TITLE 4. CONSERVATION AND NATURAL RESOURCES

DEPARTMENT OF ENERGY

Fast-Track Regulation

Title of Regulation: 4VAC25-40. Safety and Health Regulations for Mineral Mining (amending 4VAC25-40-2015, 4VAC25-40-2400, 4VAC25-40-2410).

Statutory Authority: §§ 45.2-103, 45.2-1401, and 45.2-1501 of the Code of Virginia.

Public Hearing Information: No public hearing is currently scheduled.

Public Comment Deadline: August 13, 2025.

Effective Date: August 28, 2025.

Agency Contact: Larry Corkey, Policy and Planning Manager, Department of Energy, 1100 Bank Street, Eighth Floor, Richmond, VA 23219-3402, telephone (804) 692-3239, or email larry.corkey@energy.virginia.gov.

Basis: Section 45.2-103 of the Code of Virginia authorizes the Department of Energy to adopt regulations necessary to the performance of the department's duties or execution of its powers under Title 45.2 of the Code of Virginia or any other provision of law.

Purpose: The purpose of this action is to reduce regulatory burdens while maintaining the health, safety, and welfare of relevant parties. The amendments allow for compliance through alternative pathways by requiring compliance with standards issued by governmental entities, acknowledged experts, and broadly accepted by industry and regulators. Alternatives include National Electric Motor Association, Manufacturer's Operators Manual, Mine Safety and Health Administration Approved Standards. This action grants flexibility for compliance to standards to ensure the health, safety, and welfare of mine operators, employees, and impacted communities.

Rationale for Using Fast-Track Rulemaking Process: This action is expected to be noncontroversial and therefore appropriate for the fast-track rulemaking process because the amendments reduce regulatory burden, better reflect federal guidance, and provide additional pathways for compliance without compromising safety.

Substance: The amendments remove the National Fire Protection Association's National Electric Code as a document incorporated by reference to allow for compliance through alternative guidance, including more industry-specific technical standards, such as manufacturer recommendations, Mine Safety and Health Administration-approved standards, and the National Electric Motor Association standards. The National Electric Code is a generally accepted standard but is broadly applied across many industries with chapters specific to hospitals, theatres, and residential homes. This regulatory change would allow for compliance through more industry-specific standards without excluding the National Electric Code as a compliance option.

Issues: The primary advantage of this regulatory action to the public and the agency is ensuring that the agency's regulations are streamlined and modernized. There are no disadvantages to the public or the Commonwealth.

Department of Planning and Budget Economic Impact Analysis:

The Department of Planning and Budget (DPB) has analyzed the economic impact of this proposed regulation in accordance with § 2.2-4007.04 of the Code of Virginia and Executive Order 19. The analysis presented represents DPB's best estimate of the potential economic impacts as of the date of this analysis.¹

Summary of the Proposed Amendments to Regulation. Pursuant to Executive Order No 19 (2022),² the Department of Energy (department) proposes to replace a reference to the National Electrical Code with a reference to nationally recognized standards.

Background. Executive Order No 19 (2022) directed agencies to review regulatory requirements in an effort to reduce regulatory burden and streamline regulatory processes. In order to achieve these goals, the Department proposes to amend the regulatory text to eliminate a specific reference to the National Electrical Code and replace it with a generic reference to nationally recognized standards. The department would also strike a Document Incorporated by Reference (DIBR) from the regulation; namely, the National Electrical Code, 2008 edition, published by the National Fire Protection Association.³ In accordance with 1VAC7-10-140, A regulation may adopt textual matter by reference to all or any part of a publication or document. The material in the document becomes the text of the regulation and an enforceable part of the regulation. By removing the DIBR, the department thereby strikes any requirements found in the document.

Estimated Benefits and Costs. According to the department, replacing the specific reference to the National Electrical Code with a generic reference to nationally recognized standards, and removing the DIBR, would functionally remove nearly 5,000 regulatory requirements, while allowing for compliance through alternative methods. Since no significant change in practice is expected with respect to the application of electric standards in mineral mining, this regulatory action should not create a significant economic impact.

Businesses and Other Entities Affected. This regulation applies to the owners and operators of mineral mining. Currently, there are 432 mineral mining operations across the state of Virginia.⁴ The Code of Virginia requires DPB to assess whether an adverse impact may result from the proposed regulation.⁵ An adverse impact is indicated if there is any increase in net cost or reduction in net benefit for any entity, even if the benefits exceed the costs for all entities combined.⁶ No significant economic impact is expected from this regulatory proposal. Thus, an adverse impact is not indicated.

Small Businesses⁷ Affected.⁸ The proposed amendment does not appear to adversely affect small businesses.

Localities⁹ Affected.¹⁰ The proposed amendment should not create any costs or other effects on localities, nor should it disproportionally impact any locality.

Projected Impact on Employment. The proposed amendment does not appear to affect total employment.

Effects on the Use and Value of Private Property. No effect on the use and value of private property nor on the real estate development costs is expected.

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¹ Section 2.2-4007.04 of the Code of Virginia requires that such economic impact analyses determine the public benefits and costs of the proposed amendments. Further the analysis should include but not be limited to: (1) the projected number of businesses or other entities to whom the proposed regulatory action would apply, (2) the identity of any localities and types of businesses or other entities particularly affected, (3) the projected number of persons and employment positions to be affected, (4) the projected costs to affected businesses or entities to implement or comply with the regulation, and (5) the impact on the use and value of private property.

² https://www.governor.virginia.gov/media/governorvirginiagov/governor-of-virginia/pdf/eo/EO-19-Development-and-Review-of-State-Agency-Regulations.pdf.

³ See https://www.powerandcables.com/wp-content/uploads/2020/01/2008-National-Electrical-Code-NFPA-70.pdf.

⁴ Data source: Department of Energy.

⁵ Pursuant to § 2.2-4007.04 D: In the event this economic impact analysis reveals that the proposed regulation would have an adverse economic impact on businesses or would impose a significant adverse economic impact on a locality, business, or entity particularly affected, the Department of Planning and Budget shall advise the Joint Commission on Administrative Rules, the House Committee on Appropriations, and the Senate Committee on Finance. Statute does not define "adverse impact," state whether only Virginia entities should be considered, nor indicate whether an adverse impact results from regulatory requirements mandated by legislation.

⁶ Statute does not define "adverse impact," state whether only Virginia entities should be considered, nor indicate whether an adverse impact results from regulatory requirements mandated by legislation. As a result, DPB has adopted a definition of adverse impact that assesses changes in net costs and benefits for each affected Virginia entity that directly results from discretionary changes to the regulation.

⁷ Pursuant to § 2.2-4007.04, small business is defined as "a business entity, including its affiliates, that (i) is independently owned and operated and (ii) employs fewer than 500 full-time employees or has gross annual sales of less than $6 million."

⁸ If the proposed regulatory action may have an adverse effect on small businesses, § 2.2-4007.04 requires that such economic impact analyses include: (1) an identification and estimate of the number of small businesses subject to the proposed regulation, (2) the projected reporting, recordkeeping, and other administrative costs required for small businesses to comply with the proposed regulation, including the type of professional skills necessary for preparing required reports and other documents, (3) a statement of the probable effect of the proposed regulation on affected small businesses, and (4) a description of any less intrusive or less costly alternative methods of achieving the purpose of the proposed regulation. Additionally, pursuant to § 2.2-4007.1 of the Code of Virginia, if there is a finding that a proposed regulation may have an adverse impact on small business, the Joint Commission on Administrative Rules shall be notified.

⁹ "Locality" can refer to either local governments or the locations in the Commonwealth where the activities relevant to the regulatory change are most likely to occur.

¹⁰ Section 2.2-4007.04 defines "particularly affected" as bearing disproportionate material impact.

Agency Response to Economic Impact Analysis: The Department of Energy concurs with the economic impact analysis prepared by the Department of Planning and Budget.

Summary:

In response to Executive Order 19 (2022), the amendments reduce the Department of Energy's regulatory burden by eliminating the incorporation by reference of the National Fire Protection Association's National Electric Code and instead requiring regulants to signify compliance with "nationally recognized standards," which allows for compliance through alternative methods.

4VAC25-40-2015. Installation of electrical circuits; supervision of electrical work.

A. Electrical equipment and circuits shall be installed in accordance with the standards in the National Electrical Code nationally recognized standards, unless provided for in this part.

B. All work on new electric systems or modifications to existing electric systems performed in accordance with the National Electrical Code nationally recognized standards and this part shall be done by, or under the direct supervision of, a certified electrical repairman or other appropriately licensed electrical repairman. Routine maintenance of electrical systems and equipment where no changes are being made to the system or the equipment may be performed by a competent person who has received task training in the work from an appropriately licensed or certified electrical repairman.

4VAC25-40-2400. Overhead power lines.

Surface overhead power lines shall be installed and maintained as specified by the National Electrical Code nationally recognized standards.

4VAC25-40-2410. Incompatible line installations.

Telegraph, telephone, or signal wires shall not be installed on the same crossarm with power conductors. When carried on poles supporting power lines, they telegraph, telephone, and signal wires shall be installed as specified by the National Electrical Code nationally recognized standards.

DOCUMENTS INCORPORATED BY REFERENCE (4VAC25-40)

1996 Threshold Limit Values and Biological Exposure Indices published by the American Conference of Governmental Industrial Hygienists

American Table of Distances, 1991 edition, published by the Institute of Makers of Explosives

National Electrical Code, 2008 edition, published by the National Fire Protection Association

National Fire Protection Association 10: Standard for Portable Fire Extinguishers, 2013 edition

Bureau of Mines Instruction Guide 19, Mine Emergency Training, U.S. Department of Labor, 1972 edition

Blasting Guidance Manual, U.S. Department of Interior, Office of Surface Mining Reclamation and Enforcement, 1987 edition

The American National Standard for Wire Rope for Miners, M11.11980, published by the American National Standards Institute