Virginia Regulatory Program, 1488-1494 [06-192]

Agencies

• DEPARTMENT OF THE INTERIOR
• Office of Surface Mining Reclamation and Enforcement
• Surface Mining Reclamation and Enforcement Office

[Federal Register Volume 71, Number 6 (Tuesday, January 10, 2006)]
[Rules and Regulations]
[Pages 1488-1494]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 06-192]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 946

[VA-122-FOR]


Virginia Regulatory Program

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

ACTION: Final rule; approval of amendment.

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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 program amendment revises the Virginia Coal 
Surface Mining Reclamation Regulations. The amendment reflects changes 
in the renumbering of Virginia Code section references to the Virginia 
Administrative Process Act; clarification regarding the filing of 
requests for formal hearing and judicial review; revisions of the 
Virginia rules to be consistent with amendments to the

[[Page 1489]]

Federal rules; regulation changes to implement requirements of Virginia 
House Bill (HB) 2573 (enacted as emergency legislation); and 
corrections of typographical errors.

DATES: Effective Date: January 10, 2006.

FOR FURTHER INFORMATION CONTACT: Mr. Robert A. Penn, Director, Big 
Stone Gap Field Office; Telephone: (276) 523-4303. Internet: 
rpenn@osmre.gov.

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 May 9, 2005 (Administrative Record Number VA-1048), 
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 changes in renumbering of the 
Virginia Code section references to the Virginia Administrative Process 
Act; clarification regarding the filing of requests for formal hearing 
and judicial review; revisions of the Virginia rules to be consistent 
with amendments to the Federal rules; revisions to allow approval of 
natural stream restoration channel design; regulation changes to 
implement requirements of Virginia HB 2573 (enacted as emergency 
legislation in Chapter 3 of the 2005 Virginia Acts of Assembly); and 
correct typographical errors.
    We announced receipt of the proposed amendment in the June 17, 
2005, Federal Register (70 FR 35199). In the same document, we opened 
the public comment period and provided an opportunity for a public 
hearing or meeting on the amendment's adequacy. We did not hold a 
public hearing or meeting because no one requested one. The public 
comment period ended on July 18, 2005. We received comments from three 
Federal agencies.
    By letter dated Nov. 14, 2005 (Administrative Record Number VA-
1055), Virginia withdrew its proposed amendments regarding revisions to 
allow approval of natural stream restoration channel design. 
Specifically, Virginia withdrew new Sections 4 VAC 25-130-816.43(d) and 
4 VAC 25-130-817.43(d), concerning diversions. In its letter, Virginia 
stated that it is currently discussing these amendments with the U.S. 
Army Corps of Engineers and that some changes may be necessary.
    By electronic mail dated December 1, 2005 (Administrative Record 
Number VA-1056), Virginia corrected a reference error in its amendment 
to 4 VAC 25-130-784.20(a)(3). Specifically, Virginia deleted an 
incorrect reference to 4 VAC 25-130-817.121(c)(4) and added in its 
place a reference to section 45.1-258(D) of the Code of Virginia.

III. OSM's Findings

    Following are the findings we made concerning the amendment under 
SMCRA and the Federal regulations at 30 CFR 732.15 and 732.17. We are 
approving the amendment.
    1. The amendment revises several subsections of the Virginia Coal 
Surface Mining Reclamation Regulations (VAC) by changing existing 
citations of Virginia Code sections to reflect the changes in the 
renumbering of the Virginia Code section references to the Virginia 
Administrative Process Act. We are approving the citation changes in 
the provisions listed below because those amendments reflect 
codification changes and do not render the program inconsistent with 
SMCRA or the Federal regulations:
    4 VAC 25-130-700.12(e) Petitions to initiate rule making.
    4 VAC 25-130-773.21(c) Improvidently issued permits; Rescission 
procedures.
    4 VAC 25-130-775.11(b)(1) Administrative Review.
    4 VAC 25-130-800.51(c)(1) Administrative review of performance bond 
forfeiture.
    4 VAC 25-130-842.15(d) Review of decision not to inspect or 
enforce.
    4 VAC 25-130-843.12(j) Notices of violation.
    4 VAC 25-130-843.13(b) Suspension or revocation of permits; pattern 
of violations.
    4 VAC 25-130-843.15(c) Informal public hearing.
    4 VAC 25-130-845.18(b)(1) Procedures for assessment conference.
    4 VAC 25-130-845.19(c) Request for hearing.
    2. 4 VAC 25-130-775.11 Administrative Review.
    New subsection (d) is added to provide as follows:

    (d) All requests for hearing or appeals for review and 
reconsideration made under this section shall be filed with the 
Director, Department of Mines, Minerals and Energy, Post Office 
Drawer 900, Big Stone Gap, Virginia 24219.

    While this provision has no Federal counterpart, its addition does 
not render the Virginia program inconsistent with SMCRA or the Federal 
regulations. Therefore, it is approved.
    3. 4 VAC 25-130-775.13 Judicial Review.
    New subsection (c) is added to provide as follows:

    (c) All notices of appeal for judicial review of a Hearing 
Officer's final decision, or the final decision on review and 
reconsideration, shall be filed with the Director, Department of 
Mines, Minerals and Energy, Post Office Drawer 900, Big Stone Gap, 
Virginia 24219.

    While this provision has no Federal counterpart, its addition does 
not render the Virginia program inconsistent with SMCRA or the Federal 
regulations. Therefore, it is approved.
    4. 4 VAC 25-130-784.20 Subsidence Control Plan.
    Subsection (a)(3) is amended by deleting language concerning pre-
subsidence survey requirements. The DMME stated that the provision was 
amended to delete those requirements that are counterpart to Federal 
regulations that were suspended effective December 22, 1999 (64 FR 
71652). The following language is being deleted: ``Condition of all 
noncommercial buildings or occupied residential dwellings and 
structures related thereto, that may be materially damaged or for which 
the reasonably foreseeable use may be diminished by subsidence, within 
the area encompassed by the applicable angle of draw; as well as a 
survey of the.'' In addition, the following language is being deleted: 
``Premining condition or

[[Page 1490]]

value of such noncommercial buildings or occupied residential dwellings 
and structures related thereto and the.'' As revised, subsection (a)(3) 
provides as follows:

    (3) A survey of the quantity and quality of all drinking, 
domestic and residential water supplies within the permit area and 
adjacent area that could be contaminated, diminished, or interrupted 
by subsidence. If the applicant cannot make this survey because the 
owner will not allow access to the site, the applicant will notify 
the owner in writing of the effect that denial of access will have 
as described in 4 VAC25-130-817.121(c)(4). The applicant must pay 
for any technical assessment or engineering evaluation used to 
determine the quantity and quality of drinking, domestic, or 
residential water supplies. The applicant must provide copies of the 
survey and any technical assessment or engineering evaluation to the 
property owner and the division.

    On December 22, 1999, OSM suspended a portion of the Federal 
regulations at 30 CFR 784.20(a)(3). In the December 22, 1999, Federal 
Register (64 FR 71652) notice that suspended those provisions, OSM 
explained why the regulations were suspended. On April 27, 1999, the 
United States Court of Appeals for the District of Columbia Circuit 
issued a decision vacating certain portions of the regulatory 
provisions of the Federal subsidence regulations including language at 
30 CFR 784.20(a)(3). National Mining Association v. Babbitt, 173 F.3d 
906 (DC Cir. 1999). In compliance with the Court of Appeals' decision, 
OSM suspended that portion of 30 CFR 784.20(a)(3) which required a 
specific structural condition survey of all Energy Policy Act (EPAct; 
enacted October 24, 1992, Public Law 102-486 Stat. 2776 (1992)) 
protected structures.
    While a portion of 30 CFR 784.20(a)(3) was suspended, the remainder 
of that provision continues in force to the extent that it applies to 
the EPAct protected water supplies survey and any technical assessments 
or engineering evaluations necessarily related thereto. With one 
exception, we find that as amended, 4 VAC 25-130-784.20(a)(3) is 
consistent with and no less effective than the Federal regulations at 
30 CFR 784.20(a)(3) as affected by the suspension of December 22, 1999, 
and can be approved. The one exception can also be approved, but for a 
different reason. One sentence of this subsection was amended in a 
subsequent submission dated December 1, 2005. Prior to the latter 
submission, the sentence stated as follows:

    If the applicant cannot make this survey because the owner will 
not allow access to the site, the applicant will notify the owner in 
writing of the effect that denial of access will have, as described 
in 4 VAC 25-130-817.121(c)(4).

    As amended, this sentence now states that:

    If the applicant cannot make this survey because the owner will 
not allow access to the site, the applicant will notify the owner in 
writing of the effect that denial of access will have pursuant to 
section 45.1-258(D) of the Code of Virginia, as amended.

    The sentence was changed to correct the erroneous reference to 4 
VAC 25-130-817.121(c)(4), which pertains to subsidence damage to 
structures, rather than water supplies, and which is proposed for 
deletion, in relevant part, in this amendment package. The Code of 
Virginia subsection now referenced pertains to water replacement, and 
states as follows:

    D. If the Director has ordered replacement under subsection B of 
this section and the operator subject to the order has failed to 
provide the map or maps in accordance with subsection C of this 
section, then the Director's order shall not be overturned absent 
clear and convincing evidence to the contrary. Upon conclusion of an 
investigation, if the Director does not order replacement under the 
provisions of subsection B of this section and reasonable access for 
a pre-mining survey was denied, the Director's determination shall 
not be overturned absent clear and convincing evidence to the 
contrary.

    When OSM approved this statutory provision on September 24, 1993, 
it noted that the provision has no Federal counterpart, but ``will not 
render Virginia's program inconsistent with any requirements of SMCRA 
or the Federal regulations.'' 58 FR 49928-9. Likewise, the newly 
revised sentence in 4 VAC 25-130-784.20(a)(3), requiring that 
landowners be notified of the effect of denial of access to conduct a 
premining water survey, has no Federal counterpart, but also will not 
render Virginia's program inconsistent with any requirements of SMCRA 
or the Federal regulations.
    5. 4 VAC 25-130-800.51 Administrative review of performance bond 
forfeiture. Subsection (e) is amended by clarifying that the ``Division 
of Mined Land Reclamation'' is now the ``Department of Mines, Minerals 
and Energy.'' As amended, subsection (e) provides as follows:

    (e) All requests for hearing, or appeals for review and 
reconsideration made under this section; and all notices of appeal 
for judicial review of a Hearing Officer's final decision, or the 
final decision on review and reconsideration shall be filed with the 
Director, Department of Mines, Minerals and Energy, Post Office 
Drawer 900, Big Stone Gap, Virginia 24219.

    We find that the revision of subsection (e) is a nonsubstantive 
change and can be approved.
    6. 4 VAC 25-130-816.11 Signs and markers.
    New subsection (a)(4) is added and existing (a)(4) is re-designated 
as (a)(5). As amended, subsection (a) provides as follows:

    (a) Specifications. Signs and markers required under this Part 
shall:
    (1) Be posted, maintained, and removed by the person who 
conducts the surface mining activities;
    (2) Be of a uniform design throughout the operation that can be 
easily seen and read;
    (3) Be made of durable material;
    (4) For permit boundary markers on areas that are located on 
steep slopes above private dwellings or other occupied buildings, be 
made of or marked with fluorescent or reflective paint or material; 
and
    (5) Conform to local ordinances and codes.

    This provision is apparently intended to accommodate the steep 
slope conditions found in some areas of Virginia. While there is no 
direct Federal counterpart to the provision, we find that the amendment 
is not inconsistent with the Federal regulations concerning signs and 
markers at 30 CFR 816.11(a) and can be approved.
    7. 4 VAC 25-130-816.64 Use of explosives; blasting schedule.
    New subsection (a)(4) concerning seismic monitoring is added and 
provides as follows:

    (4) Seismic monitoring shall be conducted when blasting 
operations on coal surface mining operations are conducted within 
1,000 feet of a private dwelling or other occupied building.

    The Federal blasting regulations at 30 CFR 816.67(d)(6) concern 
seismic monitoring of blasting operations. The Federal provision 
provides that the regulatory authority may require an operator to 
conduct seismic monitoring of any or all blasts or may specify the 
location at which the measurements are taken and the degree of detail 
necessary in the measurement. We find that the new seismic monitoring 
requirement is consistent with the Federal seismic monitoring 
requirements at 30 CFR 816.67(d)(6) and can be approved.
    8. 4 VAC 25-130-816.105 Backfilling and grading; thick overburden. 
This change is intended to revise Virginia's rule to be consistent with 
the counterpart Federal regulations at 30 CFR 816.105 concerning 
backfilling and grading, thick overburden. The Federal regulations 
concerning thin overburden are located at 30 CFR 816.104. In the 
Virginia provisions, thin overburden is addressed at 4 VAC 25-130-
816.104.

[[Page 1491]]

Virginia's 4 VAC 25-130-816.105 is amended as follows: The term 
``Thin'' is deleted and replaced by the term ``Thick'' in subsection 
(a); the term ``insufficient'' is deleted and replaced by ``more than 
sufficient'' in subsection (a); the term ``less'' is deleted and 
replaced by the term ``more'' in subsection (a); and the term ``thin'' 
is deleted and replaced by the term ``thick'' in subsection (b). As 
amended this provision provides as follows:

    (a) Thick overburden exists when spoil and other waste materials 
available from the entire permit area is more than sufficient to 
restore the disturbed area to its approximate original contour. More 
than sufficient spoil and other waste materials occur where the 
overburden thickness times the swell factor, plus the thickness of 
other available waste materials, is more than the combined thickness 
of the overburden and coal bed prior to removing the coal, so that 
after backfill and grading the surface configuration of the 
reclaimed area would not:
    (1) Closely resemble the surface configuration of the land prior 
to mining; or
    (2) Blend into and complement the drainage pattern of the 
surrounding terrain.
    (b) Where thick overburden occurs within the permit area, the 
permittee at a minimum shall:
    (1) Restore the approximate original contour and then use the 
remaining spoil and other waste materials to attain the lowest 
practicable grade, but not more than the angle of repose;
    (2) Meet the requirements of 4 VAC25-130-816.102(a)(2) through 
(j); and
    (3) Dispose of any excess spoil in accordance with 4 VAC25-130-
816.71 through 4 VAC25-130-816.75.

    We find that that as amended, VAC 25-130-816.105 is substantively 
identical to and no less effective than the Federal regulations 
concerning thick overburden at 30 CFR 816.105 and can be approved.
    9. 4 VAC 25-130-817.11 Signs and markers.
    New subsection (a)(4) is added and existing subsection (a)(4) is 
re-designated as (a)(5). New subsection (a)(4) provides as follows:

    (4) For permit boundary markers on areas that are located on 
steep slopes above private dwellings or other occupied dwellings, be 
made of or marked with fluorescent or reflective paint or material; 
and

    This provision is apparently intended to accommodate the steep 
slope conditions found in some areas of Virginia. While there is no 
direct Federal counterpart to the provision, we find that the amendment 
is not inconsistent with the Federal regulations concerning signs and 
markers at 30 CFR 817.11(a) and can be approved.
    10. 4 VAC 25-130-817.64 Use of explosives; general performance 
standards.
    New subsection (d) is added and provides as follows:

    (d) Seismic monitoring shall be conducted when blasting 
operations on coal surface mining operations are conducted within 
1,000 feet of a private dwelling or other occupied building.

    The Federal blasting regulations at 30 CFR 817.67(d)(6) concern 
seismic monitoring of blasting operations. The Federal provision 
provides that the regulatory authority may require an operator to 
conduct seismic monitoring of any or all blasts and may specify the 
location at which the measurements are taken and the degree of detail 
necessary in the measurement. We find that the new seismic monitoring 
requirement at 4 VAC 25-130-817.64(d) is consistent with the Federal 
seismic monitoring requirements at 30 CFR 817.67(d)(6) and can be 
approved.
    11. 4 VAC 25-130-817.121 Subsidence control.
    This provision is amended by deleting subsections (c)(4)(i)-(iv) 
and re-designating subsection (c)(4)(v) as subsection (c)(4). The DMME 
stated that this provision was amended to delete those requirements 
that are counterpart to Federal regulations that were suspended 
effective as of December 22, 1999 (64 FR 71652). The deleted provision 
had created a rebuttable presumption that underground mining caused 
subsidence where the subsidence damage occurred within the angle of 
draw. As amended, subsection (c)(4) provides as follows:

    (4) Information to be considered in determination of causation. 
In a determination whether damage to protected structures was caused 
by subsidence from underground mining, all relevant and reasonably 
available information will be considered by the division.

    On December 22, 1999, OSM suspended the Federal regulations at 30 
CFR 817.121(c)(4)(i)-(iv). In the December 22, 1999, Federal Register 
notice (64 FR 71652-3) that suspended those provisions, OSM explained 
why the regulations were suspended. On April 27, 1999, the United 
States Court of Appeals for the District of Columbia Circuit issued a 
decision vacating certain portions of the regulatory provisions of the 
Federal subsidence regulations including those at 30 CFR 
817.121(c)(4)(i)-(iv). National Mining Association v. Babbitt, supra. 
OSM subsequently suspended those provisions. Paragraph (v) within 30 
CFR 817.121(c)(4) applies generally to the types of information that 
must be considered in determining the cause of damage to an EPAct 
protected structure and is not limited to or expanded by the area 
defined by the angle of draw. Therefore, paragraph (v) was not 
suspended and remains in force. We find that as amended, 4 VAC 25-130-
817.121(c)(4) is no less effective than the Federal regulations at 30 
CFR 817.121(c)(4) as affected by the suspension of December 22, 1999, 
and can be approved.
    12. 4 VAC 25-130-843.13 Suspension or revocation of permits; 
pattern of violations.
    Subsection (e) is amended by clarifying that the ``Division of 
Mined Land Reclamation'' is now the ``Department of Mines, Minerals, 
and Energy.'' As amended, subsection (e) provides as follows:

    (e) All requests for hearing, or appeals for review and 
reconsideration made under this section; and all notices of appeal 
for judicial review of a Hearing Officer's final decision, or the 
final decision on review and reconsideration shall be filed with the 
Director, Department of Mines, Minerals and Energy, Post Office 
Drawer 900, Big Stone Gap, Virginia 24219.

    We find that the revision of subsection (e) is a nonsubstantive 
change and can be approved.
    13. 4 VAC 25-130-843.16 Formal review of citations.
    Subsection (e) is amended by clarifying that the ``Division of 
Mined Land Reclamation'' is now the ``Department of Mines, Minerals, 
and Energy.'' As amended, subsection (e) provides as follows:

    (e) All requests for hearing before a Hearing Officer, or 
appeals for review and reconsideration, made under this section, and 
all notices of appeal for judicial review of a Hearing Officer's 
final decision or a final decision on review and reconsideration, 
shall be filed with the Director, Department of Mines, Minerals and 
Energy, Post Office Drawer 900, Big Stone Gap, Virginia 24219.

    We find that the revision of subsection (e) is a nonsubstantive 
change and can be approved.
    14. 4 VAC 25-130-845.13 Point System.
    Subsections (c)(1) and (d) are amended to correct typographical 
errors. At subsection (c)(1), the phrase ``(a) and'' is added 
immediately before ``(b),'' and the phrase ``and (c)'' is deleted. As 
amended, subsection (c)(1) provides as follows:

    (c) Credit for good faith in attempting to achieve compliance.
    (1) The division shall deduct from the total points assigned 
under subsections (a) and (b) points based on the demonstrated good 
faith of the permittee in attempting to achieve rapid compliance 
after notification of the

[[Page 1492]]

violation. Points shall be deducted as follows.

    In the Virginia program, point assignments are located at 4 VAC 25-
130-845.13(a) and (b). We find that the revisions to subsections (c)(1) 
appropriately correct the inadvertent reference to subsection (c). 
Therefore, we are approving these revisions.
    Subsection (d) is amended by adding ``(a),'' immediately before 
``(b);'' adding ``and'' immediately following ``(b),'' and deleting 
``and (d)'' immediately following (c). As amended, the language of 
subsection (d) provides as follows:

    (d) Determination of base penalty.
    The division shall determine the base amount of any civil 
penalty by converting the total number of points calculated under 
subsections (a), (b), and (c), of this section to a dollar amount, 
according to the following schedule.

    In the Virginia program, point calculations are determined under 4 
VAC 25-130-845.13(a), (b), and (c). We find that the revisions to 
subsection (d) appropriately correct the inadvertent reference to 
subsection (d) and can be approved.
    Subsection (e), concerning credit and additional penalties for 
previous history is amended at (e)(1) by adding the words ``[e]xcept 
for a violation that resulted in personal injury or fatality to any 
person.'' As amended, subsection (e)(1) provides as follows:

    (1) Except for a violation that resulted in personal injury or 
fatality to any person, the division shall reduce the base penalty 
determined under subsection (d) by 10% if the permittee has had no 
violations cited by the division within the preceding 12-month 
period.

    The State has amended this existing provision concerning reduction 
of the base penalty if the permittee has no violations cited within the 
preceding 12-month period by adding an exception to the penalty 
reduction. While there is no direct counterpart to the language, we 
find that the amendment does not render 4 VAC 25-130-845.13(e) 
inconsistent with the Federal regulations pertaining to civil penalties 
at 30 CFR part 845 and can be approved.
    Subsection (f), concerning maximum penalty which the division may 
assess, is amended by adding the words ``except that if the violation 
resulted in a personal injury or fatality to any person, then the civil 
penalty determined under subsection (d) shall be multiplied by a factor 
of twenty (20), not to exceed $70,000.'' As amended, subsection (f) 
provides as follows:

    (f) The maximum penalty which the division may assess under this 
section for each cessation order or notice of violation shall be 
$5,000, except that if the violation resulted in a personal injury 
or fatality to any person, then the civil penalty determined under 
subsection (d) shall be multiplied by a factor of twenty (20), not 
to exceed $70,000. As provided in 4 VAC25-130-845.15, each day of 
continuing violation may be deemed a separate violation for the 
purpose of assessing penalties.

    The State has amended the existing provision concerning the maximum 
civil penalty that may be assessed, by adding an exception to the 
maximum penalty limit based on whether the violation resulted in a 
personal injury or fatality to any person. This provision is more 
stringent than the Federal regulations. However, SMCRA section 505(b) 
provides that any provision of State law or regulation which provides 
for more stringent land use and environmental controls and regulations 
than do SMCRA or the implementing regulations shall not be construed as 
inconsistent with SMCRA. Therefore, we are approving this revision.
    15. 4 VAC 25-130-845.15 Assessment of separate violations for each 
day.
    Subsection (a) is amended in the last sentence by adding the words 
``or more'' immediately following the words ``a penalty of $5,000.'' As 
amended, subsection (a) provides as follows:

    (a) The division may assess separately a civil penalty for each 
day from the date of issuance of the notice of violation or 
cessation order to the date set for abatement of the violation. In 
determining whether to make such an assessment, the division shall 
consider the factors listed in 4 VAC 25-130-845.13 and may consider 
the extent to which the person to whom the notice or order was 
issued gained any economic benefit as a result of a failure to 
comply. For any violation which continues for two or more days and 
which has been assigned a penalty of $5,000 or more under 4 VAC25-
130-845.13, the division shall assess a penalty for a minimum of two 
separate days.

    We find that as amended, 4 VAC 25-130-845.15(a) does not render the 
Virginia program inconsistent with the Federal regulations at 30 CFR 
845.15(a) concerning the assessment of separate violations for each day 
and can be approved.
    16. 4 VAC 25-130-845.19 Request for hearing.
    New subsection (d) is added to provide as follows:

    All requests for hearing or appeals for review and 
reconsideration made under this section shall be filed with the 
Director, Department of Mines, Minerals and Energy, Post Office 
Drawer 900, Big Stone Gap, Virginia 24219.

    We find that the amendment is consistent with the counterpart 
Federal regulations at 30 CFR 845.19 concerning request for a hearing 
and can be approved.
    17. 4 VAC 25-130-846.14 Amount of the individual civil penalty.
    Subsection (b) is amended in the first sentence by adding new 
language concerning an exception to the maximum penalty. As amended, 
subsection (b) provides as follows:

    (b) The penalty shall not exceed $5,000 for each violation, 
except that if the violation resulted in a personal injury or 
fatality to any person, then the civil penalty determined under 4 
VAC25-130-845.13(d) shall be multiplied by a factor of twenty (20), 
not to exceed $70,000. Each day of a continuing violation may be 
deemed a separate violation and the division may assess a separate 
individual civil penalty for each day the violation, failure or 
refusal continues, from the date of service of the underlying notice 
of violation, cessation order or other order incorporated in a final 
decision issued by the Director, until abatement or compliance is 
achieved.

    This provision is more stringent than the Federal regulations. 
However, SMCRA section 505(b) provides that any provision of State law 
or regulation which provides for more stringent land use and 
environmental controls and regulations than do SMCRA or the 
implementing regulations shall not be construed as inconsistent with 
SMCRA. Therefore, we are approving this revision.

IV. Summary and Disposition of Comments

Public Comments

    We asked for public comments on the amendment (Administrative 
Record Number VA-1053), but did not receive any.

Federal Agency Comments

    Under 30 CFR 732.17(h)(11)(i) and section 503(b) of SMCRA, on May 
12, 2005, we requested comments on the amendments from various Federal 
agencies with an actual or potential interest in the Virginia program 
(Administrative Record Number VA-1049). By letter dated May 27, 2005, 
the U.S. Department of Labor, Mine Safety and Health Administration 
(MSHA) responded and stated that it found no conflict with MSHA rules 
and regulations (Administrative Record Number VA-1050). By letter dated 
June 6, 2005, the United States Department of the Interior, Bureau of 
Land Management responded and stated that the amendment meets their 
requirements under 43 CFR 3400 and SMCRA Sec. 522 (Administrative 
Record Number VA-1051).

[[Page 1493]]

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.
    Under 30 CFR 732.17(h)(11)(i), we requested comments on the 
amendment from EPA (Administrative Record Number WV-1049). The EPA 
responded by letter dated June 20, 2005 (Administrative Record Number 
VA-1052), and stated that there are no apparent inconsistencies with 
the Clean Water Act or other statutes or regulations under EPA's 
jurisdiction. EPA offered no other comments.

V. OSM's Decision

    Based on the above findings, we are approving the amendment sent to 
us by Virginia on May 9, 2005, and as amended on November 14, 2005, and 
December 1, 2005. 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 counterpart Federal regulations. The 
revisions made at the initiative of the State that do not have Federal 
counterparts have also been reviewed and a determination made that they 
do not have takings implications. This determination is based on the 
fact that the provisions are administrative and procedural in nature 
and are not expected to have a substantive effect on the regulated 
industry.

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 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 a portion of 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 counterpart Federal regulations. The Department of the Interior 
also certifies that the provisions in this rule that are not based upon 
counterpart Federal regulations will not have a significant economic 
impact on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601

[[Page 1494]]

et seq.). This determination is based on the fact that the provisions 
are administrative and procedural in nature and are not expected to 
have a substantive effect on the regulated industry.

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 a portion 
of 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. For the portion of 
the State provisions that is not based upon counterpart Federal 
regulations, this determination is based upon the fact that the State 
provisions are administrative and procedural in nature and are not 
expected to have a substantive effect on the regulated industry.

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 a portion of 
the State submittal, which is the subject of this rule, is based upon 
counterpart Federal regulations for which an analysis was prepared and 
a determination made that the Federal regulation did not impose an 
unfunded mandate. For the portion of the State provisions that is not 
based upon counterpart Federal regulations, this determination is based 
upon the fact that the State provisions are administrative and 
procedural in nature and are not expected to have a substantive effect 
on the regulated industry.

List of Subjects in 30 CFR Part 948

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: December 19, 2005.
Brent Wahlquist,
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
------------------------------------------------------------------------
 
                              * * * * * * *
May 9, 2005, and as amended on  January 10, 2006.  4 VAC 25-130-
 November 14, 2005, and                             700.12(e);
 December 1, 2005.                                  773.21(c);
                                                    775.11(b)(1) and
                                                    (d); 775.13(c);
                                                    784.20(a)(3);
                                                    800.51(c)(1);
                                                    800.51(e);
                                                    816.11(a)(4) and
                                                    (a)(5);
                                                    816.64(a)(4);
                                                    816.105(a) and (b);
                                                    817.11(a)(4);
                                                    817.64(d);
                                                    817.121(c)(4);
                                                    842.15(d);
                                                    843.12(j);
                                                    843.13(b);
                                                    843.13(e);
                                                    843.15(c);
                                                    843.16(e);
                                                    845.13(c)(1), (d),
                                                    (e)(1), and (f);
                                                    845.15(a);
                                                    845.18(b)(1);
                                                    845.19(c);
                                                    845.19(d); and
                                                    846.14(b).
------------------------------------------------------------------------

[FR Doc. 06-192 Filed 1-9-06; 8:45 am]
BILLING CODE 4310-05-P