labor, Mine Safety and Health Administration responded 
and stated that such amendments are deemed appropriate and there 
appears to be no conflict with MSHA regulations (Administrative Record 
No. VA-1061). The United States Department of the Interior, Bureau of 
Land Management responded and stated that they found no inconsistencies 
between the proposed changes and the Federal Laws, which govern mining 
(Administrative Record No. VA-1062). The United States Department of 
the Interior, Fish and Wildlife Service, Ecological Services responded 
and stated that it appears that no impacts to federally listed or 
proposed species or federally designated critical habitat will occur 
(Administrative Record No. VA-1066).

Environmental Protection Agency (EPA) Concurrence and Comments

    Under 30 CFR 732.17(h)(11)(ii), we are required to get a written 
concurrence from EPA for those provisions of the program amendment that 
relate to air or water quality standards issued 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 revisions that Virginia proposed to 
make in this amendment pertain to air or water quality standards. 
Therefore, we did not ask EPA to concur on the amendment.

V. OSM's Decision

    Based on the above findings, we are approving the amendment sent to 
us by Virginia on February 13, 2007. To implement this decision, we are 
amending the Federal regulations at 30 CFR part 946, which codify 
decisions concerning the Virginia program. We find that good cause 
exists under 5 U.S.C. 553(d)(3) to make this final rule effective 
immediately. Section 503(a) of SMCRA requires that the State's program 
demonstrate that the State has the capability of carrying out the 
provisions of the Act and meeting its purposes. Making this regulation 
effective immediately will expedite that process. SMCRA requires 
consistency of State and Federal standards.

VI. Procedural Determinations

Executive Order 12630--Takings

    The provisions in the rule based on counterpart Federal regulations 
do not have takings implications. This determination is based on the 
analysis performed for the Federal Regulations.

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.

[[Page 21823]]

The basis for this determination is that our decision is on a State 
regulatory program and does not involve Federal regulations 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 the provisions in 
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.) because they are 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 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 fact that the State 
provisions are based upon counterpart Federal regulations for which an 
analysis was prepared and a determination made that the Federal 
regulation was not considered a major rule.

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 fact that the State 
submittal, which is the subject of this rule, is based upon Federal 
regulations for which an analysis was prepared and a determination made 
that the Federal regulation did not impose an unfunded mandate.

List of Subjects in 30 CFR Part 946

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: April 1, 2008.
Thomas D. Shope,
Regional Director, Appalachian Region.

0
For the reasons set out in the preamble, 30 CFR part 946 is amended as 
set forth below:

PART 946--VIRGINIA

0
1. The authority citation for part 946 continues to read as follows:

    Authority: 30 U.S.C. 1201 et seq.


0
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
              date                  publication                         Citation/description
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
February 13, 2007..............  April 23, 2008...  4 VAC 25-130-816.22(d)(1) and 817.22(d)(1).
                                                    4 VAC 25-130-816.43(a) and 817.43(a).
                                                    4 VAC 25-130-816.116(b) and 817.116(b).
----------------------------------------------------------------------------------------------------------------

 [FR Doc. E8-8838 Filed 4-22-08; 8:45 am]
BILLING CODE 4310-05-P