INTRODUCTION

Part 786 in the final rules is a consolidation of Parts 786 and portions of Parts 787 and 788 of the proposed regulations. These Parts were combined so that all regulations generally relating to procedures and standards for review and decisions on applications in the permit process could be found in one place, in the chronological order of the review and decision process.

A few general comments were received concerning former Part 787 requesting that an index be prepared for all public participation Sections contained in the regulations. It was decided not to prepare such an index, but to put all public participation regulations relating to permit applications in Part 786. Each program must contain substantially the same type of public participation as called for in these regulations, subject to 30 CFR 731.13, but may be organized differently.

SECTION 786.1 Scope.

Authority, basis and purpose of this Section are discussed at 43 FR 41720 under Section 786.1; at 43 FR 41724 under Section 787.1; and at 43 FR 41726 under Section 788.1.

SECTION 786.2 Objective.

Authority, basis and purpose of this Section are discussed at 43 FR 41720 under Section 786.2; at 43 FR 41724 under Section 787.2; and at 43 FR 41726 under Part 788.

SECTION 786.4 Responsibilities.

Authority, basis and purpose of this Section are discussed at 43 FR 41720 under Section 786.4; at 43 FR 41724 under Section 787.4; and at 43 FR 41726 under Part 788.

SECTION 786.5 Definitions.

Since there were requests made to define terms found in this Part, a new definitions Section has been added. The statutory authority for this Section is Sections 102, 201(c), 501(b), 503, 504 507, 510, 515, and 516 of the Act.

A commenter requested that the terms "willful violation'' "irreparable damage to the environment,'' "demonstrated pattern of violation'', "duration'' of a violation, and "nature'' of a violation be defined for use in the regulations implementing the last half of Section 510(c) of the Act. The terms "willful violation'' and "irreparable damage to the environment'' have been defined in this new Section. Defining these terms will help clarify the requirements of Sections 786.17(d) and 786.19(i). The remaining terms were not defined, because it was believed that their use would vary greatly with different situations.

SECTION 786.11 Public notices of filing of permit applications.

Authority, purpose, and basis for this Section are discussed in 43 FR 41724 (Sept. 18, 1978), under Section 787.11 1. As set forth in the proposed regulations, Section 787.11(a) required the applicant to place an advertisement of its application in a local newspaper once a week for four weeks. Subsection 787.11(a)(2) required that the advertisement contain a map showing the specific location and boundaries of the proposed permit area. In the final rules, Section 787.11 has been numbered as Section 786.11.

2. Several comments were received concerning the map requirement. Many State and industry commenters wanted to delete the map requirement altogether, stating that it was difficult and expensive to publish a map in the paper and that the general public would find maps less helpful than textual descriptions. Others wanted to require a verbal, textual description of the permit area only. They argued that if the verbal description was complete enough, it would afford adequate public notice so that interested citizens could go to the courthouse to review the complete permit application, including the maps.

Citizens groups argued that the map requirement should be retained, since the best public notice reasonably possible is vital to public participation in the permit process. They argued that as the rest of the permit regulations have strict time limits, the public would miss its opportunities to comment, object, and request informal conferences, unless the best early notice was provided in the newspaper. Others argued that additional information should be added to the advertisement, such as the names of the adjacent property owners and more detailed information concerning the size and type of the mining operations.

700 One commenter wanted to delete the map requirement and use, instead, a newspaper advertisement with 1/2 high letters in order to give the greatest possible notice to the public. Others stated that the map requirements were confusing and wanted clarification concerning the information required to be on the map.

Some commenters argued that there are special problems with providing newspaper notices to the public in the West, because of the great distances involved and the limited ability of local newspapers to reach a wide circulation. Some State commenters wanted to give the regulatory authority more flexibility in designating which maps would be appropriate to use in the newspaper advertisement.

{15097}3. In response to these comments, the Office has made substantial changes in the required contents of newspaper advertisements.

(a) It still considers the use of a map in the advertisement of the proposed application as the preferred means of giving notice to the public. However, there may be instances when a verbal description will be a better means of giving such notice, so the regulation has been changed to provide for the alternative of a written description of the proposed permit area. The requirements for the contents of the map or the description contained in Section 786.11(a)(2)(i) (iv) have also been simplified.

There is no prescribed type of map or form of map set forth in the final regulations. This will be left to the regulatory authorities to specify under particular regulatory programs. Each State will have different maps which are in common usage by the surface mining industry. Some States already require small general location maps in the corner of more detailed maps submitted to the regulatory authority. Maps such as these could be used in the advertisement. The critical concern in these rules is that the map, if used, be large enough to be read and used by local residents, and that it contain enough information so that the proposed permit area is easy to locate.

The same principles hold true if a verbal description is used. The specific items to be used in the map or verbal description are listed in Section 786.11(a)(2)(i) (iv). If a verbal description is used, highly technical legal terminology should be avoided in describing the boundaries of the proposed permit area. The exact location of the proposed permit area should be immediately apparent to any local resident reading the description, preferably by use of local geographic names. The name of the USGS 7.5 minute quadangle which contains the proposed permit area is required, so that persons who desire a more precise location of the permit area can easily do this by obtaining their own USGS topo map. This is important in areas where the proposed permit area may be a considerable distance from the county courthouse, where a USGS map will be included in the file of the permit application. (b) The suggestion that the notice be printed in 1/2 high letters in the newspaper was rejected, since this would take up an inordinate amount of space in the newspaper, be expensive, and still would not give notice as well as a map. Pursuant to Section 507(b)(6) of the Act, the newspaper advertisement is supposed to notify the public that a surface coal mining operations application has been made, who made it, where the proposed permit area will be located, where a copy of the application can be found, and where and when comments can be submitted on the application.

Comments suggesting that additional information be placed in the newspaper advertisement were also rejected. While it might be desirable to put as much information as possible concerning the proposed operation in the newspaper, all relevant information is contained in the application on file at the local courthouse. It should be noted, however, that a State regulatory authority would not be precluded from requiring additional information.

(c) Regarding the problems with newspaper circulation in the Western States, the Office believes that the requirement for four weekly publications of the advertisement should generally suffice to insure that the public receive notice. However, if in particular localities close examination reveals that this system will not afford adequate notice, more effective procedures may be specified for individual permanent regulatory programs.

3. Under Section 522(e)(4) of the Act, mining is prohibited within 100 feet of the outside right-of-way of a public road, subject to two exceptions. Approval of those exceptions may be granted by the regulatory authority only after notice and opportunity for a public hearing. Proposed Section 787.11(a)(5) required that the newspaper advertisement of the permit application also contain notice of any proposed mining within 100 feet of a public road or any relocation of a road caused by mining. Several commenters asked that this requirement be deleted or moved to Section 778.16, which concerns the relationship of the permit application to areas designated as unsuitable for mining. These comments were rejected. I11The notice of proposed mining near a public road is required so that Section 522(e)(4) of the Act and 30 CFR 761.11 are adequately implemented. Placing the notice in the public advertisement of the permit application will also allow any informal conference on the application to serve as a public hearing on the road relocation, as is set forth in Section 786.14(d). Moving this Section to Section 778.16 would only confuse matters concerning the content of the public advertisement.

4. A number of comments were received suggesting that the public notification process not begin until the regulatory authority determines that a permit application is complete, so that public participation is based on all relevant information. Other commenters suggested that the application be filed at the local courthouse as early as possible, preferably at the same time as the first date of the required newspaper advertisement.

(a) The suggestion that a finding of completeness be required before the public notification process begins was accepted. The word "complete'' has been added before the word "application'' in Sections 786.11(a) and 788.14(b)(2).700 The concept of a "complete application'' is defined at Section 770.5, is found in Section 771.23(a), and flows through the rest of this Subchapter. This is so all necessary planning and information gathering will be finished prior to filing the application. However, even after the filing required by Sections 771.23(a) and 786.11(a), there may need to be subsequent, modifications to applications, if some information or plans are found to be inadequate and not complete, as a result of public participation. Section 786.11(d)(2) therefore, requires that any subsequent revisions of permit applications be made simultaneously in the copy on file with the regulatory authority and the copy on file at the local courthouse.

(b) In response to requests that the public have as long a period as possible to review permit applications, the Office decided to change the regulations to require the filing of copies of permit applications at the local courthouse at the same time as copies are filed with the regulatory authority, the first date of newspaper publication. Because of the highly technical engineering and hydrological data contained in permit applications, it was felt that a longer period was needed for public review of the applications. This change gives the public 28 more days to review the application prior to the deadline for the filing of objections, comments, or requests for informal conferences. Hopefully, this will also reduce objections and requests for informal conferences, and allow objectors to narrow their areas of concern prior to requesting a conference.

5. One comment was received asking that Section 786.11(c) specify the governmental units to whom actual notice of a permit application is to be sent. This comment was rejected. The determination of which governmental units are to be sent such notice is a task for each regulatory authority familiar with the governmental and administrative structure in its particular State. The Office's regulations cannot list all governmental units in all States to whom notice is to be sent.

{15098}6. Many commenters argued that Sections 786.11(c)(1)(4) be modified to delete "Federal agencies'' as governmental entities which would receive actual notice of a permit application. These commenters contended that Section 513(a) of the Act does not require the regulatory authority to notify Federal agencies. It is true that Section 513(a) expressly requires giving notice only to "local'' public bodies. However, the purpose of Section 786.11(c) is broader than merely implementing the express language of Section 513(a) of the Act. Under the Act and these regulations, Federal and State agencies have a wide variety of roles to fulfill in the permit process: 700 (i) "Appropriate Federal and State agencies'' (e.g., EPA, USGS, USSCS, State/water-quality data collection authorities) have to supply area-wide water quality data for the purposes of hydrologic assessments. Sections 507(b)(11), 510(b)(3), of the Act; (ii) The Secretary of Agriculture through the USSCS has to review permit materials related to prime farmlands. Sections 507(b)(16), 510(d), 515(b)(7), of the Act, 30 CFR 779.27, 783.27, 785.17, 823.1 et. seq.

(iii) Permits under the Act must be coordinated with permit and plan requirements under laws administered by other Federal and State agencies, under Sections 503(a)(6), 504(h), 508(a)(9), of the Act, and 30 CFR 770.12. Further, additional coordination may be required under Federal historical preservation and fish and wildlife statutes. 30 CFR Part 761; Sections 770.12; 779.20/783.20; 780.16/784.21; 786.19(o). (iv) Permits under the Act can only be issued after the applicant demonstrates that it will comply with all applicable design and performance standards. (Subchapter K). Many of the standards involve other Federal and State agencies (See Sections 515(b)(2), 515(b)(8), 515(b)(10)(3), 515(b)(12), 515(b)(15), 515(c), 515(e) of the Act), for the purpose of making concurrences with or to comply with the performance standards used by operators.

(v) Permits cannot be issued if the applicant is currently in violation at other mines of air or water pollution control laws enforced by other Federal or State agencies (Section 510(c) of the Act) unless those other agencies agree that satisfactory abatement procedures are being followed.

See 30 CFR 786.19 (h) and (i).

(vi) Coal mining on Federal lands necessarily involves Federal agencies, such as the Secretary of Interior (see Section 523 of the Act); USGS, BLM (See 30 CFR Parts 211 and 741) and, on National Forests, the Secretary of Agriculture and the U.S. Forest Service. (See Section 522(e)(2) of the Act).

Because implementation of the permit scheme under the Act requires substantial involvement of other Federal and State agencies on a continuing basis, there must be adequate provisions made in the regulations for the regulatory authority to ensure that those other agencies are notified, and, if relevant, participate in the application review process by filing comments with the regulatory authority. Furthermore, Section 513(b) of the Act expressly authorizes the "head of any Federal, State or local governmental agency or authority . . .'' to request that the regulatory authority hold informal conferences, which may be important to effect the "coordination'' required by Sections of the Act. In order to achieve this coordination, the Office's regulations need to provide for adequate notice to other Federal and State agencies. Therefore, this requirement was retained in the final regulations.

7. Many commenters objected to the provision in Section 787.11(c)(5) which required the regulatory authority to provide actual notice of permit application to any persons who request such notice. Some commenters suggested that the right to request actual notice of permit applications be limited to persons with an interest which may be adversely affected by the application. Other commenters stated that the request should be renewed periodically to prevent unnecessary notices. Others wanted the entire Section deleted as unnecessary and unduly burdensome. Still others wanted actual notices sent to all surface and mineral owners within 500 feet of a proposed mining operation.

The Office has decided to accept the comments suggesting that the Section be deleted. Actual notice is not specifically required by the Act and would impose a significant administrative burden on the regulatory authority.

8. Many commenters objected to the requirements in Section 787.11(d) allowing public access to permit information. Some objected to the requirements for filing a copy of the permit application at a local court-house, and others asked what alternative public offices would be appropriate for filing the copy. Some objected to allowing the public to copy permit information and others wanted mandatory langauge used requiring that certain information be kept confidential.

Section 507(e) of the Act requires that a copy of the application filed with the regulatory authority also be filed at the county courthouse for the area where the mining is proposed. Therefore, comments suggesting deletion of the Section of the regulation implementing these requirements were rejected.

700 Section 507(e) of the Act also allows the regulatory authority to approve another "Appropriate public office . . . where the mining is proposed to occur,'' for filing of the copy of the application. Several comments were received from States asking whether a particular office would be "appropriate'' as an alternative to a local courthouse. In response, the following language was added to the last sentence of Section 786.11(d)(1): ". . .

public office, if it is determined that the office will be more accessible to local residents than the county courthouse.'' A purpose of the Act is to give local residents who will be most affected by a proposed operation the greatest opportunity reasonably possible for access to information about the application. See Section 507(b)(6) of the Act. Further, as commenters pointed out, requiring filing of a copy of the application at the county courthouse may not always accomplish this purpose, especially in the West where some counties encompass vast distances. The additional language will ensure that the criteria used in approving an alternate public office is convenience and accessibility for the public, rather than convenience for the regulatory authority or the operator.

Generally, all information contained in a permit application on file with the regulatory authority is to be made available to the public for inspection and copying. See Sections 102(i), 507(e) and 517(f) of the Act. There are certain exclusions from this general rule found at Sections 507(b)(17), 508(a)(12) and (b) of the Act. These exclusions state that certain information concerning the coal seam itself, and reclamation plan information required to be kept confidential under State law shall be kept confidential. Otherwise, all information is available to the public. Therefore, comments suggesting that copying not be allowed are rejected. Moreover, confidentiality provisions at Section 786.15 are adequate to implement the Act.

SECTION 786.12 Opportunity for submission of written comments on permit applications.

Authority, purpose, and basis of this Section were discussed at 43 FR 41725 (September 18, 1978), under Section 787.12.

{15099}1. Many comments were received objecting to proposed Section 787.12(a)(2) which allowed any person to file comments concerning a permit application. Some commenters urged that the entire Section be deleted as being beyond the requirements of Section 513(a) of the Act, while others urged that the right to file comments be limited to persons with interests which may be adversely affected by the proposed mining operations. In response, the Office has decided to limit the right to file comments on the application to governmental units which receive notice of the filing of the permit application. The need for governmental agency comment on the application is important to effect the coordination requirements of the Act, as explained above. This does not limit in any way the right of other persons who are or may be adversely affected by issuance of a permit for the proposed operations to file objections to the application under Section 786.13, or to request an informal conference on the application under Section 786.14. 2. Many commenters requested that Section 786.12(c) be reworded to require that all comments submitted to the regulatory authority under Section 786.12 also be transmitted to the applicant. These comments were accepted to insure that the applicant is provided with an opportunity to respond to comments.

SECTION 786.13 Right to file objections.

Authority, purpose and basis for this Section were discussed at 43 FR 41725 (September 18, 1978), under Section 787.13.

Many comments were received requesting that proposed Section 787.13(a) be modified to more closely reflect the language of Section 513(b) of the Act to limit the right to file written objections to those persons with interests which are or may be adversely affected by the proposed operations. The Office accepted these comments.

SECTION 786.14 Informal conferences.

Authority, purpose and basis for this Section were discussed in 43 FR 41725 (September 18, 1978), under Section 787.14.

1. Many comments similar to those discussed above for Section 786.13 were received concerning the rights of persons to request informal conferences on permit applications. Proposed Section 787.14(a) gave any person the right to request such a conference. Commenters suggested that this right be restricted to those persons with an interest which is or may be adversely affected by the issuance of the permit, as found in Section 513(b) of the Act. These comments were accepted.

2. Citizens groups were concerned that proposed Section 787.14(b)(3) gave too much discretion to the regulatory authority in determining whether to conduct visits to areas of proposed mines in preparation for informal conferences. Some suggested that the visits be made mandatory upon request, while others asked that visits be denied only if the request were made in bad faith. Industry commenters wanted the right to be deleted or limited by the concurrence of the operator. I11There will be many factors to consider in determining whether a minesite visit would be useful in particular cases, such as terrain, distances involved, availability of data on the area already on file, the materiality of data to be obtained by a visit and the number of persons requesting such a visit. Weighing of these factors is best left to the discretion of the regulatory authority, on a case-by-case basis. However, that discretion is not to be used by the regulatory authority so as to defeat public participation in the permit process. Visits to proposed mine sites prior to an informal conference should ordinarily be conducted upon request, unless there are substantial reasons not to do so. Informal conference preparation includes the right to minesite visits under the Act. therefore, the final regulation has been left as proposed.

3. A number of comments were received on proposed Section 787.14(b)(4) concerning the determination of the issues to be heard at the informal conference. As proposed, the issues at the informal conference would be limited to those raised in written comments, objections, and requests for hearing. In the preamble to the proposed regulations, the Office solicited comment on how issues were to be determined. Some commenters argued that the issues to be heard should be those raised at any time prior to the conference. Others wanted to allow issues to be raised at the time of the hearing, while others wanted a limit placed on the issues to be considered. Some commenters urged that the regulatory authority be allowed to determine which issues could be heard.

The Office feels that all issues raised in comments, objections, and requests for hearings, as well as the issues raised by the criteria for approval of a permit found in Section 786.19, would be proper subjects for these conferences. Since it is the object of the regulations to allow regulatory authorities to control procedures of informal conferences, the Office has decided to delete proposed Section 786.14(b)(4) in the final rule. This will allow the regulatory authorities to adopt whatever procedures they consider necessary to control consideration of issues at the conferences. However, this is to be done subject to the policy that all information concerning the sufficiency of the application, the applicant, the area to be affected, and whether the criteria for approval to be met are relevant and proper for consideration at these conferences. Therefore, procedures adopted by regulatory authorities cannot unduly restrict public participation at the conferences, and must allow for full and free examination of all relevant issues concerning the permit application.

700 SECTION 786.15 Public availability of information in permit applications on file with the regulatory authority.

Authority, purpose and basis for this Section are discussed in 43 F.R. 41725 (Sept. 18, 1978), under Section 787.15.

1. Many industry commenters objected to the rquirements in proposed Section 787.15(a) which allowed public access to permit information. Some objected to allowing the public to copy permit information and others wanted mandatory language used requiring that certain information be kept confidential.

Generally, all information contained in a permit application on file with the regulatory authority is to be made available to the public for inspection and copying, pursuant to Sections 102(i), 507(e), and 517(f) of the Act. There are certain exclusions from this general rule found at Sections 507(b)(17) and 508(a)(12) and (b) of the Act. These exclusions state that certain information concerning the coal seam itself and other information which is required to be kept confidential under State law shall be kept confidential.

As exceptions to the general purposes of the Act, these exclusions should be interpreted narrowly. The language used in the final rules provides for adequate exclusions. Otherwise, all information will be available to the public. Comments suggesting that copying of permit information not be allowed were rejected, because if information is publically available, then it should be allowed to be disseminated under Section 517(f) of the Act.

2. One commenter expressed the concern that unless Section 786.15(a) (3) was deleted or limited, the State could withhold reclamation plan information essential to informed public participation in the permit process. This Section is required by Section 508(b) of the Act. However, it should be pointed out that this exclusion to the public availability of information pertains only to reclamation plan information required by Section 508(a) of the Act, and not to any other permit or bonding information required under other provisions of the Act. Moreover, State law is no longer in effect in a Federal program. (See Section 504(a)), of the Act.) Section 786.15(a)(3) will have no applicability where the Office is the regulatory authority for a Federal program.

3. One commenter expressed concern that information required to be kept confidential under Section 786.15 be shared with the Office upon request.

It was felt that no change in Section 787.15 was necessary, since information sharing is adequately covered by 30 CFR 840.14 and 842.16.

SECTION 786.17 Review of permit applications.

Authority, purpose and basis for this Section are discussed in 43 FR 41726 (September 18, 1978), under Section 788.12.

An additional Subparagraph has been added to Section 786.17(a) in the final rules, by transfer and modification of material from proposed Sections 780.15(c) and 784.20(c). This addition was made in response to comments suggesting that coordination of reclamation plan contents of applications with fish and wildlife management agencies be the responsibliity of the regulatory authority, rather than the applicant. Authority for Section 786.17(a)(2) of the final rules is Sections 102, 201, 501, 503, 504, 505, 506, 507, 508, 510, 515, 516, 517, and 522 of the Act, The Endangered Species Act (ESA), and The Fish and Wildlife Coordination Act, and regulations adopted by The U.S. Fish and Wildlife Service under the ESA.

700 1. Many comments were received concerning the schedule of violations which permit applicants are to make available under Section 787.17(c). This Section requires the the applicant list all violations of the Act or other State or Federal air and water environmental protection statutes or regulations at any of its coal mining operations for a three-year period proceeding the application. If the regulatory authority ascertains during the review of a permit application that violations of those laws currently exist, then Section 786.17(c)(1) would require that satisfactory proof of the abatement of the violation be submitted by the applicant to the regulatory authority, unless the conditions of Section 786.17(c)(2) apply. Finally, until satisfactory proof of abatement of those violations is submitted, 30 CFR Section 786.19(g) (h) would preclude issuance of a permit.

(a). Many commenters objected to the language in Section 787.17(c) which called for listing of all violations of "soil or water environmental protection laws.'' (emphasis added.) The commenters suggested that this language be changed to "air or water environmental protection'' to be consistent with Section 510(c) of the Act. Section 510(c) of the Act covers "air or water environmental protection'' laws, not "soil or water.'' The choice of "soil'' instead of "air'' in the proposed regulations was an oversight and has been changed to specify that violations of "air or water'' environmental protections laws are to be listed. (b) There were also many objections to the requirement to list violations of laws outside the State in which the application is filed. As is discussed in detail in the preamble to Section 778.14, the Office accepted these comments, in part. The Office has concluded that the regulations implementing Section 510(c) of the Act should include violations of all State laws, rules, and regulations that are adopted under Federal air or water environmental protection statutes and regulations. Section 786.17(c) has been clarified to indicate that only violations of those State laws which are passed to implement Federal air or water environmental protection laws are subject to the final rules.

In addition, language has been added at Section 786.17(c)(2), to allow the regulatory authority to issue a permit when, despite violations subject to Section 786.17(c), the applicant is pursuing, in good faith, rights to administrative or judicial review of the violations in direct appellate action. This provision is explained in greater detail in the preamble to Section 778.14. In addition, Section 786.17(c)(2) contains a further qualification that if the appeal is lost at any point by the applicant, any surface coal mining operations being conducted under a permit issued according to this Section must be terminated until the provisions of Section 786.17(c)(1) are satisfied. This qualification was deemed necessary because the policy articulated by Congress no longer applies. That is, pursuit of the appeal can no longer be viewed as being completely in "good'' faith once a stay is denied or the appeal lost on its merits.

3. One commenter asked that the word "process'' be defined as used in the phrase found in Section 786.17(c)(1)(ii): "violations which are in the process of being corrected.'' Section 786.17(c) implements Section 510(c) of the Act, which requires that all permit applicants attach a schedule of violations of air or water environmental laws, as well as violations of the Act to their application. No application can be issued if any violation is listed, unless it is shown that it has been corrected, or is in the process of being corrected in a manner satisfactory to the governmental unit with jurisdiction over the violation. Therefore, definition of the term "process'' would be left to the agency that originally charged the applicant with the violation. The Office felt it unnecessary to add a definition of that term.

4. Many commenters asked that a new Section be added to the regulations to specify procedures for hearings on permit denial for a demonstrated pattern of violations pursuant to Section 786.17(d). The regulations provide the permit applicant with an "opportunity for an adjudicatory hearing . . . as provided for in the regulatory program.'' Industry commenters wanted the procedures left unspecified, and determined by the regulatory authority.

The hearing on a pattern of violations is the only formal hearing provided for in the permit review process prior to a decision being made by the regulatory authority. If there is a finding that the applicant has a demonstrated pattern of violations then, under Section 786.19(i), no permit can be issued. An adjudicatory hearing of this importance should be afforded the same procedural safeguards as set forth in proposed Part 789 for formal hearings to review decisions on permits. Therefore, language has been added to Section 786.17(d) which specifies that all hearings on patterns of violation shall be conducted pursuant to the same procedures as are set forth in 30 CFR Section 787.11. Section 786.17(d) was not modified, therefore. However, this Section should not be read so as to unfairly penalize the permit applicant whose prior violations of the Act were caused by owners who are no longer currently involved in any way with the company. In such circumstances, there would not be the requisite "duration'' to justify a finding that the applicant had compiled a "pattern of willful violations of the Act.'' SECTION 786.19 Criteria for permit approval and denial.

The authority, purpose, and bases for this Section were, in general, discussed in 43 FR 41721 41723 (September 18, 1978), under proposed Section 786.15.

1. Because of reorganizing and renumbering of certain portions of the regulations, editorial changes were made in Section 786.19. In Subsection (d) the phrase "The area within . . .'' has been deleted as being redundant. In Subsection (e) the reference to 30 CFR 761.12(b) has been changed to Section 761.11(c). In Subsection (f) reference to right-of-entry information in 30 CFR 782.15 has been added. Subsection (g) had been condensed by simply referring to the applicant's duty under Section 786.17(c) to submit satisfactory information on its history of compliance. In subsection (m) the reference to 30 CFR 816.124 and 817.124 have been corrected to Sections 816.133 and 817.133.

2. Many comments were received on proposed Section 786.11 requesting that a finding of completeness by the regulatory authority be required be fore an application is submitted for the public review process. As discussed in the preamble to final Section 786.11, the Office has agreed that such a finding will be made at that point in the permit process. In addition, under final Section 786.19(a) such a finding will be necessary after the opportunity for public participation, in order for the permit application to be approved or disapproved, as provided for under Sections 510(a) and (b) of the Act. If the application is not complete, then it must be denied. If the applicant desires to complete the application and reapply, it must be handled as a new application.

{15101}3. Several comments were received concerning the requirement in proposed Section 786.15(e) that the regulatory authority find that a proposed operation would not adversely affect any places listed in the National Register of Historic Places, or any places eligible for such listing. The commenters felt that only those places actually listed should be protected and that the word "eligible'' should be deleted. The Office did not accept these suggestions for the reasons set out in the preamble to Part 761.

These same commenters also suggested that proposed Section 786.15(e) be amended to explicitly specify that a permit could be issued, notwithstanding adverse effects on a public park or historical place, if its approval was granted by the regulatory authority and agency with jurisdiction over the park or place. These comments were not accepted because additional language was unnecessary. Section 786.19(e) of the final rules cross-references to Section 761.11(c) of the final rules. The latter Section contains the exception langugage suggested by the commenters.

700 4. Several comments were received on proposed Sections 786.15(g) and (h) which require findings by the regulatory authority concerning the applicant's history of compliance. One commenter felt that the grounds for denial of a permit under those Sections were being interpreted too narrowly. It was argued that a denial should also be based upon previous permit revocations, bond forfeitures, violations for mining without a permit, or any other failure to comply with the Act.

5. Several commenters suggested that the violations considered in determining a pattern of violations should be limited to those which occurred within the past five years. Section 786.17(d) is based upon Section 510(c) of the Act. This Section of the Act places no time limitation upon the violations to be considered. Research of the legislative history reveals no indication that Congress intended that Section 510(c) of the Act be limited only to violations occurring in the last five years. Indeed, a long and continuing history of past violations is the most compelling case for invoking this provision.

The Office is aware that many States will not issue permits to operators who have had previous permits revoked or bonds forfeited. As a more stringent enforcement tool, this would not be precluded by either final Sections 786.17(d) or 786.19(i). These Sections require permit denial after a finding that an operator has a demonstrated pattern of violations. Although this finding could be made upon the basis of a number of violations which may not have resulted in a revocation or forfeiture, it would also be proper for the regulatory authority to consider any revocations and forfeitures, as well as all other failures to comply with the Act.

In order to make clear that a permit applicant must have a history of compliance with all portions of the Act, and not just Title V, final Section 786.19(h) has been added to require a finding that an applicant has paid all applicable reclamation fees required under Title IV of the Act.

5. One commenter suggested that proposed Section 786.15(h) be revised so that violations to be considered in determining a pattern of violation be limited to those occurring in the past five years. This same comment was made in relation to proposed Section 788.12(d) which sets forth the requirements for the determination of a pattern of violations. The Office has decided that the regulatory authority is not to be so limited in considering past violations. Discussion of this decision is found in the preamble to final Section 786.17.

6. A few commenters contended that there was no justification in the Act for proposed Section 786.15(i). This Section requires that the regulatory authority find that a proposed operation will not be inconsistent with other actual or anticipated surface coal mining and reclamation operations adjacent to it. Section 510(b)(3) of the Act requires that the regulatory authority assess the probable cumulative impact on the hydrologic balance of all mining anticipated in an area. In addition, it must also find, prior to approval, that a proposed operation will minimize damage to the hydrologic balance outside the permit area. This requirement is provided for in Section 786.19(c). In addition Sections 508(a)(3) and (8) of the Act require a description of the proposed postmining land use be "compatible with adjacent land use'', and Section 508(a)(7) of the Act requires a timetable for each step in the reclamation plan.

These provisions of the Act demonstrate the Congressional intent that surface coal mining operations be well planned and coordinated before, during and after the actual conduct of operations. Section 786.19(j) enables the regulatory authority to insure that adjacent operations are worked in a coordinated manner, and not at cross-purposes to each other. This will help minimize adverse impacts on any other operation, the environment, or the public. Related comments suggested that proposed Section 786.15(i) be revised to specify that the rules relate generally to consistency with land uses on adjacent property. This was not done because the issue of consistency with uses of adjacent land-use is separately addressed in Section 786.19(m), which cross-references to 30 CFR 816.133817.133. The latter Sections require consistency at 816.133(c)(1) and 817.133(d)(1).

In addition, these same commenters suggested that proposed Section 786.15(i) be revised to specify explicitly that operations on adjacent property be reasonably anticipated. This suggestion was not adopted by the Office. The text of the rule implicitly includes that it will not be invoked unless it is reasonable to expect that surface coal mining and reclamation operations will be conducted on adjacent land during the term of the permit involved. Therefore, the regulation was retained at final Section 786.19(j).

7. A commenter felt that proposed Section 786.15(k) should be revised so that all special demonstrations required in the permit application for operations on prime farmland be required findings under this Section. Since specific information and findings for such operations are required under final Section 785.17, the Office believes that it is unnecessary to repeat them in Part 786. However, for operations involving alluvial valley floors, the Office has added the requirement for a finding that the applicant has satisfied Section 785.19. Criteria for approval of other specific categories of mining are found in Part 785 of the regulations.

8. Two commenters felt that there was no justification in the Act for proposed Section 786.15(m). This Section requires a finding by the regulatory authority that all special approvals required by Subchapter K have been made. Sections 102(c) and 510(b) of the Act set forth the general requirement that surface mining operations not be conducted where reclamation as required by the Act is not feasible. In order to insure that this mandate is carried out, numerous facets of a proposed operation and reclamation plan require specific approval by the regulatory authority, as opposed to general approval of the whole permit. The finding made by the regulatory authority under this Section insures that the regulatory authority will perform a last check to make sure all such specific considerations and approvals have been completed. Because this requirement is essential to prevent damage to the environment caused by practices which could render necessary reclamation not feasible, the regulation has been retained.

{15102}9. Section 786.19(o) was added to the regulations pursuant to consultation with the U.S. Fish and Wildlife Service (FWS) of the Department. In accordance with Section 7 of the Endangered Specials Act of 1973, and 50 CFR Part 402, the Office was required to consult with the FWS in regard to the Office's permanent program regulations.

This consultation resulted in the FWS making specific recommendations for modifications or additions to the proposed permanent regulations. These proposed changes were suggested in order to insure that the protection granted threatened or endangered species and critical habitat under the Endangered Species Act would be provided under the Office's permanent regulations. These recommendations were adopted, under authority of Sections 4 and 7 of the Endangered Species Act of 1973; 50 CFR Part 402; and Sections 102, 201, 501, 503, 504, 507, 508, 510, 515, 516, 517 and 522 of the Act.

700 SECTION 786.21 Criteria for permit approval or denial: Existing structures.

This Section has been added to the final rules in response to comments solicited at 43 Fed. Reg.

41735 (Sept. 18, 1978), regarding structures which exist prior to the approval of a State or Federal program in a particular State. As is explained in further detail in the preamble to Subchapter A, the Office has adopted final rules which authorize special treatment in the application of the requirements of Subchapter K to existing structures.

Existing structures are defined at Section 701.5 of the rules. Section 701.11(e) establishes the applicability of Subchapter K to those structures. Under Sections 780.12 and 784.12, the operation and reclamation plan portions of permit application will have to establish how the applicant will effect compliance with the applicability requirements of Section 701.11(e). Section 786.21 establishes the criteria by which the regulatory authority is to decide whether the applicant has made a sufficient demonstration that the proposed operations will be conducted++ in++ compliance++ with++ the++ appli cability requirements of Section 701.11(e). The authority, basis and purpose for these criteria are discussed in the preamble to Section 701.11(e). SECTION 786.23 Permit approval or denial actions.

Authority, purpose and basis for this Section are discussed in 43 F.R. 41726 (September 18, 1978), under Section 788.13: 700 1. Many commenters objected to the requirement in proposed Section 788.13(b)(1)(i) that all existing operations obtain new permits within eight months of the approval of a permanent regulatory program. Most commenters suggested that the regulatory authorities be given flexibility concerning when to issue new permits during the initiation of a regulatory program. Others suggested that the exception for new permits issued during the initial program found in Section 771.13 be expressly repeated in this Subsection.

Sections 506(a) and 502(d) of the Act require that the regulatory authority "grant or deny'' a permit within eight months of approval of a State program. Therefore, suggestions that regulatory authorities be allowed more than eight months to grant or deny new permits must be rejected. However, Section 506(a) of the Act also allows operators with new permits issued in the initial program to continue operating under these permits past the eight month deadline, as long as they have made application for a permanent program permit. These requirements have been implemented by Section 771.13(b) of the regulations. Reference to Section 771.13 has been added to this Section in order that there be no confusion concerning time limits for actions on permit applications. To clarify the status of applications submitted after the two month deadline set forth in Section 771.13, new language has been added in Section 786.23(b)(1)(ii). All such late applications will be handled as applications submitted during subsequent operation of the permanent regulatory program under Section 786.23(b)(2). Therefore, an operator of an ongoing mine who is late in submitting his permanent program permit application runs the risk of having to cease operations, if a new permit is not issued eight months after the approval of the permanent program. 2. Several industry commenters suggested that there be further time limits placed upon regulatory authorities for processing permit applications under proposed Section 788.13(b)(1). Under that Section, the regulatory authority was to approve or disapprove a permit application within 60 days of the informal conference, or within a reasonable time if no informal conference is held. The informal conference is to be held within a reasonable time after a request for such a conference, pursuant to final Section 786.14. This means that a permit application for which no informal conference has been requested within approximately 60 days after submission of the application to the regulatory authority (four weeks of newspaper notice publication, plus 30 days comment period), would be processed in little more than the 60-day period. An application for which a conference has been held could be processed in as little as 80 days (four weeks of notice publication, plus 30 days comment period, plus 14 days notice of conference, plus a reasonable time for a decision).

700 No specific time limit has been set in the final rules. Alternatives suggested dealt with various specific times for the processing of applications. These times ranged from 60 days to six months. However, the present regulations expressly allow each regulatory authority to set its own maximum time limit depending upon the criteria of Section 786.23(b)(2)(ii). Because of the difference of the size, duration and types of mining in different States, and even between different permits within a State, the Office has determined that flexibility for the regulatory authority should be retained in the regulations. Therefore, comments suggesting that further specific time limits be set have not been accepted. It will be in the best interest of all parties to have expeditious processing of applications, but in those certain cases which require judicious consideration of the complex data required in applications, the regulatory authority should have as much flexibility as possible concerning time of processing.

3. One commenter was concerned that if an informal conference was held and it was later determined that a pattern of violations hearing was required on an application, that under Section 786.23(b)(3) there would not be enough time for the regulatory authority to consider other aspects of the application after a decision was rendered on the "pattern of violations'' hearing. No change in the regulations was considered necessary. The regulatory authority would not be precluded from hearing and processing other aspects of the permit during the time that a "pattern of violations'' hearing was conducted. Because of the time involved in such a hearing, the regulatory authority would have more time than usual to process the permit. In addition, the present regulations state that no time limit can expire during the pendency of pattern of violation hearing under Section 786.17(d).

4. A commenter asked that the regulatory authority be required to attach a fact sheet or finding of fact to its decision granting or denying permit applications under Sections 786.23(c) and 786.23(d). As proposed, the regulations required that the regulatory authority state the reason for its decision. The commenter was concerned that such broad language would lead to decisions filled with conclusory statements which would prevent meaningful review of those provisions. It was suggested that the bases for the decision be set forth explicitly in the form of findings of fact or a "fact sheet'', and that the proposed fact sheet be modeled after the proposed Environmental Protection Agency regulations to be found at 40 CFR 124.43, which call for such fact sheets on draft NPDES permits. The commenter was also concerned that previous State regulatory practice provided inadequate explanations for decisions on permit applications.

{15103}The Office believes that Section 786.23(c) already provides an adequate level of explanation for decisions. However, the wording of the regulation has been changed to require that the regulatory authority give its "specific'' reasons for the decision. The form of the decision is not dictated by the regulations, however. Hopefully, this will strike a reasonable balance between the need for applicants and citizens to know the facts and reasons behind a regulatory decision, and the need of the regulatory authority for ease of administration. A regulatory authority should ordinarily list the specific facts and reasons behind each decision in order to limit the number of issues in any appeal.

5. Several industry commenters objected to public notice of regulatory authority decisions on permit applications. Some objected to sending the decision to anyone but the applicant and others to the publishing of a summary of the decision in a newspaper. Others objected to notification of the Office's Regional Director and local governmental units. Section 514(a) (c) of the Act however, requires that the actual decision be sent to the applicant and all parties to the informal conference. Also Section 510(a) of the Act requires that notice be sent to local governments. Since the Office would still have enforcement responsibility under permanent State programs, it would be necessary for copies of all permits issued to be on file with the Office. In addition, under Section 514(c) of the Act, any person whose interests are or may be adversely affected by a decision on a permit application (regardless of their participation in the review of the application) has the right to file for administrative review of the decision by the regulatory authority. A newspaper advertisement would be essential in order to notify the public of the decision. Without this notice, adversely affected persons would lose their last opportunity to protect their rights because Section 514(f) of the Act limits the opportunity for judicial appeal to those who participated in the formal administrative hearing reviewing the decision of the regulatory authority. Therefore, newspaper notice provisions are also retained in the final rule.

SECTION 786.25 Permit terms.

The authority, basis and purpose of this Section was explained under Section 786.11 in 43 FR 41720 (Sept. 18, 1978): 1. Several commenters suggested that proposed Section 786.11(a)(2) be revised since a specified longer term may be needed to allow the applicant to obtain necessary financing for equipment and opening an operation. Section 506(b) of the Act states that a longer term may be granted ". . . if the applicant demonstrates that a specified longer term is reasonably needed to allow the applicant to obtain necessary financing for equipment and opening of the operation . . .'' Based on this, Section 786.25 was revised in the final rule.

2. Additional commenters suggested that the need for confirming this financial need in writing was unwarranted. However, Section 506(b) of the Act provides that the applicant shall demonstrate that a longer term is needed. The Office has determined that confirmation in writing is the appropriate method to demonstrate that a longer fixed term is, in fact, needed. Therefore, this Section has been retained as proposed.

700 SECTION 786.27 Conditions of permits: General and right of entry.

The authority basis, and purpose for this Section was explained under Section 786.12 of 43 FR 41720 (September 18, 1978): 1. Several commenters contended that warrantless entries by State and Federal inspectors would contravene the Fourth Amendment to the U.S. Constitution and suggested that proposed 786.12 (b) be deleted. Based upon a review of the Act's legislative history and relevant case law, the Office has found warrantless entries by State and Federal inspectors to be lawful and proper under the Act.

(See, In Re Surface Mining Litigation, 456 F. Supp. 1301, 1317 1319 (D.D.C., 1978).) The Office has determined that warrantless entries are necessary for proper administration and enforcement of the Act, and this Section was therefore retained in the final rules.

2. Other commenters suggested that Section 786.27(b) be revised so that entry to minesites was "at reasonable times.'' Section 517(b)(3) of the Act uses the term "at reasonable times'' only when access to and copying of any records is necessary, or inspection of any monitoring equipment or method of operation is necessary. However, the Act does not state that the right of entry of authorized representatives be exercised only "at reasonable times.'' Entry at all times is needed to insure for effective compliance by on-going operations. As a result, the rule was not revised. A few commenters contended that all of paragraph (b) should be deleted, since the provisions of those Sections are stated in the Act or Subchapter L of the regulations. Since Section 786.25 deals with general conditions of permits as to right of entry and Subchapter L deals with the exercise of that right during inspections, the provisions were not deleted. However, subparagraphs (b)(1)(i) (iii) of proposed Section 786.12 were deleted from Section 786.27, since they would be merely duplicative of Parts 840 and 842.

3. Several commenters stated that there was no authority under the Act for requiring accompaniment of State inspectors by private persons. Other commenters felt that Section 786.27 was too broad, because it did not specify in what instances a private citizen could accompany an inspector. Regarding citizen accompaniment of State inspectors, the Office decided not to change the final rule for the reasons explained in the preamble to Subchapter L. Commenters objecting to the breadth of the proposed rule were, however, correct, in objecting that it was not limited to citizens who had made a complaint to the regulatory authority. Thus, Section 786.27(b)(2) was revised to state that a person may accompany an authorized representative on an inspection when the inspection is in response to an alleged violation reported to the Office by that person.

4. A few commenters contended that revisions should be made to Section 786.27(b) to assure that (1) private persons are properly attired with safety apparel upon entrance to a mine site and (2) all private persons entering a minesite would be required to waive all claims against the operator for injuries received while on the property. These suggestions were not accepted. It has been the Office policy that all inspectors be properly attired with proper safety apparel before entering a minesite. Also, private persons entering a minesite must be under the control, direction, and supervision of the authorized representative. As a result, an authorized representative would not allow a private person to enter a minesite, unless he or she was properly attired with safety apparel. As for the liability question, ordinary tort law principles can be used and some States may have specific laws or regulations with regard to liability. See also discussion of this issue in the preamble to Part 842. Therefore, no change was made in the regulations as a result of this comment. 700 SECTION 786.29 Conditions of permits: Environment, public health and safety.

The statutory authority, basis and purpose for this Section was explained under Section 786.13 at 43 FR 41721 (September 18, 1978): 1. A few commenters requested that the entire Section 786.29 be deleted as having no justification. This Section, like Sections 786.25 and 786.27 sets forth general terms and conditions to be attached to all permits as well as special conditions to be attached to certain types of permits. Subsection (a) places affirmative responsibilities on operators to report and remedy events of noncompliance. Subsection (b) places affirmative responsibilities on operators to dispose of materials produced by pollution control devices in an environmentally acceptable manner. Subsection (c) allows the regulatory authority to place special conditions on permits in order to protect the environment in situations not specifically handled in the regulations. The Office feels this Section is necessary to carry out the environmental protection purposes of the Act found in Section 102 (a) and (d), and retained it in the final rules.

2. Another commenter suggested that a new Subsection be added to allow the permittee 15 days to revise any conditions attached to a permit and comment on them. This suggestion was rejected because an addition is unnecessary. If a permittee is dissatisfied with any conditions, he or she can appeal the decision of the regulatory authority under Section 787.11.

3. Several commenters state that warning a person who may be adversely affected by noncompliance, as required by Subsection (a)(3), would be an unnecessary burden to the operator. These commenters recommended that the provision be deleted. They felt the operator should not have to worry about who may be adversely affected in noncompliance situations which quite obviously do not threaten the health or safety of the public.

This Subsection has not been deleted, however. One of the purposes of the Act is to protect society and the environment from the adverse effects of surface coal mining operations. Section 786.29(a)(3) helps assure that this provision of the Act is implemented. A few commenters also suggested that this Section be re-worded for clarification. This was done to narrow the rule so that it now states ". . . any person whose health and safety is in imminent danger due to noncompliance.'' This revision implements the wording "imminent danger to health and safety to the public'' which is defined in Section 701.5 of the regulations. 4. One commenter recommended deletion of Section 786.29(b) as unnecessary and outside the scope of the Act. It was the commenter's position that the requirements of Subsection (b) were already being administered under the Clean Water Act. The Office believes, however, that the requirements in Subsection (b) in no way supersede or modify the Clean Water Act and will help insure that the goals of both that Act and SMCRA will be met. Therefore, the regulations have not been changed.

5. Several commenters objected to Section 786.29 (c) as being vague and not required by the Act. This Subsection allows the regulatory authority to attach special permit conditions. The Office considers this authority a critical element for any rational regulatory system. The performance standards of the regulations contain dozens of provisions which establish generally applicable rules, but provide for regulatory authority approval of "alternative'' ways to comply with the performance standards. The determination of whether and to what extent an alternative should be authorized will require a specific written regulatory decision, so that the agency, operator, and public will clearly understand what specific legal requirements are being applied to the operator. Further, these specific determinations need to be reflected in the permit to be binding and enforceable, since the enforcement provisions of the Act speak of violation of permits.

This authority is also necessary since there will invariably arise situations where the proposed operations have the potential to cause adverse environmental impacts, but the solutions for these problems are not specifically given by the regulations or Section 515 of the Act. Indeed, Congress recognized this problem by requiring the issuance of cessation orders for "significant, imminent environmental harms,'' but that provision only deals with on-going operations, not prevention of such harms which can be identified during the permit process. Because the Office believes the regulations should, to the extent practical, ensure that potential problems raised by proposed operations be adequately handled in the permit phase, the authority of regulatory authorities to impose special conditions has been retained. However, in order to clarify the situations in which these special conditions may be added, the language of the regulations has been changed to specify that they may be imposed to prevent environmental harms and to ensure compliance when alternative methods of meeting the performance standards of the Act.

SUBCHAPTER G -- SURFACE COAL MINING AND RECLAMATION OPERATIONS PERMITS AND COAL EXPLORATION PROCEDURES SYSTEMS, 30 CFR PART 787 -- ADMINISTRTIVE AND JUDICIAL REVIEW OF DECISIONS BY REGULATORY AUTHORITY ON PERMIT APPLICATIONS Part 787 was Part 789 in the proposed regulations.

Authority, purpose nd basis SECTION 787.11 Administrative review.

Authority, purpose and basis for this section are discussed in 43 FR 41727, (Sept. 18, 1978). As proposed, 787.11 concerned the procedures to be followed by a regulatory authority at the adjudicatory hearing to review the decision on the approval or denial of a permit application. Sections 514(c), (d) and (e) of the Act set forth the minimum procedural requirements for adjudicatory hearings on permit actions. The proposed regulations basically repeated the language of these sections. In the preamble to the proposed regulations, the Office solicited comments on whether more specific procedural requirements should be adopted.

700 1. Some commenters pointed out differences between Federal, State and Federal lands programs, but suggested that the procedures for each program be as close as possible for consist ency's sake. Two commenters wanted to be sure that an Admininstrative Law Judge would hear appeals under Federal programs. Some commenters recommended that the following specific additional procedural requirements be included: (a) Final decisions in a hearing should include findings of fact and conclusions of law and a "fact sheet'' similar to that required under USEPA's National Pollutant Discharge Elimination System (NPDES) permit regulations; (b) Specification of a "presiding officer,'' who would have the power to administer oaths, issue subpoenas, rule on evidence, regulate the hearing, hold prehearing conferences and make recommended decisions; (c) Provide for a right to present oral or documentary evidence, and cross-examine witnesses; (d) Provide for the right of the parties to submit proposed findings of fact and conclusions of law at the end of the hearing; (e) Prohibit ex parte contacts between persons deciding hearings and parties to proceedings which include the staff of the regulatory authority; and (f) Include provisions to ensure that an informal conference under Section 786.14 is an adjudicatory hearing. 2. The Office has decided to adopt the suggestion that Section 787.11 distinguish between adjudicatory hearings for Federal, State and Federal lands programs, because of the statutory and institutional differences between the three programs.

3. Regarding State programs, the Office has decided to accept the suggestion that the regulations be modified to specify that, in addition to the procedural devices specifically enumerated in Section 514 (c) and (e) of the Act, the adjudicatory hearing must provide for right to prehearing discovery and for decision of the regulatory authority to be in the form of findings of fact and conclusions of law.

{15105}Specification of discovery rights is particularly necessary, as commenters pointed out, in preparing for the complex, site-specific technical issues involved in coal mining permit hearings. Furthermore, discovery is implicit in the specifications of Section 514(e) of the Act which allows the regulatory authority to subpoena witnesses or other evidence. Discovery merely ensures that this subpoena power can be exercised prior to the hearing in order to provide rational fact finding and assist the parties in evaluating settlement possibilities.

Findings of fact and conclusions of law are required as a matter of due process in adjudicatory hearings. Further, as commenters pointed out, judicial review (provided for in Section 514(f) of the Act) is impossible unless adjudicatory hearing decisions are accompanied by specific reasons for the decisions.

4. One commenter suggested that Section 787.11 be modified to state specifically which party has the burden of proof in the administrative hearing. The Office accepted this comment for nation-wide consistency, and Section 787.11(b)(5) was inserted to place the burden on the party seeking to reverse the decision of the regulatory authority in accordance with general principles of administrative law.

5. The Office has decided not to require that an adjudicatory hearing decision be accompanied by a "fact sheet,'' since the findings of fact and conclusions of law provision is adequate to insure that the hearing decision explains in detail the rationale of the regulatory authority. The Office has also decided not to require the State program hearings be conducted by a particular "presiding officer,'' since the States may have hearing bodies with a panel of decision makers, thereby rendering the "presiding officer'' concept irrelevant. Also, the State programs need not necessarily require the right to present oral testimony in all cases, as the constitutional guarantee of due process may be statisfied by written submission of evidence, so long as an adequate oppportunity to respond is allowed. See, e.g., 5 U.S.C. Sections 554, 556, and 557.

6. Regarding the prohibition on ex parte contacts, due process does not prohibit all ex parte contacts, such as between a presiding examiner and the head of an agency. However, ex parte contacts between representatives of parties and the decision maker of the hearing are prohibited. See e.g., 5 U.S.C. Sections 554(d), 556, and 557. Therefore, ex parte contacts between the hearing authority and any of the parties before it is prohibited. This does not preclude, of course, meetings between only the parties themselves.

7. The Office has decided not to require that informal conferences under Section 513 of the Act and Section 786.14 of the rules be governed by rules applicable to formal adjudicatory hearings, since Congress clearly intended those to be truly informal. Compare In re: Surface Mining Regulation Litigation, 456 F. Supp. 1301, 1322 (D.D.C. 1978).

8. Federal programs and the Federal lands program will, in general, be governed by procedures required by 5 U.S.C. Section 554 and rules of the Department's Office of Hearings and Appeals (43 CFR Part 4). Rules for that Office, which were promulgated recently, have reserved space for proceedings on permit matters under the Act. Accordingly, consideration of what specific provisions should be required for these matters will be made in the process of proposing and promulgating amendments to 43 CFR Part 4.

9. To ensure that the right to a 5 U.S.C. Section 554 hearing required by Section 514(c) of the Act is afforded under Federal lands programs, appeals from the initial decision of the Department to either grant or deny a permit on Federal lands will be made directly to the Department's Office of Hearings and Appeals. See Section 787.11(c). Proceedings before the Office will be governed by rules supplementing 43 CFR Part 4.

700 10. As is discussed in the preamble to Section 786.14, the Office accepted comments suggesting that the right to an adjudicatory hearing be provided with respect to decisions of regulatory authorities to approve or disapprove applications to conduct coal exploration in which more than 250 tons of coal is to be removed in any one location. This was done by cross-referencing to Section 787.11. Appropriate revisions were also made to Section 787.11 to include these appeals within its scope. Similarly, the requirements of Section 787.11 have also been made applicable, as suggested by commenters, to Section 786.17(d) hearings, Section 788.11 hearings, and to review of the decision of the regulatory authority under Sections 788.17 788.19.

11. Some commenters objected to the provision of proposed Section 789.11(c)(4). One objected that it should not be applied to existing operations, while another argued that it should be equally applicable to requests for stays of permit issuances. The Office has not modified this provision in the final rules which appears at Section 787.11(b)(2)(iv). There is no basis in the Act to distinguish between existing and new operations as to this condition on the grant of temporary relief. Either should be authorized to be conducted only upon a clear demonstration that reclamation will be feasible, which is not appropriately determined in a preliminary relief hearing, as was explained in the preamble to the proposed rules. Moreover, existing operations will not have held permanent regulatory program permits, so there will be no status quo to be restored by temporary relief. The Office also feels the provision is not inequitable. Where persons seek temporary relief to stay the approval of a permit, there is a status quo (e.g. no permit) which can be restored.

SECTION 787.12 Judicial review. The authority, basis, and purpose for this section were explained at 43 FR 41728 (September 18, 1978), under Section 789.12. The rule was modified to clarify that it also applies to Federal lands programs under authority of Section 526(a)(2) of the Act.

SUBCHAPTER G -- SURFACE COAL MINING AND RECLAMATION OPERATIONS PERMITS AND COAL EXPLORATION PROCEDURES SYSTEMS, 30 CFR PART 788 -- PERMIT REVIEWS, REVISIONS, AND RENEWALS: ANDTRANSFER, SALE AND ASSIGNMENT OF RIGHTS GRANTED UNDER PERMITS In order that all permit actions taken subsequent to the granting of a permit could be found in one location, to condense the size of the regulations, and to minimize cross-referencing, proposed Parts 790, 791 and 792 have been combined into one new Part 788. Because of this combination, editorial changes have been made in Sections 788.1 and 788.2.

SECTION 788.1 Scope.

Authority, basis and purpose are discussed in 43 Fed. Reg.

41728 (Sept. 18, 1978), under Parts 790, 791, and 792.

SECTION 788.2 Objectives.

Authority, basis and purpose are discussed in 43 Fed. Reg.

41728 (Sept. 18, 1978), under Parts 790, 791, and 792.

SECTION 788.3 Responsibilities.

Authority for this section is found in sections 102, 201(c), 501(b), 503(a), 504, 506, 507, 508, 509, 510, 511, 513, 514, 515, 516, 517, and 701 of the Act. Because of the combination of three parts into new Part 788, a new Section 788.3 has been added which sets forth, first, the responsibilities of regulatory authorities in taking permit actions subsequent to the granting of the original permit under regulatory programs. This section also specifies the responsibilities of persons conducting surface coal mining and reclamation operations with respect to changes, modifications, renewals, and revisions of permits after they are originally granted, and of persons who attempt to succeed to rights granted under permits by transfer, sale, or assignment of rights. This section has been added as an aid to users of the regulations and does not establish any responsibilities which were not included in proposed Part 790, 791, or 792.

SECTION 788.5 Definitions.

Authority for this section is sections 102, 201(c), 501(b), 503, 504, 506, 507, 508(a), 509, 510, 511(b), 515, 516, 517, and 519 of the Act.

In response to a comment directed to proposed section 792.12(a) (788.18(a) in the final rules), the office has added definitions for the terms "successor in interest'' and "transfer, assignment, or sales of rights.'' The commenter was concerned that actual transfers of effective control would not necessarily be subject to prior regulatory authority review and approval, if these terms were not specifically defined. As defined, these terms will include any change in ownership or in the person actually exercising the rights to mine. For example, these terms would include all subcontractors who actually perform the mining who were not listed in the original application pursuant to Sections 788.13(a)(5), 783.13(a)(5) and 778.14, 783.14. This is necessary so that the regulatory authority can determine the suitability of the person actually conducting the surface coal mining and reclamation operations involved under the substantive criteria of 788.17 788.18.

The definition of successor-in-interest is provided to insure for consistency with use of the term "transfer sale, or assignement of rights'' within the same or similar context in those sections. The definition of "transfer, sale or assignment of rights'' is based on the common understanding of those terms to include any effective shift in control over rights, in addition to technical changes in ownership.

See Black's Law Dictionary at 153, 1669 (1957 ed.).

SECTION 788.11 Regulatory authority review of outstanding permits.

Authority, purpose, and basis for this section are discussed in 43 Fed. Reg. 41728 (Sept. 18, 1978) under section 790.11.

1. Under Section 511 (c) of the Act, the regulatory authority is to review each permit at least once during its term. Following this review, the regulatory authority is authorized to revise or modify the permit, to assure compliance by the permittee with the Act. Similar, but particularized review, revision, and modification power is provided to the regulatory authority for certain special categories of mining by Section 515(b)(16), 515(c) and 515(e) of the Act. Section 788.11 is proposed to generally implement these requirements, along with similar provisions for the special categories of mining at Section 785.13, 785.16 and 785.18 of this Subchapter. 2. Several commenters suggested that this section be modified to allow the regulatory authority to revoke a permit through the review process. These comments were rejected. Section 511(c) of the Act allows the regulatory authority to require "Reasonable revision or modification of the permit provisions,'' during the review process. Sufficient mechanism is provided in other sections of the regulations for the revocation of a permit (See Subchapter L).

3. Many commenters suggested that modifications be made to this section to allow citizens to petition the regulatory authority to conduct reviews of existing permits. The regulatory authority has plenary power under the Act and regulations to deal with the overall plans and operations during review of the permit application, the mid-term review, and the renewal process. In addition, it can order cessation of an operation at any time for any imminent harms or hazards created by the operation. (See Subchapter L). Therefore, the right to petition for review was considered unnecessary to protect citizen's rights. Concerned citizens can also file citizen's complaints and participate in the review and renewal process.

4. A commenter requested that public notice and opportunity to submit comments be added to this section. The Office rejected this suggestion. If citizens believe that an operation is in violation of the Act or regulations, or is creating danger to the public or the environment, they can file complaints with the regulatory authority or OSM under Subchapter L. In investigating the complaint, the regulatory authority will necessarily review the past performance of the operation. Moreover, during the periodic review, the regulatory authority will have to consider complaints which have been filed against the operations.

5. A commenter objected to the office setting times for permit reviews as per proposed Section 788.11(a), citing Section 511(c) of the Act as leaving this issue entirely to the regulatory authority. The commenter suggested modification of this section to delete references to Sections 785.15, 785.16, and 785.18, and to delete the requirement that all permits be reviewed not later than the middle of the permit term, except those permits governed by Section 785.13.

This comment was rejected. Section 788.11(a) is within the authority granted the Secretary, acting through the office, pursuant to Sections 102, 201, 501(b) and 503(a) of the Act, to establish guidelines for the State programs.

6. Some commenters suggested that where permits are issued for terms of longer than five years under Section 786.25(a), regulatory authority review of the permit should occur more frequently than once in the term of the permit. The Office agreed with that suggestion. Where permits extend beyond 5 year terms, mining and reclamation technology advances should be considered for application on recurring intervals. Moreover, care is needed to insure that the predictions of successful reclamation accepted when the original permit was issued remain valid. Therefore, the final rule was revised to require that long-term permits be reviewed at least once each 5 years, the ordinary length of a permit term.

7. Some commenters questioned the criteria for notice and opportunity for hearing or orders of the regulatory authority requiring modification or revisions to permits following review. This matter was clarified by cross-referencing Section 788.11 in the final rules to 30 CFR 787, which provides detailed hearing criteria. SECTION 788.12 Permit revisions.

Authority, purpose, and basis for this section are discussed in 43 Fed. Reg. 41728 (Sept. 18. 1978), under Section 790.12.

1. Under Section 511(a) of the Act, a permittee may apply for a permit revision during the term of its permit, by filing an application together with a revised reclamation plan. Under Section 511(a)(2) of the Act, however, those revisions are not to be used to extend the area of operation beyond the original permit area, except for incidental boundary revisions. Section 788.12 implements those provisions of the Act.

2. A commenter suggested that Section 788.12(b)(1) be modified to require a permit revision only for "substantial'' changes in the methods of coal mining or reclamation operations. The commenter recommended that this be when these changes would constitute a significant departure from the methods of mining and reclamation contemplated by the original permit. The commenter reasoned that mining and reclamation plans would always be fluid to some extent, and that changes in the methods of operations or reclamation which were consistent with the basic plans approved in the permit application should not require a permit revision.

The Office agreed and, accordingly, Section 788.12(b)(1) was modified in the final rules. Additional language was also incorporated to ensure that each regulatory authority will provide parameters in their regulations to determine what changes in the methods of operations or reclamation constitute a significant departure from those approved in the original permit and, therefore, necessitate a revision.

{15107}3. A commenter requested that Section 788.12(c)(2) be revised to include a definition of the term "significant alteration,'' and to exempt operators from complying with the requirements contained in Section 788.12(c)(2) for a permit revision required by an order issued under 30 CFR 788.11. The commenter's rationale for these requests was as follows: (a) Certain changes in the mine operations might be "significant,'' but would have no effect on public safety or the environment that had not already been reviewed by the regulatory authority.

(b) Mine operators should not be subject to the notice and hearing requirements of Parts 786 and 787 when the permit revision is required by the regulatory authority under Section 788.11, particularly when the contents of the applications for a revised permit may be specified by the regulatory authority.

(c) The revision order itself may have followed public participation through petition, hearings, or complaints.

The basic request of this commenter was rejected for the following reasons: First, the wording of Section 788.12(c)(2) closely tracks that of the Act in Section 511(a)(2) under "Revision of Permits.'' Section 511(c) of the Act requires that revision or modification of a permit required by the regulatory authority (based on written findings) be subject to notice and hearing requirements established by the State or Federal program. Thus, the operator cannot be exempted from the requirements of Parts 786 and 787.

While the comment was rejected, the rationale supporting the comment indicated that modification of Section 788.11 needed further consideration. Under Section 788.11(c), the regulatory authority may, by order, "require reasonable revisions or modifications of the permit provisions . . . ,'' subject to notice and hearing requirements. In effect, the regulatory authority could have subjected an operator to these potentially expensive and time consuming requirements with no avenue of appeal regarding the "reasonableness'' of the ordered revisions being open to the operator. Accordingly, the regulations were revised to provide the operator with a procedure whereby any order issued by the regulatory authority under this section would be subject to a hearing process. The necessary language to provide this process is incorporated in Section 788.12(c)(2).

4. A commenter suggested a complete rewording of paragraph (c) of the proposed rule to use only the language of the last sentence of Section 511(a)(2) of the Act. The Office rejected this for the following reasons: (a) The commenter argued that proposed Section 788.12(c) was unauthorized under the Act. However, Congress did not limit OSM to merely repeating the language of the Act.

See Sections 102(a) and 503(a) of the Act. The provisions of 788.12(c) are authorized under Sections 102 (a) (d), (k), (m), 501(b), 503(a), 506 508, 510, and 511, to ensure that applications for revisions of permits contain sufficient information and are subject to public participation, so that revised operations are first proven to provide for feasible reclamation. Further, OSM is not prohibited from providing guidelines for State programs, as Sections 501(b) and 503(a) of the Act clearly contemplate that OSM would adopt such regulations. Indeed, these regulations are necessary to ensure that the States generally provide even-handed treatment among operations on revision requests and that the States require sufficient information in revision applications.

(b) The commenter also asserted that OSM may not require applications for revisions to extend beyond changes in the reclamation plan. This is without merit. First, Section 511(a)(1) of the Act authorizes requiring applications for a revision of the permit, together with a revised reclamation plan to be filed with the regulatory authority. Second, Section 511(a)(2) author izes the establishment of guidelines as to "all permit application information requirements and proce dures. . . .'' Third, Section 510 (a) and (b) prohibit issuances of revisions of permits, unless supported by a complete application. Thus, the Act clearly requires that regulations under the Act ensure that all relevant aspects of the permit application be appropriately revised prior to approval by the regulatory authority of a revised permit.

5. A commenter suggested deletion of paragraph (e) of the proposed rule, on the basis that the material covered there was also included in Section 788.12(a) and was, therefore, redundant. This comment was rejected. Paragraph (e) was not clearly included in the provisions of proposed paragraph (a); further, this section is grounded directly in Section 511(a)(3) of the Act and should, therefore, be clearly stated in the regulations.

700 6. Some editorial changes were made to eliminate redundancy and ambiguity. Paragraphs (a) and (b) of the proposed rule covered essentially the same material; that is, when a revision should be obtained. They were combined into one paragraph in the final rule. Section 790.12(b)(4) referred to "State'' programs only in the proposed rule. However, proposed Section 790.1 indicated that all sections of 790 applied to both State and Federal programs (e.g. "regulatory programs''). An appropriate change was made to the final rule. Paragraph (c) of the proposed rule did not specify that the permit application was to be "complete.'' As discussed in the preamble to 30 CFR 786.11, the Office accepted comments suggesting that the permit rules be generally revised to specify that time limits for application reviews and public participation run only from the submission of "complete'' applications to the regulatory authority. Because permit revisions will also be subject to time constraints and public participation in the review of applications, Section 788.12 was modified in a manner similar to 786.11.

SECTION 788.13 Permit renewals: general requirements.

Authority, purpose and basis for this section are discussed in 43 Fed. Reg. 41728 (Sept. 18, 1978). under Section 791.11.

1. Section 788.13 has been changed from its proposed form in Section 791.11, in order to accommodate the change in organization of Parts 790, 791, and 792, and to clarify procedures relating to permit renewals which seek to extend the boundaries of the original permit. Under paragraph (a) of the final rule, permit renewals are only available for those portions of the mine plan area which were approved as being within the boundaries of the initial permit area when the permit was first issued by the regulatory authority. This clarifies the confusion expressed by many commenters as to the relationship between and differing effects of the forms "permit area'' and "mine plan area.'' It also reflects Congressional intention that permit renewals not be used by the operator to avoid making the detailed demonstration to the regulatory authority that proposed operations will be conducted to comply with the Act and regulatory program provisions wherever those operations are conducted or located.

See H.R. Rept. No. 95 218, 95th Cong., 1st Sess. at 92 (1977).

2. Paragraph (b) of the final rules provides standards for disposition of portions of applications that cover parts of the mine plan area that were not within the permit area approved under the permit for which renewal is being sought. These are to be treated as application for new permits under Section 788.14(b)(2).

SECTION 788.14 Application for renewals.

Authority, basis and purpose of this section are found at 43 Fed. Reg. 41728 (September 18, 1978), under section 791.12.

1. Several commenters objected to the public participation provisions found in Section 788.14 for the permit renewal process. Section 506(d) of the Act states that renewals of permits are subject to the public notice requirements of sections 513 and 514 of the Act. These sections of the Act are implemented by Sections 786.11, 786.12, 786.13 and 786.14 of the final regulations. However, the proposed rule made reference only to the requirement for newspaper notice, and not to opportunities for objections, comments, and informal conferences on the application.

Some commenters thought that the newspaper advertisement of permit application requirement should be deleted as unreasonable, while others thought that the public notice requirements were meaningless, without inclusion of the rights to public participation set forth in Sections 513 and 514 of the Act. It was obviously the intent of the Act to encourage public participation throughout the permit process. (See Section 102(i) of the Act). Section 506(d) of the Act contemplates public participation at some type of proceeding, by stating that the burden of proof shall be on the opponents of renewal of permits.

Given that Section 514 of the Act concerns public notice of regulatory decisions after informal conference, and with adjudicatory hearings thereafter, it was decided that Sections 786.11, 786.12, 786.13 and 786.14 should apply to the renewal process. Therefore, the final rule has been changed to require compliance with all these sections. This will give citizens the right to file objections and requests for informal conferences concerning permit renewals. The wording of the section has also been changed to make it clear that the right to administrative and judicial review exists for decisions on permit renewals, which will protect both the permittee and the public.

2. A commenter suggested stipulating that proof of publication of the newspaper advertisement of the permit application should not be a factor in determining the completeness of an application for permit renewal. As discussed above, it has been determined that full public notice and participation requirements will apply to permit renewal actions. The submission of proof of publication to the regulatory authority is necessary, in order to demonstrate that the required notice has been given.

3. Also suggested was an addition to this section allowing an operation to continue under the terms of the old permit, should the application for renewal be contested beyond the term of the old permit. This suggestion was rejected. Section 771.21(b)(2) of the regulations requires that applications for renewal be submitted at least 120 days prior to expiration of the permit involved, which should be ample time in which to process renewal applications. Section 506(d) of the Act and 30 CFR 788.16 state that an operation shall have the right of successive renewal, unless the regulatory authority makes certain findings. If these findings are not made, the permittee could con tinue mining past the term of the original permit, even if the decision of the regulatory authority was contested by opponents of renewal. However, if the regulatory authority found that the permit should not be renewed, and the original term of the permit expired during an appeal, the operator should not be able to continue to operate under the Act. See Sections 102, and 510(b) of the Act.

4. A few commenters suggested that the permit renewal applications be required to be "complete.'' As discussed in the preamble to Section 786.11 of the regulations, the Office has decided to require complete application for permit renewals, so the comments were accepted.

SECTION 788.15 Terms of renewals.

1. Authority, purpose and basis of this section are discussed in 43 Fed. Reg.

41728 (Sept. 18, 1978), under Section 791.13. Under Section 506(d)(3) of the Act, renewals are not to be granted for a term in excess of that authorized by the Act for the original permit. Section 506(b) of the Act and 30 CFR 786.25 provide for maximum permit terms. Section 788.15 implements those provisions for permit renewals.

I112. Several commenters objected to the proposed rule, on the grounds that it limited permit renewals to a maximum period of 5 years. Proposed section 786.11, however, did not limit permits to a 5-year maximum term; under certain specified conditions a longer fixed term permit may be granted. See 30 CFR 786.25(a). Further, Section 506(d)(3) of the Act specifically states that the renewal shall not exceed the term of the original permit. The comments were, therefore, accepted. Section 788.15 was modified to track the language of the Act.

SECTION 788.16 Approval or denial of renewals.

Authority, purpose and basis for this section are discussed in 43 Fed. Reg.41728 (Sept. 18, 1978), under Section 791.14.

1. The criteria for determining whether an application for renewal of a permit should be granted are provided for in Section 506(d)(1) of the Act, together with provision for establishing the burden of proof in that determination. Section 788.16 implements those provisions of the Act. 2. Several commenters suggested that the regulatory authority be required to approve or deny a permit application within a specified period of time. These comments were rejected. Section 510 of the Act clearly states that "the regulatory authority shall grant, require modification of, or deny the application for a permit in a reasonable time set by the regulatory authority . . .'' (emphasis added). The legislative history suggests that the intent of Congress was not for the Office to fix a specific time for action by the regulatory authority, but to allow State regulatory authorities to determine specific decision times at their own discretion.

SECTION 788.17 Transfer, sale or assignment of rights granted under permit: General requirements.

Authority, purpose and basis for this section are discussed in 43 Fed. Reg. 41728 et seq. (Sept. 18, 1978), under Part 792.

1. Section 788.17 sets forth the requirement for written regulatory authority approval prior to any transfer, assignment, or sale of permit rights. Section 788.18 contains the procedures for obtaining such approval, and Section 788.19 establishes under what circumstances a successor-in-interest will be required to get a new permit. Subsections (b)(1) and (2) of proposed Section 792.11 and (2) have been deleted in the final rule as duplicative of revised Section 788.18 and new Section 788.19 which is discussed below.

2. A commenter contended that the concept of "prior written approval'' regarding transfer, sale, or assignment of permit rights was beyond the authority of the Act. The suggestion was rejected. Sections 102, 201(c)(2), 501(b), 503(a), 504, 506, 510, and 511(b) of the Act provide adequate authority for the regulations concerned and the concept of prior written approval. See the discussion at 43 Fed. Reg.

41728 41729 (Sept. 18, 1978). 3. A few commenters contended that revision of permits should not be required where only the transfer of ownership from one entity to another is involved. These comments were accepted. As discussed in the preamble to the proposed rule, the Office felt that revision of permits and the need to apply for a new permit need not occur on every transfer of ownership, so long as the successor agrees to operate by all the terms and conditions of the original permittee. Should the successor change or attempt to change the method of mining or reclamation operations or the terms or conditions of the permit, an application for a new or revised permit would be required. Authority for this is provided by Sections 102, 506, and 511 of the Act. These comments have been further addressed by the addition of Section 788.19.

SECTION 788.18 Obtaining approval for transfer, assignment or sale of rights.

Authority, purpose and basis for this section are discussed in 43 Fed. Reg. 41729 (Sept. 18, 1978), under Section 792.12.

1. A commenter suggested that the proposed Section 792.12(a)(1) (now included as Section 788.18(a)(1)) be revised to allow that, in the event of a permit transfer, the new permittee should be required to post a new bond, at which time the bond of the original permittee should be released. In support, it was said that it would be very unlikely for a surety company to consent to the transfer of its bond to a new permittee. This suggestion was rejected, as it was determined that such a release of the original permittee's bond would not always be desirable, if complete reclamation has not occurred or the successor is unwilling to assume all reclamation responsibilities of the original permittee.

Section 506(b) of the Act requires a successor-in-interest to "obtain the bond coverage of the original permittee.'' It was, therefore, decided in light of the foregoing comment, to clarify the regulations to show that the intent was for the successor to obtain equivalent bond protection. In obtaining equivalent coverage, the successor would have several options, including that of obtaining the bond coverage of the original permittee. Accordingly, the proposed regulations were revised by adding subsections 788.18(a)(1)(i) (iv) to the final rules.

2. A commenter suggested that the provisions of this section be expanded to cover the possibility that a permit could be effectively transferred by outright purchase of the permit holder, or by some other method of gaining effective control of the permit holder. As Section 511(b) of the Act specifically prohibits the transfer, assignment, or sale of rights granted under a permit without the written consent of the regulatory authority, the regulations were revised. Definitions of terms "succesor-in-interest,'' and "transfer, assignment, or sale of rights,'' have been included in new Section 788.5 and are discussed in the preamble to that section.

I113. Several comments were received objecting to the contents of the application for approval required under the proposed rule. Commenters contended that a potential succesor-in-interest to the rights granted under a permit should only have to agree to abide by the terms of the original permit and show adequate financial responsibility. One asserted that an assignee of a coal property which is covered by a permit should not be subjected to a detailed permitting process, as long as the assignee is prepared to furnish the required bond. Some commenters requested that the requirements for information in Section 788.18(a)(2)(iii) be deleted, as this information would have been supplied by the original permittee.

These suggestions were all rejected, because the permit application requirements of Sections 102, 507, and 510 of the Act specifically require the applicant to provide a variety of specific and detailed information to the regulatory authority, on the nature of the person conducting operations. Approval of a permit application depends on more than the financial stability of the applicant, e.g. information regarding the past performance and character of the operator is required by Section 510(c) of the Act. The clear intent of those sections of the Act is to provide the regulatory authority with sufficient information to accurately assess both the applicant and the proposed field operations prior to issuing a permit. Thus, a successor-in-interest to a permittee should be subjected to the appropriate permit application requirements of the regulatory authority.

4. Several commenters objected to the requirement in subsection 788.18(b) that a transferee of a permit place a new newspaper advertisement notifying the public of his application for approval of the transfer. In determining whether to grant an application for approval of transfer, it is necessary that the regulatory authority conduct an evaluation of the prospective successor-in-interest to ascertain whether he or she will have the legal and financial capabilities required by the Act to carry out the plan, as well as his or her past history as an operator. An integral part of this process is the solicitation of comments from the public on the plan and the operator since public comments will help in determining an operator's past history of compliance with the Act. ( See Sections 102(i), 513, and 514 of the Act.) For these reasons, the public notice requirement has been retained in the final rule.

5. Several commenters suggested modifying the proposed rule, to limit the right to submit written comments to any person whose interests are or may be adversely affected by a decision of the regulatory authority. This suggestion was adopted, to align section 788.18 with the wording of Section 513(b) of the Act.

SECTION 788.19 Requirements for new permits for persons succeeding to rights granted under a permit.

1. Authority for this section is 102, 201(c), 501(b), 503, 504, 506, 507, 508, 509, 510, 511, 513, 514, 515, 517, 519 and 522(e) of the Act. Under 506(b) of the Act, persons succeeding to rights under an existing permit must file an application within 30 days of that succession for a new permit. Section 788.19 implements that section as interpreted by the Office, by requiring persons seeking approval under Sections 788.17 and 788.18 to obtain a new or revised permit from the regulatory authority, if the operations are to be changed from those contemplated under the original permit or extended outside the original permit area. See 43 Fed. Reg.

41728 41729 (Sept. 18, 1978).

2. A commenter suggested revising proposed Section 792.11(b)(1) (now included in Section 788.19) to delete the references to Sections 792.12(c)(2), and 771.19(b)(3), and insert a time requirement of 30 days to apply for a new permit. This request was based on the commenter's interpretation that 506(b) of the Act explicitly requires a successor-in-interest to a permittee to obtain bond coverage for the area and file an application for a new permit within 30 days.

The Office does not agree that 506(b) of the Act requires every successor-in-interest to obtain a new permit. As stated in the preamble for 788.17, a new permit is required only if the successor wishes to either change the method of operation from that contemplated under the original permit, or to expand the operations to areas outside those authorized by the original permit.

SUBCHAPTER J -- BOND AND INSURANCE REQUIREMENTS FOR SURFACE COAL MINING AND RECLAMATION OPERATIONS

This Subchapter establishes the minimum requirements for the Secretary's approval of that portion of a regulatory program governing performance bonds and liability insurance in accordance with Sections 102, 201, 501, 503, 504, 507(f), 509, 510, 519 and 701(17) of the Act. These include requirements governing the amount of liability under a performance bond, adjustments in the amount of liability, the duration, form, terms and conditions of the bond, procedures and criteria for the release of bond liability under a permit, and criteria for forfeiture of the bond.

SUBCHAPTER J -- BOND AND INSURANCE REQUIREMENTS FOR SURFACE COAL MINING AND RECLAMATION OPERATIONS, 30 CFR PART 800 -- GENERAL REQUIREMENTS FOR BONDING OF SURFACE COAL MINING AND RECLAMATION OPERATIONS UNDER REGULATORY PROGRAMS Part 800 establishes general requirements for bonding and liability insurance imposed on permit applicants as conditions precedent to the issuance by the Regulatory Authority of new, revised, or renewed permits to conduct surface coal mining and reclamation operations.

SECTION 800.5 Definitions.

1. Section 800.5 includes nineteen definitions. These definitions should aid in the interpretation and clarification of bonding requirements. The definition of a collateral bond has been changed to include the irrevocable letter of credit concept. Although a "letter of credit'' as defined by the Uniform Commercial Code does not fall within the traditional concept of collateral, it was added here in response to a commenter's request because it was determined that an irrevocable letter of credit would offer the regulatory authority a financial commitment as secure as the bank which issued the letter. Such a commitment would, in some cases, be more secure than that offered by a surety company, depending upon the relative State requirements regulating surety company and banking practices. In order to assure at least the same minimum degree of security, the tests established for determining the maximum surety commitment of a surety company (Sections 806.12(e)(2) and (3)) also are applicable to banks granting letters of credit (Section 806.12(g)). Although a State regulatory authority may accept letters of credit along with surety bonds and traditional collateral bonds (Section 806.11(a)), nothing in this Subchapter is intended to prohibit a State from establishing more stringent criteria for the acceptance of either a surety bond, traditional collateral bond or letter of credit in addition to those set out in Section 806.12. SECTION 800.11 Requirement to file a bond.

1. Section 800.11(a) is intended to make it clear that a permittee is required to file a performance bond which complies with this Subchapter prior to issuance of a permit for surface coal mining and reclamation operations on lands within an approved permit area. A few commenters recommended deleting the requirement to file the bond only after the application is approved. These comments were not accepted because a different approach would be inconsistent with the intent of Congress as set out in Section 509(a) of the Act, and because the amount of the bond cannot be determined until the proposed mining and reclamation plan has been approved by the regulatory authority. The regulations require the applicant to estimate the cost of reclamation (Section 805.11(a)(1)), but it is likely that the final bond amount set by the regulatory authority in many cases will be different.

Unless it has been done sooner, the regulatory authority shall notify the applicant of the amount of performance bond liability required for the entire permit area (to be determined in accordance with Part 805) when notice of permit approval is given. If an approval initially given by the regulatory authority is stayed by a hearing authority during the pendency of any appeal proceeding resulting from the approval, then the amount of required performance bond liability will be redetermined, if an approval is given after completion of the hearing. Such redetermination should be made in order to consider any changes in the mining or reclamation operations made as a result of the proceeding, and to account for any changes in reclamation costs caused by the delay.

Congress did not require that the amount of performance bond liability applicable to a permit be subject to review or an adjudicatory proceeding. Therefore, the Office does not require or provide for either administrative or judicial review of such a decision. The Office believes this is not inconsistent with due process because the regulatory authority has no discretion to reject a bond and withhold a permit if the required amount of performance bond liability is filed in accordance with this Subchapter and the regulatory program. Furthermore, the amount set is intended to assure completion of necessary work by the regulatory authority which must be satisfied that adequate resources are available to carry out its responsibilities. Given these factors, the Office believes that Congress intended to allow such a decision to be made by the sole discretion of the regulatory authority. Where the regulatory authority is a State under a State program, such decisions will be subject to oversight review by the Office. This review should be adequate to assure the effective implementation of Subchapter J.

2. Many comments were received regarding Section 800.11(b). A few commenters objected to the one-year incremental bonding system since it did not provide any flexibility for the regulatory authority to alter this time period. These comments were accepted and the one-year increment deleted in favor of no specific time period. This change was made, because the Act does not specify a one-year increment interval and flexibility is considered desirable in order to accommodate variations in mining practices.

3. A few commenters requested revisions regarding clarification of the scope of liability for a bond filed under the incremental system. In response, Section 800.11(b) has been rewritten to clarify requirements for filing a bond. As rewritten, the applicant may elect to file a performance bond for the entire permit area or choose to increment the bonding within the permit area. If the applicant chooses to increment the bond, the sequence of areas within the permit area for which bond liability will be added during the term of the permit, must be specified by the applicant and approved as part of the permit application. The total bond amount for the entire permit area also must be determined, and a schedule of incremental additions to bond liability must be approved prior to permit issuance. This alternative differs from that proposed in that it allows greater flexibility to the applicant and the regulatory authority in fitting the bonding and sequence of mining and reclamation operations to the actual conditions at the site rather than into rigid one-year increments.

700 Liability under bonds filed incrementally under an approved schedule, shall extend to the entire permit area and shall not be limited with respect to either surface area or reclamation work to be performed within a permit area. Legal authority for this requirement is found in Sections 509(a) and 701(A) of the Act.

The principle underlying this approach is the practical need to address the reclamation of a mined site as an integrated activity which can achieve success only if all the various phases of reclamation are planned and implemented with a view toward the entire mined area. To be avoided is a situation where the bond has been incremented and partial liability for the first area mined under the permit has been released, then a water pollution or other unanticipated problem is found in the area where the bond has been partially released. The remaining liability under the bond filed for that incremental area is inadequate to cover the work required to correct the problem, and liability under bonds filed for later increments is not applicable to the first area. It is intended that any bond liability filed under a permit extend to all reclamation, restoration or abatement work needed anywhere in the permit area to achieve the reclamation and environmental protection goals of the Act, regulations, and regulatory program. This principle will also apply to renewed permits where additional acreages to be mined are approved in second or successive terms of the original permit. As the permit area expands with the approval of successive permit terms, the liability under a bond applicable to that permit will extend to the newly approved additions to the permit area.

{15111}This does not mean that the dollar amount of liability under a specific performance bond will change. The amount of liability under a given instrument will not change without the consent of the parties to the instrument. As mining advances, new areas are disturbed, and old areas successfully reclaimed, the total dollar liability of performance bonds under a permit will change. As the dollar liability changes, existing instruments creating the bond liability may be modified, supplemented by additional instruments, or replaced by new instruments at the option of the permittee with the approval of the regulatory authority. However, all bond liability in effect under a permit must apply to the entire area under the permit and extend to all reclamation, restoration or abatement work which may need to be performed by the regulatory authority at that operation.

SUBCHAPTER J -- BOND AND INSURANCE REQUIREMENTS FOR SURFACE COAL MINING AND RECLAMATION OPERATIONS, 30 CFR PART 805 -- AMOUNT AND DURATION OF PERFORMANCE BOND Part 805 prescribes the criteria that the regulatory authority shall use to determine the amount of performance bond applicable to a permit for a surface coal mining and reclamation operation. This Part also prescribes the minimum amount of each bond, periods of liability, and the requirement that the regulatory authority adjust the bond amount if the costs of reclamation are determined to have substantially changed during the term of the permit. The authority for this Part is found in Sections 102, 201, 501, 503, 504 and 509 of the Act.

SECTION 805.11 Determination of bond amount.

1. Section 805.11 provides standards the regulatory authority must use to determine the appropriate amount of the performance bond for each surface coal mining and reclamation operation. This Section is intended to clarify that the amount of such bond must be based on the estimated cost to the regulatory authority of completing all work at an operation in order to bring the site into full compliance with the Act, and not on the estimated cost to the permittee, since in the event of forfeiture, the regulatory authority will be required to do the work.

2. Revision of the proposed final regulations included combining the initial two paragraphs (a and b) of Section 805.11 for simplication. Also, the phrase "reclamation, restoration, and abatement work required of a person who conducts surface coal mining and reclamation operations under the Act, this Chapter, the regulatory program, and the permit'' was chosen as an editorial revision to more clearly express the intent of the Office regarding the scope of activities subject to the bond liability. This phrase, or portions thereof, are repeated throughout the Subchapter. It is the intent of the Office that the initial bond amount, the amount retained after partial releases (Section 807.12(d)) and amounts forfeited (Section 808.14) be adequate to not only allow the regulatory authority to complete the backfilling, grading, topsoiling, and revegetation program contained in the approved reclamation plan, but also to restore any property damaged outside the permit area in violation of the permit and Section 515(b) (2), (4), (8), (9), (10), (12), (13), (15), (17), (18), (21), (24), and (f) of the Act. In addition, the amount must be adequate to abate any pollution or hazards to life or property which exist within or outside the permit area in violation of the requirements of Sections 515, 516, 517 of the Act and Subchapter K, or of Section 521 of the Act and Subchapter L of the regulations, or the permit and are causally related to the permitted operation. The Office recognizes that the regulatory authority cannot reasonably establish the initial bond amount based upon speculative events such as the need to abate ground water pollution, since the operation must be designed initially to prevent such consequences in order to qualify for a permit. However, such unplanned consequences occasionally occur due to improper mining or reclamation, or because an important variable was not evaluated properly. When such consequences are identified prior to the release of all liability and termination of the permit in accordance with Part 807, the permittee's legal obligation to abate them necessarily adds to the cost of reclamation.

Under such circumstances, the regulatory authority would be authorized to impose additional bond liability under that permit, or to retain a larger portion of the total liability than otherwise required in response to an application for release of bond, in order to ensure adequate funding to complete the abatement work required (Sections 805.14(a) and 807.12(d)).

3. Several commenters recommended that the bond amount should be sufficient to ensure an operator's compliance, but that it should be below the regulatory authority's completion cost. Section 509(a) of the Act specifically states that the amount of the bond shall be based on the regulatory authority's costs and not those of the operators. These comments were, therefore, not accepted.

Several commenters pointed out that vague wording existed in the proposed regulations when using the phrase, "estimated actual costs to the regulatory authority . . .''. A conflict existed between the words "estimated'' and "actual''. To clarify, the language was changed to read, "the estimated cost to the regulatory authority . . .''.

700 4. A few commenters requested a definition of the bond penalty. The bond penalty is construed to mean the total liability under performance bond(s) applicable to a permit as set by the regulatory authority. The surety will always know the terms and conditions of the bond obligation before entering into a bond agreement because the amount is set prior to bond execution. Both Section 509(a) of the Act and Section 800.11 of the regulations require that the bond be conditioned upon faithful performance of all the requirements of the Act and the permit. Based upon this requirement, the bond may be viewed as a form of "penalty'' and may be forfeited in the event the permittee fails to comply with any requirement of the Act or the permit. However, forfeiture is discretionary to the extent that it is not required by Part 808, and should be used as an enforcement tool only in serious situations. Based on this rationale, the comments were not accepted.

5. Several comments were received regarding the use of the words, "shall be based on . . . '', in context with the regulatory authority's criteria. They felt that the words should be changed to "may be'' to allow more flexibility for the regulatory authority to determine bond amount. These comments were not accepted because it was determined that sufficient flexibility exists within the individual criteria to be considered. Deleting consideration of any criteria would preclude a decision by the regulatory authority which would be inconsistent with all the factors required by Section 509(a) of the Act.

6. Section 805.11(a) also contains a non-exclusive list of criteria the regulatory authority must use in making its determination as to bond amount. First, the regulatory authority will use the estimated costs that the permittee submitted with the reclamation plan as required under 30 CFR 780.18 and 784.13. This change was made in response to several comments which pointed out that data provided by the applicant would assist the regulatory authority in determining bond amount. This is consistent with Section 509(a) of the Act which states that the "amount of bond required for each bonded area shall depend upon the reclamation requirements of the approved permit''.

Several comments suggested adding a new subparagraph to consider the specific factors of topography, geology, hydrology and revegetation potential since they appearirements or the need to bring additional personnel or equipment to the permit area.

{15112}8. In response to a few commenter's request, Section 805.11(a)(4) was added to provide for consideration of cost changes which may occur on the basis of changes during the preceding 5-year period. Failure to consider such changes would result in a bond which may not be adequate to complete essential reclamation activities because the period of liability is for 5-years after the completion of revegetation work, at a minimum.

Note that in this Section cost "changes'' are considered, which reflects a language change from the proposed regulations. The original language stated that only cost increases would be considered. The change was made in response to a few comments which pointed out that while cost increases may occur, the possibility exists for costs to decrease in the future as a result of improved technology or changes in the economic structure. In considering either prospective increases or decreases in costs, the regulatory authority must identify a five-year pattern of change as the basis for making future projections. Speculative changes not based on patterns of actual experience observed in the industry should not be used to project future change.

9. Section 805.11(a)(5) allows the regulatory authority to utilize other data that would be of assistance in determining the bond amounts. The regulatory authority can require an applicant to produce the data necessary for proper determination of bond amounts. This change was made in response to a commenter who suggested that the regulatory authority should have the authority to require additional information if it was available.

The Paragraph pertaining to specific criteria for determining bond amounts for underground mine operations, as it appeared in the proposed final regulations under Section 805.11(b)(2), has been deleted from the final regulations.

10. Many comments were received relative to this Section recognizing the enormity and complexity of developing criteria for bonding the surface effects of underground mining. These pointed out that ensuring successful environmental protection from underground mining is made difficult by the two principal surface effects_subsidence and mine drainage_and by the fact that they can occur over a very long time period. While the Office is cognizant of the arguments, no clear-cut solution was presented in the comments. Both the complexity of the issue and a present lack of adequate information to develop a special bonding program for underground mining has led to the deletion. Further study is required regarding the long-term effects of underground mining. Until a solution to this problem is found, general criteria for performance bonds will apply to both underground and surface mining operations.

SECTION 805.12 Minimum amount.

1. Section 805.12 is a statement of the minimum amount required for performance bonds for surface coal mining reclamation, restoration, and abatement operations. This Section follows the basic intent of the Act that bonds shall be used to assure the faithful performance of applicable performance standards in the Act and this Chapter. The Section also specifies, as does the Act in Section 509(a), that in no case shall the initial bond be less than $10,000 for a permit area, even if the amount determined by the standards set forth in this Section would be less.

2. Many comments were received in relation to the minimum $10,000 bond requirement, stating that this is discriminatory to small operators. The minimum bond amount is based on the Act and cannot be altered. Additionally, the bond is incrementally released as required under Part 807 and the $10,000 minimum does not apply to bond release.

To simplify this, proposed Section 805.12 was condensed to incorporate Subsections "a'' and "b'' into one paragraph.

SECTION 805.13 Period of Liability.

1. Section 805.13 provides for the period of liability or duration of the performance bond liability applicable to a permit.

Under Section 805.13(a), bond liability continues until all reclamation, restoration, and abatement work has been completed (see discussion of the intended scope of such work under Section 805.11), and the bond liability has been released in accordance with Part 807 of the regulations. The reference to Part 807 reflects the views of several commenters who recommended reference to the requirements for release of performance bonds. There was one comment which requested that the initial phrase "at a minimum'' be deleted from this Subsection since there is no reason to provide for time expansion of the potential bond. The phrase has been retained in context because this ensures compliance with other Federal or State regulations that may be of concern on a particular permit.

700 2. Under Section 805.13(b), the liability period for surface coal mining and reclamation operations is required by the Act and is coincident with the minimum period of liability for assuring the success of revegetation under Section 515(b)(20). That period is either five or ten years following the completion of revegetation work, depending upon the average annual precipitation in the area. This period is considered the minimum period because States have the discretion to extend the period of liability as a part of the regulatory program, or the regulatory authority may refuse to release the bond at the end of this period if any condition remains which would require retention of liability in accordance with Section 807.12(d). The text of Section 805.13(b) also has been clarified to prevent termination of the five- or ten-year liability period in those circumstances where the regulatory authority has required the permittee to take further measures related to assuring the success of revegetation, but where the permittee has failed to comply. The failure of the permittee to perform the additional measures might be the result of either a willful refusal to comply or an impossibility (e.g. unsuitable weather), but the permittee should not be relieved of liability in either case as long as more work has been required prior to the termination of the liability period.

3. In Section 805.13(b), several comments also were received suggesting that the five-year period of liability for surface mining was too long. Because the Act is quite specific in its requirements for a five- or ten-year period of liability for surface coal mining and reclamation operations, these comments were not accepted. There were many comments received in relation to the ambiguity as to when the five- or ten-year period before final release of bond commences. Section 515(b)(20) of the Act specifies that the permittee assumes responsibility for successful revegetation for a period of five or ten years commencing after the last year of augmented seeding, fertilizing, irrigation, or other work. Thus, the period of liability is set in the Act. In an effort to add clarity the Section has been reworded.

SECTION 805.14 Adjustment of bond amounts.

1. Sections 509(a) and 509(e) of the Act require that the applicant's bond shall be adjusted by the regulatory authority from time to time to assure sufficient funds for completion of the reclamation plan if the work had to be performed by the regulatory authority in the event of forfeiture. A permittee or any person with a valid legal interest that may be adversely affected may request such an adjustment. Consistent with the decision not to provide for an adjudicatory hearing with respect to the initial decision of the regulatory authority regarding the amount of performance bond liability that is applicable to a permit (see discussion at Part 800,), the Office has not proposed and will not require such a hearing with respect to adjustments of the bond amounts required by the regulatory authority. In addition to not requiring a hearing for adjustments in the amount of performance bond liability, Congress has also specified no procedure for the regulatory authority to require compliance with its decision to adjust the amount. If the permittee has chosen to increment his bond payments over the term of the permit, or if the operation will require a renewal of the permit, a decision by the regulatory authority to increase the amount of liability can be implemented by not accepting bonds filed in lesser amounts and refusing to allow mining to continue beyond the previously bonded area, or by withholding a permit renewal until the required amount is filed. No other procedures are explicitly provided for enforcement of an adjustment decision.

{15113}2. The regulations require the regulatory authority to review the bond amount no more frequently than the regulatory authority is required to review the permit under 30 CFR Part 788 unless acreage increases or changes in operations or standards trigger a more frequent review. The mandatory review is required by Section 509(e) of the Act. A review of bond amounts was tied to the review of permits in order to accommodate administrative convenience and to ensure that changes in operating requirements required as a result of the permit review are reflected in the performance bond liability applicable to that permit. More frequent reviews may be made by the regulatory authority at its discretion.

3. Several commenters felt that bond adjustments were mandatory and that a change of language would give the States some flexibility on adjustments. Section 805.14 as written points to specific times when an adjustment may be necessary; however, there must be some cost basis upon which to make a cost analysis. Without this data, an adjustment cannot be made. The Section as written provides sufficient flexibility to decide when adjustments are needed. Several comments were directed toward the fact that sureties would have difficulty in properly calculating maximum liabilities, if bonds were increased when adjusted. It was recognized that bonding companies will have to analyze their financial obligations closely, if the bond is increased, however, the purpose of Section 509(e) of the Act is to provide sufficient funds for reclamation through adjustment, if necessary. These comments were reviewed and were not accepted. One comment suggested that once the initial bond was set, any increase in reclamation costs (in the event of forfeiture) should be funded by the regulatory authority through the reclamation fund provided for by Section 402 of the Act. Section 402 of the Act applies to operations that were legally abandoned on August 3, 1977, therefore, funds under Section 402 are not available for operations that were active on or after that date. Since there are no provisions in the Act to provide funds as addressed by this comment, it was not acceptable. Several surety companies were concerned that the regulatory authority only notified the permittee and not the bonding companies. Sureties only are responsible for the initial amount of the bond they accept, and do not need to be notified of adjustments in the amount of liability under a permit by the regulatory authority. If the bond is increased, it is the responsibility of the permittee to get the additional bond to cover that permit area, not the sureties, so additional language to that effect was not required.

4. Word changes have been made in this Section to delete the term "underground mining'' and to include revisions of permits (rather than increases or decreases of acreage). Due to a comment received, it was decided that a decrease in acreage should be treated as a partial release of bond because it would remove the acreage from the permit area and thereby relieve the permittee of any further legal obligations with respect to such lands. Such major change in status should not be allowed without informing persons who might be affected and allowing them an opportunity to participate in the decision. The word "performance'' was added to "bond'' (as defined in 30 CFR 701.5) to clarify its application in Section 805.14.

Section 805.14(b) imposes a requirement on the permittee to prove that his activity justifies a reduction in the amount of the performance bond. A commenter suggested that any request for a reduction of bond be considered as a request for a partial release of bond in accordance with 30 CFR Part 807 of this Chapter. As the regulations were drafted, there appeared to be no discernable difference between adjustment of a bond due to a decrease in acreage and a partial bond release. Therefore, the comment was accepted and appropriate changes were made in this Section.

700 6. To simplify the intent of proposed Section 805.14 (c), (d) and (e), hearings and decisions on bond adjustments by the regulatory authority now are dealt with and expanded upon in Section 807. In contrast to the absence of a provision for adjudicatory hearings in cases where the amount is adjusted upon the initiative of the regulatory authority Section 805.14(b) requires that the procedures established in Part 807 for requests for bond release be followed if the permittee initiates an adjustment which would result in a reduction of the total bond liability applicable to a permit. The intent of the Office is to ensure that when a decision is made by the regulatory authority to release some portion of the original bond liability required as a condition for the commencement of mining, that persons who may be affected by that decision will be informed and will have an opportunity to participate in the decision.

The Office recognizes that providing this opportunity for public participation by incorporating the procedures in Part 807 also provides a permittee with an indirect opportunity to obtain an adjudicatory hearing with respect to the bond amount. The permittee is not restricted to any particular time or factual circumstances as a condition for making his request, except that his request is necessarily limited to bond liability already in effect and applicable to a particular permit. An unsatisfactory response by the regulatory authority would give the permittee the option to request an adjudicatory hearing in accordance with Part 807. In such a proceeding, the burden would be on the party opposing the decision of the regulatory authority to establish that the decision was arbitrary, capricious or inconsistent with law.

SUBCHAPTER J -- BOND AND INSURANCE REQUIREMENTS FOR SURFACE COAL MINING AND RECLAMATION OPERATIONS, 30 CFR PART 806 -- FORM CONDITIONS AND TERMS OF BONDS AND LIABILITY INSURANCE Part 806 provides for the form, conditions, and terms of performance bonds and liability insurance. A total of 111 comments were received in reference to this Part.

SECTION 806.11 Scope.

1. Section 806.11(a) provides for two forms of performance or indemnity bonds which a regulatory authority will accept, a surety bond and a collateral bond. Several commenters suggested using "may allow for either'' instead of "shall allow for either'', thereby giving the regulatory authority more flexibility in determining the form of the performance bond, and allowing States to use their individual standards for bond forms if they so desire. The regulations state that the regulatory authority shall allow for either a surety or collateral bond, but does not necessarily limit the acceptable bond form to these two types. Therefore, the preferred language usage is "shall allow'' because it assures that at least these two types of bond forms shall be accepted, and allows the regulatory authority to accept a self-bond which meets the criteria of Section 806.11. In addition, Section 806.11(c) allows the Secretary to approve an alternative bonding system which meets the minimum criteria in Section 806.11(c) (1) and (2). This would allow for alternative forms of financial guarantees that are not considered surety bonds, collateral bonds, or self-bonds.

{15114}2. When reviewing a State-proposed alternative form of financial guarantees, the Office will evaluate the degree of certainty of the alternative as compared to the regulatory scheme with respect to the two criteria of review. For example, under the regulatory scheme, the certainty of having sufficient funds available to complete reclamation depends primarily on the certainty that the surety will remain solvent, or that a second surety can replace the first, if necessary, prior to default by the operator. Such degree of certainty is extremely high. An alternative system must guarantee at least an equal degree of certainty in order to qualify.

3. Sections 806.11(a)(1) and 806.11(a)(2) have been shortened to include only the terms "surety bond'', and "collateral bond'' respectively. This was done to avoid repetition of Section 800.5 which was added to define these terms in detail. Two comments pointed out the vagueness of the terms which led to the clarification.

4. Section 806.11(b) establishes criteria for the self-bond, authorized under section 509(c) of the Act. Sixty comments were received which referenced the self-bond issue.

Several comments suggested deletion of self-bonding entirely. The rationale being that only a bond supplied by a surety company would guarantee proper funding for reclamation. Encouraging self-bonding would allow large operators to withdraw from the bond market, thereby leaving surety companies with the highest risk small operators. Surety industry commenters concluded that they would withdraw from the coal business if most of the large coal producers were allowed to self-bond, thereby forcing most small operators out of production.

One of the commenters did not want self-bonding because of its inherent inadequacy for assuring completion of reclamation. Alternatives include abolishing the self-bond, or requiring that a general reclamation fund be established, but these options are not open to the Office by law. A State clearly has the option to abolish self-bonds if it chooses. Such action would make the State bond program more stringent than under Federal law. The State also has the option to establish additional conditions on the approval of a self-bond.

Since provisions had to be made in accordance with the Act for the self-bond, three options were open. First, to establish economically unacceptable requirements to force large operators to remain in the general pool of surety customers. Second, to make it easy for large operators to qualify, thereby testing the prediction that the surety industry will withdraw from the coal business. Finally, the Office could have made it easy for all operators to qualify, and thereby expose the public to an unacceptable risk of bearing the reclamation costs. The Office preferred not to attempt to predict surety industry responses to changes in the bond market because its knowledge of the bond market was imperfect, at best. A judgment was made that low capital operations dependent on a few owner-managers cannot be expected to provide a safe risk over long term extended operations. Operations with more capital can be reasonably expected as a safer risk. Therefore, revisions were made to the proposed regulations consistent with these basic assumptions. First, the signature requirements in Section 806.11(b)(6) were simplified for corporations. The proposed requirement for signature by all the members of the board of directors was dropped in favor of a process which would require approval of the board so that the board would have direct knowledge of the corporate commitment. Stricter requirements, however, were retained or partnerships and proprietorships because of the relative ease with which such forms of business can be liquidated by the owners thereby leaving the regulatory authority with a valueless shell as the remaining obligor under the bond. 5. An example of the problem which concerns the Office most with respect to the self-bond procedure is the much litigated Blue Coal Case in Pennsylvania. There a multimillion dollar coal producer was closely held by its family-managers for many years. In the mid-70's, the company was sold to a new owner who commenced rapid liquidation of the company's assets while continuing coal mining activities at certain operations in the anthracite region. Litigation was first commenced by the Commonwealth in 1974 when the new management's liquidation program included the sale of the company's huge dragline. If the dragline were removed from the site by the purchasers as planned, regarding operations consistent with the company's reclamation plan would have become impossible. In order to prevent such a situation, the Commonwealth sued to compel continued use of the dragline on site until reclamation requirements were met.

This case was entitled Commonwealth vs. Blue Coal Company, 51 Equity Term 1974, Luzerne County Court of Common Pleas. Subsequent to entering a consent decree in the equity proceeding, Blue Coal's owners carried the liquidation process to the point of bankruptcy. Thereafter, it became clear that the requirements of the consent decree were not being implemented, thereby requiring further judicial action to obtain satisfactory reclamation of the operation. An action was filed against the trustee in bankruptcy to substitute him in the equity proceeding. This matter was finally resolved by the bankruptcy court so as to subject the trustee to the equity court's jurisdiction, but only so long as mining operations were continued by the trustee.

In its decision in In re Blue Coal Corporation, Bankrupt: Shea, Trustee vs. Commonwealth of Pennsylvania, BK 76 1311 (DC; MD; PA; Jan. 18, 1979, per Gibbons, J.) the court stated: If the trustee elects to terminate the strip-mining of the bankrupt's coal lands his responsibility for all practical purposes will be terminated. The Commonwealth will be left with the proceeds of its claim, whatever they may be. If the strip-mining continues the trustee must observe the regulations set forth in the Surface Mining Act.

There is little doubt that Blue Coal would have been a prime candidate for approval as a self-bonded operator in the early 1970's. However, as the litigation history of this company has shown, a regulatory authority would have found it very difficult to protect the legitmate interests of the public in achieving successful reclamation when confronted with a management decision to liquidate. First, the agency is not informed of management's decision until the company's conduct at the mining operation becomes sufficiently blatant to cause an observer to infer what management's intentions are. Second, once it becomes reasonable to suspect management's intentions, financial resources may no longer be available to complete all reclamation work. Third, forfeiture on the self-bond could force bankruptcy which, assuming the bankruptcy court's decision in Blue coal becomes the rule, would induce the termination of the operation thus leaving the trustee with no duty to reclaim, hundreds of miners out of work, and the regulatory authority standing in line with all its fellow creditors. The likelihood of recovering the resources from the bankrupt's estate to complete all reclamation would be extremely small. Such a result cannot be the result intended by Congress when it established the self-bond requirement. 700 {15115}In drafting the self-bond regulations in response to thoughtful comments from the States, industry and citizens groups, the office intends to preclude another Blue Coal situation.

6. There were several comments suggesting the inclusion of the exact language of Section 509(c) of the Act, rather than specifying detailed criteria for self-bonding. This would, in effect, leave the States complete discretion in the adoption of the criteria. This approach was contrary to the general thrust of state comments. It was felt that self-bonding invites potential disaster to the public unless it is carefully regulated so as to accomplish the results of bonding provisions intended by Congress. The office believes the Congressional goals were twofold (a) to assure the regulatory authority of funds to complete reclamation in case of default by the permittee and (b) to create financial inducement large enough to assure complete reclamation by the permittee or a trustee in bankruptcy. Even in bankruptcy, it will often be cheaper for an operator to do the work and recover the bond (especially collateral or secured property) than to allow a forfeiture. This is because the amount of the bond will be based on the regulatory authority's cost and the operator will be able to complete the work for substantially less with equipment and labor on hand.

The legislative history in Senate report No. 95 128, p. 78, supports the view that self-bond provisions should accomplish the generally expressed goals of the bonding provisions. This cannot be accomplished without imposing strict conditions for the approval of a self-bond. Some of these conditions were explicitly required by Congress, others were initially proposed and now are modified in response to comments, and still others are new as a result of helpful ideas supplied by commenters.

The first is Section 806.11(b)(1) which is required by Section 509(c) of the Act, and which has been modified to assure that the agent of a permittee is in the state where the operation is located thereby assuring that the legal representative of the permittee is within the reach of the process of State or Federal courts.

The second condition, Section 806.11(b)(2), establishes a net worth test for the approval of a self-bond. This test was proposed as two times the total amount of self-bond obligations on all permits issued in the United States, but has been changed in response to comments from the surety industry and citizen representatives to six times the total of such obligations.

7. A few commenters were concerned with the reliance upon net worth as an adequate measure of financial ability to complete reclamation. This Section appeared as Section 806.11(b)(3) in the proposed draft of the regulations and has been renumbered in the final regulations to Section 806.119(b)(2). Specifically, one commenter stated that the concept does not recognize serious limitations on its use as a criteria for determining the readily available assets to the regulatory authority. Comments from surety companies pointed out that reliance on the two times multiplier as proposed in the September 18 regulations was much lower than the rule-of-thumb generally followed in the industry, i.e., 6 8 times.

Alternatives considered were (1) to retain the original two times multiplier; (2) to increase the multiplier; (3) to use net worth in conjunction with a security interest in property as requested by several commenters; (4) to evaluate other measures of corporate financial health in conjunction with net worth; or (5) a combination of 2, 3, and 4 above. Alternative (5) was chosen using a combination of increased multiplier, addition of security interest requirement discussed below, and establishment of general criteria for review of a company's financial solvency, as discussed further below.

The multiplier in the "net worth'' test was increased to six times the total amount of self-bond obligations on all permits issued to the applicant to more clearly reflect that presently used by the surety industry.

8. One commenter suggested allowing net worth of corporate parents to be included in the calculation. This comment was accepted provided that under Section 806.11(b)(6)(i)(D), the net worth of the applicant and its corporate parents both would be available to the regulatory authority in case of forfeiture. The net worth of the corporate parent is considered only if it is a joint guarantor of performance under the self-bond.

9. There were several comments relative to documentation of the applicant's net worth by a certified public accountant. The alternative suggested was amending Section 806.11(b)(2) to permit the certified financial statement from the last fiscal year-end to document the applicant's net worth. This was rejected because it would restrict the regulatory authority's discretion. The retained language allows the regulatory authority the option to use the last year-end statement as requested by the commenters, or to request a current statement where deemed appropriate. 700 10. Relative to Section 806.11(b)(3), the third condition for the approval of a self-bond is a requirement that the applicant grant to the regulatory authority a mortgage or security interest in property which has a fair market value equal to or greater than the bond obligation. This requirement was requested by a commenter concerned that the public might have to bear the expense of reclamation in circumstances similar to the Blue Coal case previously discussed. Also a similar requirement was included in the Wyoming self-bonding regulations which were submitted to the Office along with a request that the State requirements be incorporated into the Federal regulations. Each of these comments were considered valid since otherwise the regulatory authority would be left responsible if the permittee goes bankrupt, dissolves, or leaves the country. Also, as shown by Pennsylvania's recent Blue Coal experience, even large closely held corporations can be robbed of assets. The financial vitality initially relied upon by the regulatory authority can be quickly dissipated. The regulatory authority must forfeit and force bankruptcy with the regulatory authority then becoming responsible for massive clean-up operations with little expectation that the full value of the bond will be recovered.

In the Senate Committee Report No. 95 128 (May 10, 1977), p. 78, the Committee specifically required the "deposit of cash and negotiable (bonds) . . . in lieu of posting a bond. These meet the objectives of the bond, i.e., having a fund available to accomplish reclamation just as effectively as a bond.'' It is reasonable to conclude that Congress intended the Office to develop criteria for self-bonds to "meet the objective of the bond, . . .

just as effectively as a bond.'' A degree of certainty nearly equal to that of a surety or collateral bond that the fund will be available when needed can be achieved by requiring a security interest in real or personal property of sufficient value to cover reclamation costs. With this requirement, the regulatory authority will be able to recover the secured claim with priority over any other creditors in case of involvency or bankruptcy. Sections 806.11(b) (3) and (4) are, therefore, additions to the regulations.

11. The Office has interpreted the legislative history to require that funds needed by the regulatory authority to complete reclamation be available and as secure under a self-bond as they would be under a surety or collateral bond. This only can be accomplished by giving the regulatory authority a security interest in property of sufficient value as required by Section 806.11(b)(4). In addition, the Office does not believe it is reasonable to allow self-bonds which fail to meet the criteria for an alternative system of financial guarantees, (Section 806.11(c)). The second criteria, i.e., "substantial economic incentive for the permittee to comply'' can only be adequately accomplished by a combination of the security interests required by Section 806.11(b)(4) and personal liability for those officials or owners of a company who control its financial policies and operating conduct as required by Section 806.11(b)(6)(iii).

{15116}It is intended that the interest of the regulatory authority in the property pledged to secure the performance of the permittee' duties be superior to all other claims against that property. Whenever recording or filing requirements are necessary in order to preserve a claim against subsequent purchasers for value, this shall be done. Where State law does not allow a claim to be preserved or given priority over a subsequent purchaser for value for certain classes of property, such property may only be pledged if delivered into and retained in the possession of the regulatory authority.

12. The fifth condition for obtaining approval of a self-bond is the statutory test of Section 509(c) of the Act which requires the applicant to demonstrate a history of financial solvency of continuous operation, (Section 806.11(b)(5)). Congress offered no clear guidance regarding the detail of the demonstration required, and none was initially proposed by the Office. However, a number of commenters asked that it be added. Many comments were directed to proposed Section 806.11(b)(2), applicant's history of compliance with the Act. Many commenters asserted that no authority exists for requiring history of compliance as a criteria for self-bond. The alternatives considered were to (1) retain the regulation as written in the proposed final draft; (2) delete the regulation and replace it with Section 509(c) of the Act; (3) amend the section to provide that the applicant shall not have to demonstrative a history of non-complanice and; (4) replace the Section with detailed criteria for demonstrating financial solvency and continuous operation. Alternative (4) was selected.

13. It is agreed that Section 806.11(b)(2) of the proposed regulation which would have required demonstration of compliance with the Act for 10 years is impractical because the Act was not enacted until August, 1977. However, it should be noted that the proposed regulation did not require a spotless record of compliance, but only that degree of compliance which would avoid a shutdown under the Act, i.e., complying with notices of violations, not exhibiting a wilfull pattern, or not forfeiting a bond. Each of these are related to the two criteria for self-bonding in Section 509(c) of the Act, i.e., continuous operation and financial solvency. It is not unreasonable to require the operator to make the same kinds of showings to the regulatory authority that would be made to persuade a surety to sell him a bond. Sureties commented that one evaluation they make is the probability that the operator will complete the work. Directly related to establishing his ability to complete the work, is the ability to conduct current operations so as to avoid those kinds of violations which would result in cessation orders, permit revocation, or bond forfeiture. Reasonable inferences regarding the likelihood of compliance or future violations may be drawn from the operator's past history. Specific criteria for evaluating the compliance history of the applicant were dropped, but the regulatory authority will receive compliance information pursuant to Sections 778.14 or 782.14 and may take it into consideration when reviewing a request for approval of a self-bond.

14. Additional criteria to be considered by the regulatory authority when determining whether a history of financial solvency and continuous operation has been satisfactorily demonstrated have been derived primarily from the Wyoming regulations. These have numerous provisions requiring information which is useful to the regulatory authority in evaluating an applicant's history of financial solvency and continuous operation, and predicting further financial capability required by Section 806.11(b)(5). These criteria and related information include Section 806.11(b)(5)(iii), the history of the applicant's prior bond obligations in effect on each of its active coal mining operations in the U.S. during the 10 years prior to the application; Section 806.11(b)(5)(iv), a description of such coal mining operations including the dates within which each operation was conducted by the applicant, and an explanation for any periods when any coal mine was not in operation; Section 806.11(b)(5)(v), a financial statement containing sufficient detail to permit the regulatory authority to identify any short or long-term patterns of cash flow, asset depletion, excessive debt obligations, or other factors which would affect the financial ability of the company to guarantee the performance of all obligations at a given operation; Section 806.11(b)(5)(vi), a list of legal proceedings arising out of claims by private or public parties based on the failure to perform other obligations, financial or otherwise, during the preceding 10 years; and Section 806.11(b)(5)(vii), information relating to any actual or alleged failure to disclose financial transactions, data or practices as required by law so as to assist the regulatory authority in evaluating the credibility of the information supplied by the applicant.

The Office recognizes that the information required by Section 806.11(b)(5) is extensive. However, all of it is information already known by the applicant, and little, if any, will be made public for the first time under this regulation. Therefore, the Office does not expect it to impose a heavy burden on the applicant, and it will contribute substantially to the ability of the regulatory authority to evaluate the demonstration required under Section 509 of the act.

15. The final requirement for self-bonding in Section 806.11(b)(6) is that an indemnity agreement must be executed by the applicant and those individuals with responsibility for the mining operation, whether it is a corporation, partnership, individual or any other form of ownership. This Section was renumbered from section 806.11(b)(4) in the proposed regulations to Section 806.11(b)(6) in the final. The purpose is to bind in agreement not only the applicant, but also those individuals who have authority to make decisions relating to whether or not the applicant complies with the Act. It is the Office's intention to require these individuals to sign in their individual capacity so as to create a strong financial incentive for all non-corporate operators who self-bond to comply to the fullest extent with the requirements of the act. Such personal liability is consistent with the traditional liability of proprietors and partners. 16. Several comments addressed the requirement for signatures of principal corporate officers on the indemnity agreement. It was suggested that proposed Section 806.11(b)(4)(i)(A) be amended. Alternatives considered were: (1) retaining original language; (2) eliminating all special signing requirements; (3) amending the section to read, "If the applicant is a publicly-held corporation, its principal executive officer or officers and its principal accounting officer . . .''; (4) modifying the section to read "If the applicant or its parent is a publicly-held corporation which has not established a net worth;'' or (5) amend as follows, "If a corporation, then by two corporate officers who are authorized to sign the agreement by a resolution of the board . . .''. The last alternative was chosen because in large companies, to require each board member to be personally liable is unrealistic, and to require principal officers to be liable without intentional misconduct or negligence on their part is inconsistent with traditional notions of limited liability for corporations and the lack of liability for faultless owners or officers. However, the regulations will require that the board of directors authorize the execution of the agreement.

{15117}17. A comment requested deletion of the requirement of execution of the indemnity agreement by a parent organization because it was unnecessary and unreasonable. This rationale was rejected because it is important to make liable on a self-bond those who are in a position to direct or control the financial policy or mining practices, especially when the permittee is a wholly-owned subsidiary. Of special concern are those situations where the permittee's parent organization(s) decide to liquidate the organization, leaving a valueless shell. Additionally, a frequent practice in Western States is for two or three large corporations to engage in a joint venture, which is itself either a corporation or partnership, to operate a large mine. Often for tax reasons, the capital equipment is leased to the venture company by its parents, the coal resource is owned by one of the parents or a third party, the venture company has few assets in its own name and is not intended to survive the life of the mine. In these circumstances, it is important to have a commitment from the parents to insure sufficient funds in case of forfeiture, and to act as an inducement for the operator to complete the work.

18. Concerning the requirement for execution of the indemnity agreement by the applicant and its parent organization(s), section 816.11(b) (4)(i)(c) as proposed (section 806.11(b)(6)(i)(c) as revised), a few comments stated that it was unnecessary for all parents to be held responsible for self-bonding. While it may seem burdensome, this is necessary to insure sufficient reclamation funds to the regulatory authority and to act as an inducement for the operator to complete the reclamation work. Clarification of this Paragraph was made to better identify the requirement.

19. Along similar lines, another commenter wanted deletion of section 806.11(b)(4)(i)(E) (Section 806.11(b)(c) (i)(D) as renumbered), execution of the indemnity agreement by the applicant's spouse, if married. The comment was rejected because the rule was designed to avoid the transfer of an operator's assets to his or her spouse, thereby leaving the operator judgment proof.

20. The requirement for the execution of the indemnity agreement in a closely held corporation, by its principal investors, its principal executive officer or officers, its principal financial officer, its controller or principal accounting officer as required in proposed Section 806.11(b)(4)(i)(F) has been deleted from the final regulations. A few commenters suggested the deletion. It was decided that the section should be eliminated for the reasons recited above under Section 806.11(b)(6)(i)(A). The primary justifications for requiring the personal liability of key officers in closely-held corporations, i.e., to assure a recourse for the regulatory authority in the event the corporation is deprived of its assets, and to create a financial incentive for the owners to complete reclamation, are now achieved by the new requirement for a security or mortgage interest in property pledged to guarantee performance of the bond obligation. A pledge of property is considered a far more secure commitment than the personal liability of the officers of small corporations. The pledge of property required by Section 806.11(b)(4) eliminates any further justification for the personal liability requirement.

21. Section 806.11(b)(4)(iii) of the proposed regulations provided that "the indemnity agreement shall be a binding obligation, jointly and severally, on all who execute it.'' Several commenters requested deletion of the section because they felt it made self-bonding unworkable and defeated the intent of section 509(c) of the Act. These comments were not accepted because to do so would have removed personal liability from all officers or parent organizations of the permittee. While liability for civil or criminal penalties under Section 518 of the Act is available, any obligation to personally fulfill bond obligations in the event of forfeiture would have been lost. The result would be to remove some of the financial inducement to comply with the reclamation plan. Another consideration was that deleting this provision would relieve the parent of a subsidiary from being coguarantor on a bond.

22. Section 806.11(c) implements the Section 509(c) of the Act requiring that the Office approve alternative bonding systems. Any alternative must meet, at a minimum, the two main goals of a bonding program. The first is to assure that the regulatory authority will have available, in the event of forfeiture, sufficient money to complete applicable reclamation, restoration or abatement requirements. Second, a bonding system must provide a substantial economic incentive for the permittee to comply with all reclamation requirements. Either a surety bond or a collateral bond makes the liability for which the operator may ultimately be responsible a significant incentive for him to comply with the act. In self-bonding, the requirement that the indemnity agreement provide joint and several liability for all individuals involved in a particular operation gives all of them a significant incentive to comply with the Act. An alternative system of financial guarantees must achieve the same incentive, and subject operators to the same threat of substantial penalty in the event of forfeiture, or its equivalent.

SECTION 806.12 Terms and conditions of the bond.

1. Section 806.12 contains the terms and conditions for bonds. Particular attention was given to the requirements for surety bonds which were drafted to prevent any abuse in the system that may leave the regulatory authority without an effective remedy. These same provisions were then applied to letters of credit when that concept was accepted.

2. Section 806.12(e) contains a number of special conditions applicable to surety bonds. The first major requirement is that the regulatory authority not accept a bond written by a surety company unless the surety company agrees that the bond shall not be cancellable at any time for any reason, including nonpayment of premium by the operator or bankruptcy by the operator. A few commenters opposed this requirement because it would be unreasonable to expect the surety to continue coverage if the permittee is bankrupt or fails to pay premiums. They claim that the regulations, as written, are so objectionable to surety companies that they substantially limit companies willing to write such bonds and may increase the cost of such bonds. Recommended alternatives were: (a) to allow cancellation providing there is written notification sent to the regulatory authority a certain time period prior to the cancellation; (b) to allow the surety to cancel a bond on unmined land with prior notice to the regulatory authority; or (c) to allow cancellation of a bond with the consent of the regulatory authority upon sufficient substitution by the permittee with another performance bond.

700 In response to these comments, Section 806.12(e)(1) has been amended to allow cancellation only of bond coverage for permitted lands not yet disturbed provided the surety gives at least 60 days notice to both the operator and regulatory authority prior to cancellation and receives approval for the cancellation from the regulatory authority. The regulatory authority may approve cancellation only if there is a replacement bond filed by the permittee or the permit areas have been reduced to include only those operations for which remaining performance bond liability is sufficient. The surety's co-guarantee for reclamation work on lands that have been disturbed cannot be cancelled because, even if the operator fails in business, the regulatory authority must be able to look to a financially stable and secure guarantor for performance of the reclamation obligations under the permit, including collection at the time of bond forfeiture, if necessary.

{15118}3. In accepting a surety company as a guarantor of performance under a bond, the regulatory authority has a right to expect that for any disturbed land the guarantee will be good for as long as the applicable period of liability established for the particular mining activity involved. Therefore, the regulations are written to forbid cancellation of a bond on disturbed land. Allowing the surety to cancel a bond for undisturbed land is an opportunity for the surety to withdraw from any future liabilities with the permittee if it is desirable. The notice which is due 60 days prior to cancellation is necessary to give the permittee and regulatory authority time to secure and approve a new bond for the land or to reduce the permit to the area that has sufficient bond coverage. However, if arrangements satisfactory to the regulatory authority cannot be made, the burden will be on the surety to compel the permittee to suspend operations to prevent the surety's obligation from increasing as new areas are disturbed. The regulatory authority will have no obligation to suspend operations because the bond will remain in effect until cancellation is approved under the regulation. This restriction is based on the first principle of surety law, i.e., the surety undertakes the obligation to stand in the shoes of the principal, and his obligation may not be rescinded or terminated without the consent of the party to whom the duty is owed. The restriction of this provision does not bar the placement of performance bonds (30 CFR 806.13).

4. The second major restriction on surety bonds relates to the maximum single obligation (Section 806.12(e)(2)). In the Commonwealth of Pennsylvania, the maximum single obligation is defined as ten percent of the capital surplus account. A standard based on the capital surplus account is an indication of the liquid assets of a surety company. Most States have a maximum single obligation applicable to surety companies in order to assure that a surety company does not engage in the practice of writing bonds in excess of its ability to pay if there is a default. This Section has been drafted to reflect the fact that some States might have other requirements in terms of a maximum single obligation, or might not have any requirement, in which case the ten percent amount would be applicable.

5. The third major restriction on surety bonds is a requirement, in Section 806.12(e)(3), that a surety company not write bonds in excess of three times the maximum single obligation for any particular operator. The rationale for this requirement is that if a company were allowed to write bonds for many permit areas on behalf of a single operator in excess of this amount, the surety company could be forced into bankruptcy if the operator failed. It should be noted that when an operator fails on one permit, the operator may also default on every bond obligation at every permit site because failures are usually related to a failure in business, bankruptcy or the death of a principal. It seems clear that the total amount of bond obligation that might be assessed upon default against a particular surety company, if it is not limited to some reasonable amount as proposed, might very well overwhelm the surety and force it into bankruptcy. Such an occurrence would not adequately protect the regulatory authority's need to provide a safe source of funds should an operator fail.

6. Section 806.12(e)(4) as proposed would have allowed the regulatory authority to provide in the bond that the amount of the bond shall be confessed to judgment upon forfeiture if confession of judgment is authorized by State law. A few commenters suggested deleting this provision because there are substantial conflicts with due process when dealing with confession of judgment clauses which are illegal in many States and because the surety should be allowed to assert any defenses to liability, to forfeit the bond, or meet the requirements of the bond in a compliance schedule. On the other hand a few commenters recommended making this provision mandatory, so as to assure the regulatory authority's collection of the forfeited bond. Although confession to judgment may be illegal in some States and may seem to be an unnecessary hardship for the surety, it is not mandatory. It is intended that this procedure be left entirely to the discretion of each State in the development of its State program. Even where effective, a confession of judgment clause can be avoided by exercising the right to appeal and requesting a stay of collection, or the option to set up a compliance schedule as specified in Part 808.

7. Section 806.12(e)(5) provides that the surety and permittee or applicant be jointly and severally liable so that the regulatory authority can seek collection of the bond from either or both of these parties.

8. A new Section 806.12(e)(6) has been added in response to a commenter's inquiry regarding how the regulatory authority will restore adequate coverage if the surety fails in business. The provision clarifies the duties of the permittee, surety and regulatory authority. The burden is ultimately on the permittee to continue effective performance bond coverage.

9. Section 806.12(f) sets forth conditions for collateral bonds. The first requirement, in Section 806.12(f)(1) is that the regulatory authority keep custody of all collateral deposited by the operator. Without possession, the pledge of collateral may be nothing more than a hollow promise at the time of forfeiture, since securities may be sold to holders in due course under the Uniform Commercial Code without any recourse by the regulatory authority to whom they were pledged.

700 The second requirement is that the collateral or securities be valued at current market value and not face value. Bonds may be discounted or otherwise have different values not at all related to the face value of the collateral. In order to properly assess the value of a bond related to the amount rquired, it is necessary to evaluate it at the current market value. If the market value falls while in the possession of the regulatory authority, additional collateral should be required.

The third requirement relates to certificates of deposit and provides that such certificates of deposit must be assigned to the regulatory authority upon the books of the bank issuing such certificates. The assignment on the books of the bank is essential in order to validate the regulatory authority's control over the certificate, not merely for bond forfeiture, but also to protect it against third-party creditors who might try to attach to such collateral depositied with the regulatory authority. A commenter suggested that the regulations provide that interest on these certificates be transmitted to the permittee. The regulations were not changed as suggested because under normal banking procedures the Office assumes that any accrued interest belongs to the owner of the certificate and will be paid directly to him unless alternate arrangements are established in the indemnity agreement.

The fourth requirement is that individual certificates of deposit shall not exceed the amount of $40,000 or maximum insurable amount as determined by the FDIC or/and FSLIC. The maximum of $40,000 was selected because it is the maximum amount insured by FDIC or by FSLIC. The last phrase was added in response to a comment, which would provide an opportunity to adjust if FDIC and FSLIC change their requirements.

The fifth requirement is that banks issuing such certificates of deposit waive all rights of set off or liens against the certificates. Under banking law, a bank does have a right of set off against deposits unless it is waived. In most circumstances an operator will go to a bank from which it has borrowed money to purchase these certificates of depost in order to do business with one bank. If the bank fails to waive its right of set off, or its right to a lien, they may well maintain a prior right upon the the failure of permittee because of prior obligations to the bank. In most circumstances, the inability of an operator to pay creditors would leave the bank in first position to take the certificates. The regulatory authority must always be in first position to take the certificates upon default and not subject to any other prior creditor claims.

{15119}The sixth requirement for collateral is that certificates of deposit be automatically renewable. Some certificates may provide for maturity terms as little as six months of a year or for as long as eight years. If the regulatory authority does not hold automatically renewed certificates, it would be necessary for it to keep passing back and forth certificates, getting new ones at every point of maturity or risk the possibility that matured certificates would be paid out to the owner. The constant changing of these certificates would be an intolerable administrative burden whereas no burden results from the requirement that they be automatically renewed.

10. Section 806.12(f)(7) provides that the regulatory authority will require the applicant to deposit sufficient amounts of certificates to assure that the certificates can be liquidated prior to maturity for 100 percent of the required bond amount. One of the implicit limitations on certificates of deposit is the requirement by the Federal Reserve that a penalty be assessed against such certificates of deposit for withdrawal prior to maturity. This penalty is a 90-day amount of interest that would otherwise be earned by the certificate. If a certificate is cashed prior to maturity, the bond or certificate could be valued, because of the penalty, between 92 percent and 95 percent of its face value.

11. A few commenters requested the addition of a letter of credit to the bond criteria. The alternative presented by the commenters was to insert the letter of credit using the following language change: "An irrevocable letter of credit in a form acceptable to the regulatory authority, on any bank organized or transacting buiness in the United States, if the applicant so chooses.'' Other alternatives considered were not to include letters of credit or to include a limited letter of credit. The chosen alternative was to add the letter of credit to the definition of collateral bond and to add conditions in a new Section 806.12(g), emphasizing the irrevocable nature of the obligation during the life of the mine. Also, the language was amended in Section 806.12(f) to exclude letters of credit from that Section. This concept was accepted because a letter of credit, irrevocable during the life of the mine and automatically payable upon forfeiture by the regulatory authority, unless released first under part 807, offers the same fund for the completion of reclamation as a surety bond. In order to establish approximately similar guarantees of payment, the same requirement restrictions applicable to surety companies in Section 806.12(e) (3), (4), (6), and (7) are also to apply to banks offering letters of credit.

SECTION 806.13 Replacement of bonds.

1. Section 806.13 sets forth regulations in regard to replacement of one type of performance bond with other acceptable forms. Surety, collateral or self-bonds are interchangeable, providing that the criteria for each is met.

2. The proposed regulations had specified in Section 806.13(b) that no operator may replace existing surety or collateral bonds with a self-bond. Many comments were received stating opposition to this provision because Section 509(c) of the Act allows for self bonding. It was noted that the regulatory authority does not have the statutory authority to deny an applicant the right to substitute a self-bond for a surety or collateral bond if he or she qualifies and if the regulatory program provides for self-bonds.

Alternatives considered were deleting the entire Section, modifying the provision to allow replacement with a self-bond, or adapting the provision as proposed. It was decided to modify the provision by changing the language so that the regulatory authority may allow replacement of a collateral or surety bond with a self-bond, providing the self-bonding requirements in Section 806.11(b) are met. Section 509(c) of the Act does not restrict replacement with self-bond, and the purpose of the performance bond is to assure compliance with reclamation obligations. Therefore, if the operator meets self-bonding requirements, no justification exists to deny that option.

SECTION 806.14 Terms and conditions for liability insurance. 1. Section 806.14 provides the terms and conditions for liability insurance. The authority is derived from Section 507(f) of the Act. Section 806.14(a) sets forth the minimum amounts for coverage. Several commenters suggested deleting the minimum insurance coverage because it is not addressed specifically in the Act. However, the Office believes that minimum coverage, based on prevailing liability insurance practices, should be included to provide a floor for the exercise of regulatory authority discretion in determining an adequate amount of coverage. These minimums reflect industry practices and prevent individual states from allowing inadequate coverages which will fail to assure the public protection intended by Congress. Thus, discretion to increase coverages is preserved.

700 2. In response to a comment directed at the use of terms standard to the insurance industry, the language in Section 806.14(a) of the proposed regulations has been revised. The terms "bodily injury'', "each occurrence'', and "aggregate'' have been substituted where appropriate. Another commenter suggested that inclusion for liability insurance for damage to water wells is beyond the scope of the Act. However, Section 508(a)(13) of the Act states that the ground-water quality must be assured and Section 507(f) of the Act states that the insurance policy shall provide for property damage in an amount adequate to compensate any persons damaged as a result of surface coal mining and reclamation operations. Therefore, inclusion of damage to water wells as a specific example of the kind of liability intended to be covered by the policy has been retained.

3. Section 806.14(b) specifies that the policy shall remain in effect for the life of the permit or any renewal thereof. One commenter suggested maintaining liability insurance for a period of 25 years thereafter in order to protect adjacent landowners from damages which may not become apparent for a number of years after reclamation is completed. While the commenter had valid reasoning, the suggestion was not accepted because a 25-year extension is beyond the scope of the Act and would create problems in determining risk. Additionally, protection of adjacent landowners would be limited because the burden of proof will usually be on the victim.

4. Section 806.14(c) requires notification to the regulatory authority whenever substantial changes are made in a policy. A commenter declared this to be beyond the scope of the Act, and suggested it would result in regulation of the insurance industry and concluded that the provision should be omitted. The provision has been retained because it establishes an administrative procedure allowing the regulatory authority to be sure that the permittee will always maintain minimum coverage. The Office believes that this is not an effort to regulate the insurance industry, but rather a requirement that the permittee keep the regulatory authority informed regarding its insurance coverage.

5. Section 806.14(d) recognizes that the permittee may qualify under State self-insurance requirements in lieu of a public liability policy. Such State requirements must be included in the regulatory program and approved by the Secretary in order for them to apply. This is necessary if permittees are to continue to have this option during periods of Federal enforcement of a State program, or under a Federal program.

SUBCHAPTER J -- BOND AND INSURANCE REQUIREMENTS FOR SURFACE COAL MINING AND RECLAMATION OPERATIONS, 30 CFR PART 807 -- PROCEDURES CRITERIA AND SCHEDULE FOR THE RELEASE OF BONDS Part 807 adopts procedures criteria and a schedule for the release of performance bond liability and the termination of permits after completion of all liability periods required by law. The authority for this part is found in sections 102, 201(c), 501(b), 503, 504, 507(f), 509, 519, and 701 of the act.

Section 807.11 of the regulations is based on section 519 (a), (b), (d), (e), (f), (g), and (h) of the Act. The basic structure outlined in Section 519 for bond release is: (1) application, Section 519(a); (2) public notice, Section 519(a); (3) opportunity for objections and eval uation, Section 519(f); (4) inspection and evaluation of the site by regulatory authority, Section 519(b); (5) informal conference if provided for in the regulatory program, Section 519(g); an opportunity for a public hearing prior to release of the bond, Section 519(g); (6) regulatory authority decision and notice of its decision, Section 519 (b), (d), and (e); and (7) right to appeal the regulatory authority decision, Section 519(d).

Since neither the Act nor the regulation as proposed were organized sequentially, this Section and the procedures set forth therein have been re arranged in the appropriate sequence.

SECTION 807.11 Procedures for seeking release of performance bonds.

1. With respect to section 807.11(a), a few commenters requested that a surety also be permitted to file a request for bond release. These comments have been accepted and the regulations rewritten to allow persons authorized by the permittee to file an application for bond release. This provision will allow the permittee and his or her surety, or the bank which issues a letter of credit, to establish a contractual relationship by which the permittee authorizes the surety or the bank to file an application for release on his behalf. In the proceeding which follows, the party requesting release will always be the permittee, but by consent of the permittee the surety can be authorized to pursue the action. In order to accomplish the result desired by the surety company commenters, it will be necessary for them to secure the written consent of the permittee prior to his or her disability or incapacity which they fear might deprive them of a mechanism for being released from their obligations on the bond. In the absence of such consent, however, the Office does not think it is reasonable or appropriate to create a general right of sureties to file an application for release without the knowledge and consent of the permittee.

2. A few commenters suggested deletion of the requirement in Section 807.11(a)(1) to file for bond release only at appropriate times or seasons. These suggestions cannot be accepted since the regulatory authority is required to inspect and evaluate the reclamation work within 30 days of receipt of the completed application for release under Section 519(b) of the Act. This is possible only if the request is filed at an appropriate time or season to allow for proper evaluation. Without such a requirement, it could be impossible for the regulatory authority to exercise its responsibilities to evaluate the site and determine the adequacy of reclamation, and to conduct its site inspection within the 30-day time period allowed. For this reason, the Office has elected not to delete the requirement. Such a rule is both necessary and reasonable under the circumstances. In order to avoid any confusion regarding the proper season, the regulation requires the proper times to be stated in the approved reclamation plan.

700 The considered alternative would be to require the regulatory authority to hold the release request until the appropriate time or season. This was rejected since it is inconsistent with the statutory 30-day time period for the inspection.

3. Several commenters recommended deletion or reduction of the requirements in Section 807.11(b) for advertising the request for bond release in a local newspaper. These comments were not accepted because the Act requires both advertisement and most of the procedures in the regulations. The additional procedures included in the regulations are necessary to retain consistency with public participation provisions in other parts of the Act and the regulations in this Chapter.

4. Several comments on Section 807.11(b)(7) suggested clarification regarding who is entitled to submit written responses to the notice of application for release of bond advertised in the newspaper. These comments have been accepted, and Sections 807.11(b)(7) and 807.11(c) have been revised to make it clear that submission is limited to affected persons.

5. Section 807.11(c) provides that written responses may be submitted by any affected persons, as that term is defined in the regulation. The defintion reflects the criteria in Section 519(f) for determining who has standing to request a hearing.

6. A few commenters requested changing Section 807.11(d) to require the inspection for release of bond within 30 days of the notification and receipt of a completed application for release. These comments have been accepted since they are consistent with the language in Section 519(b) of the Act. The 30-day time period for the inspection begins when an application for a bond is completed. The application is not complete until the applicant has completed publication of all four notices and submitted proof of publication, along with a copy of the notice, to the regulatory authority. Receipt of these documents by the regulatory authority then triggers the 30-day time period. One exception to the 30-day requirement is made to allow for weather conditions which would preclude the kind of evaluation necessary for the regulatory authority to make a reasoned decision rather than an arbitrary decision based on speculation and surmise. The Office intends to avoid a deadline for action when, for example, an unseasonal snowstorm obscures terrain features or covers vegetation, and prevents an evaluation of restoration of original contour or revegetation.

7. With regard to Section 807.11(d) a commenter recommended that the 60-day time period established in Section 519(b) of the Act for action by the regulatory authority on the application for release be included in the regulations as a time limitation where no public hearing has been held. Since this time period is specifically set in the Act, the comment has been accepted and incorporated into Section 807.11(f)(2).

8. Several commenters recommended that an alternative vehicle for advertisement be included in Section 807.11(f)(ii) for those States not having an official State publication. These comments have been accepted. Where no such publication exists, the notice can be made in a newspaper of general circulation in the locality of the mine site. This change was made wherever there is reference to any official State publication, i.e., Sections 870.11(e)(1), (g)(1)(ii) and (2)(i).

I119. A commenter suggested changing the requirement to notify the town or city nearest the mine site by also allowing the regulatory authority to notify the municipality in which the coal mine is located. This language is consistent with the Act so the comment has been accepted. The regulatory authority shall notify the municipality regarding its intention to allow release of bond liabiltiy at least 30 days prior to the release.

10. Strong objections to proposed Section 807.11 (d) through (h) were received from a number of commenters representing mining industry, State, citizen and surety industry interests. In addition to the general lack of clarity and confusion caused by the proposed rules, mining industry commenters objected to the different procedures applicable to a hearing depending on whether it was requested by a permittee, in which case it was a "legislative-type'' hearing, or an "objector,'' in which case it was adjudicatory. Citizen commenters objected to the prospect that once they had waived their opportunity for a hearing, the permittee could then request a hearing from which "affected persons'' might be excluded. Each objection was well-taken and led to a major rethinking of the procedural elements of the Section. The initial text was based on a effort to give effect to every provision of Section 519 of the Act, but created confusion and unfairness by establishing different procedural rights for different parties. In rewriting the Section, the Office began with two fundamental assumptions drawn from the Act: (1) every T3affected person and the permittee have an equal right to an adjudicatory hearing if requested (Section 519(d) and (f)) and (2) a hearing requested by an affected person must be granted before the bond is released (Section 519(f)). Based on these assumptions, the Office reconstructed a procedural scheme which attempts to treat all parties equally and fairly, while adhering as closely as possible to the time limits for action imposed by Congress.

{15121}The revised scheme preserves the opportunity for filing objections and requesting a public hearing, but separates them in the sequence of events. The time for filing comments is limited by the 30-day requirement of the first sentence of Section 519(f) of the Act (30 CFR 807.11(c)). A request for an informal conference must be filed at the same time, provided the regulatory program contains an option for such a conference (30 CFR 807.11(c) and (d)). Within 60 days after receipt of a completed application for release (the date when the proof of publication of the four weekly notices is received by the regulatory authority), or 30 days after the close of the comment period, the regulatory authority will notify the parties of its decision to release the bond (30 CFR 807.11(f)(2)). If an informal conference procedure is provided in the regulatory program, then certain flexibility in the scheduling is allowed for holding the conference since such a conference might not be requested until the last day for the regulatory authority to give notice to the conference, conduct the conference, evaluate comments, make its decision and give notice to all interested parties. Limits on this time period will be left to the development of each regulatory program (30 CFR 807.11 (e) and (f) (3)).

700 After the decision of the regulatory authority, action which would allow the release of some or all performance bond liability shall be nothing more than a proposed release until affected persons have had an opportunity for a public hearing as required by Section 519(f) of the Act and 30 CFR 807.11(f)(5)(ii) and (g). If such a hearing is requested, it shall be adjudicatory, conducted in accordance with the procedures in Section 519(h), and commenced within the time and at the place required by Section 519(f) of the Act (30 CFR 807.11 (g) and (h)). The Office believes that this scheme is the most reasonable response it could devise to meet the valid concerns of the various commenters, within the framework of the Act.

A few suggestions in the comments were rejected. A request to require the regulatory authority to respond to specific requests for findings of fact and conclusions of law proposed by parties at the close of a hearing was not accepted. Such a procedural rule, while generally desirable, was not considered appropriate for this rulemaking. For hearings under Federal programs or the Federal lands program, such a requirement would be appropriate for consideration when the procedures of the Office of Hearings and Appeals are proposed. Under State programs, such matters are properly left to the discretion of the hearing authority. Also rejected was a request that the period for inspection and evaluation continue until 30 days following the close of the public comment period. While there may be advantages to such an extension, Congress has not allowed such an extended period. The period provided for in 30 CFR 807.11(d) does not require the inspection to be completed until 30 days after the receipt by the regulatory authority of the permittee's proof of publication of the newspaper notices. This should allow the public an opportunity to participate in the inspection if they act quickly to contact the regulatory authority.

SECTION 807.12 Criteria for release of bond.

SECTION 807.13 Schedule for release of bond.

1. Sections 807.12 and 807.13 of the proposed regulations have been rewritten and combined due to numerous comments concerning criteria and schedule for bond release. The alternative to rewriting and combining these two Sections was to attempt to make revisions within the framework of the proposed regulations based upon those comments which were accepted. However, the number and substance of the comments required that the Office generally rethink the overall content of the Sections, and accordingly it was necessary to rewrite them in order to properly organize and structure the regulations. As rewritten, these Sections are based on the concept that the permit area may be broken down into subareas and that these areas may be bonded incrementally during the term of the permit. Bond release also may be made in increments to allow partial release of the bond liability after the accomplishment of specific reclamation stages on the incremental areas. Bond liability on any incremental area is not fully released however, until the third reclamation phase is accomplished, at which time the acreage is deleted from the total permit area. The important concept is that while the filing and release of bond liability may be incremented, all the bond liability applicable to a permit extends to all acreage within the permit area. The amount of the bond is calculated on the basis of costs and not directly on acres. Amounts of the bond are released as reclamation phases are accomplished and remaining costs are correspond ingly reduced, but any bond liability on a sub-area remaining at any time is available to deal with the entire permit area. After the acres are released from the permit area as provided for following reclamation phase III, there is no further liability for those acres under the remaining performance bond liability applicable to that permit. Any remaining liability would only apply to areas remaining within the permit.

The basis for extending liability to the entire permit area is that until all mining and reclamation activities are completed, the success of reclamation in achieving the required performance standards cannot be fully determined with respect to the protection and restoration of the hydrologic system. As mining and reclamation operations progress, the size of the affected area within the permit area increases. While these operations may be staged or done in increments across the permit area, the impact on both surface and ground water flow systems with regard to water quality and quantity is cumulative and may not be fully developed until mining operations have reached their fullest extent within the permit area.

2. The following represent the major concerns expressed in the comments on Sections 807.12 and 807.13 of the proposed rules.

A few commenters requested the mandatory release of portions of the bond according to the schedule in the regulations. These comments could not be accepted since the Act specifically states that the regulatory authority may release portions of the bond after it has determined that the required reclamation phase has been accomplished, but must retain such liability in effect as would be necessary to complete any reclamation, restoration, or abatement work needed to comply with all requirements. This provides the regulatory authority with discretion in assessing the cost and degree of difficulty to complete any remaining reclamation, whether pollution is occurring or is likely to occur and the cost of abating such pollution, as required in Section 519(b) of the Act.

{15122}Since this review is specifically required by the Act, the bond release schedule and percentages cannot be made mandatory upon the regulatory authority. The requirement that the regulatory authority retain sufficient liability to complete remaining work is mandated by Section 509(a) of the Act, however.

3. Many commenters requested specific language allowing partial release of bond below the $10,000 minimum as stated in the proposed regulations. These comments were accepted and included in the rewritten regulations to conform with the incremental bonding provisions and the schedule for release of bond in accordance with the three major reclamation phases contemplated by Section 519(c) of the Act.

4. Many commenters requested clarification or deletion of the 25 percent release schedule set forth in Section 807.13(b) of the proposed rules. The regulations have been rewritten to clarify the mechanism for calculating the amount of bond to be released from each reclamation phase. As written the regulations in Section 807.12(b) establish three reclamation phases to define the periods when a permittee may seek release of bond liability. These correspond to the release of bond schedule established in Section 519(c) of the Act. The regulatory authority may release an additional 25 percent of the total bond liability pertaining to the area for which the release is sought, after revegetation has been established in accordance with the performance standards and approved reclamation plan. This provides that, at a minimum, 15 percent of the total bond will be retained until all surface mining and reclamation activities is determined.

As previously discussed, the effects of mining and reclamation are cumulative with regard to the hydrologic system, so that the remaining bond liability will be applicable to the entire affected area within the permit area to ensure the success of the reclamation work in protection of the hydrologic system.

5. A few comments regarding the bond release criteria suggested deleting the one-year release schedule requirement. These comments were accepted and the regulations changed to allow bond release applications to be submitted in accordance with a schedule approved as part of the reclamation plan submitted with the permit application, after completion of a reclamation phase on an approved area for the incremental release of bond liability.

6. One commenter suggested deleting the topsoil replacement from the regrading requirements for the 60 percent release schedule of Section 519(c) of the Act. This comment was not accepted since spreading topsoil is a grading operation which should be approved for the proper depth and distribution of the topsoil prior to vegetating. The inspection for bond release will determine whether the topsoil has been properly spread.

7. A commenter suggested adding "planting'' to the 60 percent schedule. This comment was not accepted since planting operations are distinct and possibly not coincident with regrading. The regraded topsoil should be approved prior to the planting and reveg etation operations.

8. A few commenters suggested including criteria for evaluating revegetation in the bonding regulations. These comments were not accepted since such criteria are included in the performance standards. The bonding regulations need only refer to these standards, not reiterate them.

9. A few commenters suggested changing the release schedule from 60, 25, 15 to 40, 20, 10, 10. These comments were not accepted since the Act, in Section 519(c), provides that up to 60 percent may be released after backfilling and regrading, based on the discretion of the regulatory authority on a case-by-case review.

10. A few commenters suggested adding language in the criteria referring specifically to other laws and regulations. It is not always possible to refer throughout the regulations to other laws and other regulations. However, the bonding regulations refer, where appropriate, to the permit requirements, performance standards, requirements, of the Act.

11. A few commenters suggested changing the requirements for impoundments to "silt dams as impoundments.'' This was not acceptable since the resulting definition would be too restrictive. Many impoundments resulting from coal mining practices, such as treatment facilities, require maintenance and protection against failure.

12. A commenter suggested adding language to the criteria for release of bond specifying compliance with all requirements of the Act. The statement of liability under the performance bond addresses the requirements.for compliance with the Act and regulations and need not be stated again. Therefore, this comment was not accepted.

13. A commenter requested clarification regarding when the five-year period of responsibility begins. This comment has been accepted and the liability period clarified in the regulations.

14. A few commenters requested changing the standards for runoff quality for drainage from the revegetated area as proposed in Section 807.12(e)(2)(ii). These comments could not be accepted since treatment facilities must be maintained until the runoff from the permit area will not degrade the quality of the receiving stream below established stream quality standards.

15. A commenter suggested that the criteria for release did not adquately address the protection of the hydrologic system required in the Act and the performance standards. This comment has been accepted in that the rewritten rules provide the mechanism to retain adequate bond liability for this concern as determined by the regulatory authority (30 CFR 807.12(d)).

16. In response to comments regarding the problems which might arise out of the failure by the permittee or third parties who made commitments under 30 CFR 816.133 or 817.133, 30 CFR 807.12(d) has been rewritten to include a special provision requiring the regulatory authority to evaluate the additional costs it might incur in case of forfeiture and to retain such liability as may be necessary to cover those costs. Unlike other performance standards, the performance standards for revegetation (30 CFR 816.116 and 817.116) contain a special exception for alternate post mining land-use plans approved by the regulatory authority. The exception allows permittees to meet a less stringent revegetation test for reclaimed areas that will be covered from the elements within two years following completion of topsoiling. However, if the approved alternate land use is not implemented within the two years, it becomes necessary to comply with the full scale standards generally applicable to revegetation. Should the permittee or third parties default in their commitments under the alternate approved plan, and fail to obtain a permit revision under the Act, the regulatory authority would have to forfeit the bond and complete reclamation. Reclamation would require achieving full compliance with the revegetation standard, thereby resulting in greater costs than those anticipated by the permittee for the preparation of a development site.

SUBCHAPTER J -- BOND AND INSURANCE REQUIREMENTS FOR SURFACE COAL MINING AND RECLAMATION OPERATIONS, 30 CFR PART 808 -- PERFORMANCE BOND FORFEITURE CRITERIA AND PROCEDURES Part 808 adopts criteria and procedures for forfeiting performance bonds and determining the forfeiture amount as required by Sections 102, 201, 501, 503, 504, 509(a), and 519 of the Act. One commenter suggested that only those persons with valid legal interests should be able to petition for bond forfeiture. The procedures allowing petitions for bond forfeiture have been deleted. The regulation requires the regulatory authority to forfeit under certain circumstances, and allows discretion in initiating forfeiture in other circumstances. The regulatory authority may consider comments and petitions from persons with any interest in its decision-making process. If the regulatory authority refuses to forfeit a bond under circumstances where forfeiture is mandatory, any person with standing under Section 520 of the Act may sue to compel the regulatory authority to comply with the regulations and the Act. Therefore, since the Act does not require citizen participation in the forfeiture decision, the petition process in the proposed rules has been deleted.

SECTION 808.11 General.

1. Section 808.11 contains the general provisions for bond forfeitures. Section 808.11(a) requires the regulatory authority to forfeit all or part of a bond according to the criteria set forth in Section 808.13.

A commenter suggested requiring the regulatory authority to forfeit all of a bond in order to assure appropriate funding for reclamation. The Act, in Section 509(a), provides that the amount of a bond shall be sufficient to assure completion of the required reclamation work. This, in some cases, would not require forfeiture of the entire bond, especially where all of the area had not been affected or where some reclamation had been accomplished. 2. There were several comments directed at Sections 808.11(a) (1) and (2) of the proposed regulations, which had listed conditions under which forfeiture proceedings shall commence. The commenters objected to these provisions because of the redundancy with Section 808.13(a). The suggested revision was accepted and the deletions made in the final regulations. Therefore, the regulations were written to allow the regulatory authority to either forfeit the entire bond, or set the amount of bond forfeiture according to the cost of the reclamation work.

3. Several commenters suggested that the regulatory authority should have more flexibility in determining whether or not a bond should be forfeited. Although the regulations in Section 808.11(a) mandate bond forfeiture action by the regulatory authority under the conditions set forth in Sections 808.13(a) and 808.13(b), the regulatory authority has the discretion to withhold forfeiture if a binding compliance schedule is accepted by the permittee. It is always desirable to get the permittee or surety to comply with his reclamation plan if it is at all possible, because the cost to the regulatory authority is usually in excess of what it would cost a permittee or surety, as discussed previously in Section 805.11(b). Moreover, reclamation by the regulatory authority may be delayed for many years for a variety of reasons relating to collection upon the bond or contracting requirements to accomplish the reclamation. Therefore, this section provides an incentive for the permittee or the surety to come forward and agree to a compliance schedule, and allows the regulatory authority to engage in that option rather than compelling it to forfeit. The regulations were changed to include the surety in the agreement to secure its liability, as recommended by three commenters.

SECTION 808.12 Procedures.

1. Section 808.12 specifies procedures which the regulatory authority shall follow prior to bond forfeiture, in the event forfeiture of the bond is required by Sections 808.11 and 808.13. A commenter recommended that Section 808.13 be made applicable to Sections 808.11 and 808.12 because it states the specific criteria for forfeiture. This suggestion was accepted and incorporated into the regulations.

2. The procedures for bond forfeiture in the proposed rules provided that the regulatory authority send written notification to the permittee and, if it is a surety bond, to the surety, of the determination to forfeit and the reasons for such forfeiture. A few commenters suggested sending written notification to the permittee and surety, if applicable, and eliminating the question of receipt of notification. This suggestion was accepted and incorporated into the regulations. Several commenters suggested that the regulatory authority send written notification of the intent, instead of the determination to forfeit a bond, giving the permittee the opportunity to come forward with a compliance schedule. This step is unnecessary, for it would only cause delay and would not provide the permittee with any more rights than as presently written. The notice of forfeiture does not foreclose an opportunity for the permittee and regulatory authority to sign a compliance agreement, but it clearly puts the permittee on notice that agency action has been taken. A few commenters suggested giving the permittee 15 days after receipt of notification to set up a compliance schedule to correct a violation. There is no clear advantage to defining a time period, and, in fact, this could hinder the regulatory authority and permittee in setting up a compliance schedule. 3. Section 808.12(a)(2) requires the regulatory authority to advise the permittee and the surety, where applicable, of such rights of appeal that might be available. The surety was included, as recommended by several commenters. After notice is given in accordance with Sections 808.12(a) (1) and (2), Sections 808.12 (a)(3) and (b) allow the regulatory authority to proceed with collection on the bond as provided by law. A forfeiture by the regulatory authority is a final agency decision upon which an action for collection may be based, unless a stay of collection is obtained from an administrative or judicial reviewing authority as provided by applicable State or Federal law for such administrative actions.

4. Section 808.12(a)(4) requires the regulatory authority to defend any appeal that is filed. Several commenters recommended that this section be deleted because they allege it would require the regulatory authority to defend all actions, significant or not, and waste the regulatory authority's time. The Office believes it is necessary for the regulatory authority to pursue all appeals in order to assure that appeals are not neglected and rights of appeal not abused.

5. Section 808.12(c) received opposition from one commenter who suggested that the forfeited bond should be applied only to the bonded area. In response, a sentence was added to Section 808.12(c).

SECTION 808.13 Criteria for forfeiture.

1. Section 808.13(a) identifies four areas where forfeiture would be mandatory. Several commenters suggested giving the regulatory authority more flexibility to determine forfeiture by changing "shall'' to "may''. The Office believes the regulations will give the regulatory authority sufficient flexibility as provided in Sections 808.13(b) and 808.11(b) and, therefore, the use of the word "shall'' is the preferred language.

2. The first set of requirements for which forfeiture is required are standard to the bonding industry. In those four circumstances the bond shall be forfeited because the permittee has indicated an inability to comply with the Act in a major respect, unless it is possible to reach some compliance agreement and schedule with the operator. Some commenters suggested changing Section 808.13(a)(2) so that bond forfeiture would be mandatory only when the permittee has substantially failed to conduct surface mining and reclamation in accordance with the regulations. Because the permittee is given the chance to set up a compliance schedule to correct violations, this addition is not necessary. One commenter claimed that revocation of the permit should not dictate bond forfeiture. In response, Section 818.13(a)(3) has been amended to include the stipulation that the regulatory authority shall forfeit the bond if the permit has been revoked, unless the permittee or surety, where applicable, assumes liability for completion of reclamation work under a compliance agreement. This alternative is desirable because the permittee or surety can do the reclamation work, at much less cost and generally in less time than the regulatory authority, as previously discussed.

{15124}Section 808.13(a)(4) was added in response to comments which suggested that bond forfeiture should be required if the permittee fails to comply strictly with the compliance schedule. This provision will deter the regulatory authority from agreeing to successive compliance schedules, while the operator continually violates the conditions of each schedule.

3. Section 808.13(b) provides for discretionary forfeiture of a bond. These provisions reflect problems that have occurred with bond forfeiture among the States. They require both a business failure and the inability of the permittee to comply with the Act. Some commenters suggested a rewording of Section 808.13(b)(1), because bonds may be sound even though the permittee has failed in business. The commenters also pointed out that having a petition of bankruptcy filed against the permittee does not mean that the permittee is bankrupt. In response, Section 808.13(b)(1) has been rewritten to eliminate bond forfeiture if the permittee has a petition for bankruptcy filed against him, even though a bankruptcy proceeding may not necessarily mean the permittee's bond is insecure. This Section allows the regulatory authority to use bankruptcy or other failure as a basis for agency action if deemed necessary in order to protect the regulatory authority's interests. A few commenters suggested deleting Section 808.13(a)(2), because of the above discussion. Again, the regulatory authority may use this as an indication that the obligations on the bond are potentially insecure, but the provision does not make forfeiture mandatory. A provision was added to Section 808.13(a)(3) to allow a permissive bond forfeiture only after the permittee has been given an opportunity to demonstrate or prove that the operation will be conducted in compliance with the Act. This provision places the burden on the permittee to prove that he can comply even though either of the conditions in Section 808.13 (b)(1) or (b)(2) have occurred. The possibility of a bond forfeiture gives the regulatory authority a certain amount of leverage to compel a successor in interest, such as a receiver in bankruptcy, to comply with the legal requirements imposed upon the permittee for the operation.

SECTION 808.14 Determination of forfeiture amount.

1. Section 808.14 contains two bases for determining the forfeiture amount. A few commenters suggested changing "shall'' to "may'' in order to give the regulatory authority more flexibility in determining the amount of forfeiture. Because the regulatory authority may choose to forfeit either the entire bond or a portion sufficient to cover the cost of reclamation, the Office believes the word "shall'' is not restrictive and, therefore, has not changed the regulation. A few commenters suggested Section 808.14 be deleted, because it is too difficult to determine the exact amount of a bond necessary for reclamation, and, by requiring the entire amount of the bond to be forfeited, the regulatory authority would be assured of having sufficient funding for required reclamation. These comments were not accepted because the necessary reclamation work involved may require only a portion of the bond amount and the amount is left to the discretion of the regulatory authority.

2. Section 808.14(b) provides a mechanism that may be of greater practical benefit to the regulatory authority when it must act expeditiously. This Section allows the regulatory author ity to forfeit the entire amount of the bond to which liability is attached to complete the required reclamation work. The proposed regulations required the regulatory authority to return the unused portion of the bond to the permittee or surety. This provision received opposition from several commenters because they felt it denied States the right to keep the remainder of the bond, which could be used as a reclamation fund or as a method to penalize the permittee for not meeting the conditions of the bond. Another commenter suggested that remaining funds after reclamation be retained until the standards for measuring revegetation have been met, thus insuring proper reclamation. A few commenters suggested eliminating Section 808.14(b) because forfeiting the entire bond would be an unfair penalty for the permittee and surety. In response, the requirement that the regulatory authority return the remainder of the unused bond was deleted. Therefore, as adopted Section 808.14 allows the regulatory authority to either forfeit all or part of the bond and return the unused portion of the bond if they so desire.

Surface Coal Mining and Reclamation Operations, Permanent Regulatory Program; SUBCHAPTER J -- BOND AND INSURANCE REQUIREMENTS FOR SURFACE COAL MINING AND RECLAMATION OPERATIONS, 30 CFR PART 809 -- BONDING AND INSURANCE REQUIREMENTS FOR ANTHRACITE SURFACE COAL MINING AND RECLAMATION OPERATIONS This Part sets forth the general requirements for bonding and insuring anthracite surface coal mining and reclamation operations for States which regulated anthracite coal mining with environmental protection standards in existence as of August 3, 1977. Section 529 of the Act, from which the authority for this Part is derived, is believed to only cover and thereby, exempt, Pennsylvania from certain provisions of the Act and this subchapter. As a result, this Part is only applicable to persons engaging in or seeking to engage in anthracite surface coal mining and reclamation operations in Pennsylvania.

SECTION 809.12 Requirements.

Section 809.12 sets forth the requirements for bonding and insuring anthracite coal mining operations in Pennsylvania. Basically, Section 529(a) of the Act requires that all anthracite operations be subject to the general bonding provisions in Sections 509 and 519 except for the period of revegetation responsibility and the specified bond limits. In those cases, Pennsylvania State law, regulations and administrative guidelines will apply. Section 809.12(a) provides the statutory exemption and directs the Pennsylvania regulatory authority to apply its laws, regulations, and guidelines to bonding limits and liability periods for anthracite operations.

There were no comments received in reference to the section, and, therefore, the regulations remain unchanged.

SUBCHAPTER K -- PERMANENT PROGRAM PERFORMANCE STANDARDS The general structure and intent of this Subchapter, together with an explanation of alternative structures considered, is contained 43 Federal Register 41734 41735. That discussion is hereby incorporated by reference in this preamble.

As originally proposed, Subchapter K contained three additional Parts_811, 812 and 821. (See 43 Federal Register 41873-41922, September 18, 1978.) Part 811 has been deleted because it was redundant. All its substantive provisions are contained in Subchapter C. Part 812 was an index which has been deleted in response to comments, which requested a broader alphabetical subject index. Such an index has been prepared as an appendix to these regulations. OSM expects this appendix to be published in the Federal Register shortly after publication of these rules. No substantive change is intended by the deletion of Parts 811 and 812.

{15125}Part 821 would have provided an exemption procedure for mines in Alaska. This Part was deleted because OSM felt that the special problems of Alaska would be adequately resolved under Subchapter C by application of the "State window,'' if a State program is approved, or by consideration of Alaska's unique climatological and geological problems by the Secretary, before a Federal program is implemented. In any case, the statutory authorization for the variances proposed by Part 821 will have expired before or shortly after a permanent regulatory program is adopted for Alaska. Under Section 708(d) of the Act, variances could not be granted by the Secretary after August 3, 1980, at the latest.

Many comments were received suggesting that OSM avoid specific design standards and instead adopt regulatory goals and allow operators to achieve the goals as they choose. These commenters criticized what they sometimes called the "cookbook'' approach. In each of the performance standards for which the point was specifically made, the preamble addresses the specific issue. The discussion at this point addresses the issue in general. To a substantial degree, the regulations as proposed, and to a larger degree as adopted, in fact establish goals rather than tight design standards. Moreover, when design standards are adopted they usually provide substantial flexibility to the operator.

For example, the standards in 30 CFR 816.45 816.47 and 817.45 817.47 for controlling sedimentation go beyond merely establishing effluent limitations. They do so because effluent limitations are a less successful regulatory tool for constantly moving coal mining operations than for fixed industrial plants. In requiring certain operational practices beyond the effluent limitations, the regulations do not adopt a rigid "cookbook'' approach but prescribe a series of alternatives that leave the operator broad flexibility to design an operational sediment control system to suit the particular site and the operator's capabilities.

Section 816.45 explicity states the regulatory goals and lists the major designs and operational techniques which an operator can adopt to reduce the need for treatment. Section 816.46 requires a final sedimentation pond but grants broad flexibility to the operator to design the pond efficiently in relation to related sediment control practices. For a more complete discussion of the flexibility and efficiency of sediment control requirement, see the Preamble for Sections 816.45 816.47 and Sections 817.45 817.47.

An example of design standards with less flexibility than sediment control are the regulations dealing with head-of-hollow and valley fills. Nevertheless these regulations contain more flexibility as adopted than as proposed, while at the same time providing equivalent public safety and environmental protection. As proposed, there were to be essentially two different construction techniques for excess spoil. The first was the fill constructed with a rock underdrain and all water diverted off or around the fill. The second was a fill constructed with a rock chimney core and water diverted to and through the rock core. As adopted, the regulations provide for four different construction types: (1) for flatter areas, only stability and sediment control goals are prescribed and the engineer can design any structure that meets those goals; (2) the rock underdrain type; (3) the rock chimney core type; and (4) a dumped, homogeneous fill made of at least 80 percent durable rock.

The Office believes that design specificity is necessary in many places, especially where risk of injury to public safety or the environment is the greatest. For instance, in the design of fills on steeper slopes, failure is a real risk and could be such a catastrophic event that conservative, specific design standards are necessary. Fills must be designed and constructed to last perpetually, since maintenance (after bond release) will not necessarily be provided, as in the case of public highway fills. Also, the state-of-the-art in fill design has been evolving slowly, with most engineering innovation displayed only in the last couple years. On flatter slopes failure is neither such a risk nor as serious an event should it occur; therefore increased flexibility is appropriate.

On the other hand, specific design requirements may impede the operator's ability to reduce to a minimum the cost added to his operation by the regulations and may impede innovation. The Office believes that the flexibility contained in the regulations adopted reduces these adverse effects, and that any impediment to innovation is reduced to neglible by the experimental practices regulations at 30 CFR 785.13. Thus, the question of "goals versus design standards'' is one of balancing the need for increased certainty of protection against increased flexibility for the operator. OSM has in almost all cases supplied substantial flexibility even where design standards are provided. The Office believes that the balance struck by the regulations adopted is correct and will provide a basis for the protection of public health and safety and the environment while recognizing the importance of an efficient and productive coal industry.

SUBCHAPTER K -- PERMANENT PROGRAM PERFORMANCE STANDARDS, 30 CFR PART 810 -- PERMANENT PROGRAM PERFORMANCE STANDARDS GENERAL PROVISIONS This Part is intended to provide an introduction to Subchapter K. It sets forth the general purpose of the Subchapter, the responsibilities of persons and agencies in connectionn with the Subchapter and its general applicability. To the extent more specific or contradictory provisions are found in Parts 815 828, those other provisions shall control.

SECTION 810.1 Section 810.1 explains that Subchapter K applies to all coal exploration and mining under regulatory programs. The differences in language from the version proposed September 18, 1978 (43 Federal Register 41873) are intended for clarification only.

SECTION 810.2 Section 810.2 explains the purposes to be achieved by the requirements of Subchapter K. All changes made in this Section since the version proposed in the September 18, 1978 Federal Register were made in response to comments and are discussed below.

SECTION 810.3 Section 810.3 states that the role of the Secretary of the Interior under the Act is to approve or implement performance standards and design criteria for regulatory programs. This role is explained in Sections 503(b) and 504(a) of the Act. The importance of the differences between performance standards and design criteria is discussed in the preamble discussion for Section 701.11(e) relating to preexisting, nonconforming structures, and the reader is encouraged to review that discussion for a fuller understanding of this Subchapter.

SECTION 810.4 Section 810.4 enumerates the roles of the Director, the State regulatory authority and the person conducting the regulated activities. The language is slightly changed from the version of Section 810.4 proposed September 18, 1978. The Section as promulgated eliminates unclear references to the Assistant Secretary, Energy and Minerals. OSM felt that mentioning that officer without setting forth the relationship of the Director to the Secretary or other Interior Department offices was more misleading than it was helpful. All changes in this Section are clarifications of the general introductory language.

700 A section-by-section analysis of concerns raised by the public comments and the review of the proposed regulation conducted in response to those comments follows.

{15126}A commenter suggested that 810.1 be revised so that Federal lands governed by Section A of the Federal Coal Leasing Amendments Act of 1975 (90 Stat. 1085) would be exempt from the performance standards of Parts 816 and 817. This revision was unnecessary since the issue is dealt with in the Federal lands program, Subchapter D.

One commenter felt that Section 810.2(a) was superseding the Federal Coal Mine Health and Safety Act of 1969. Section 702(a) of the Act provides that the Act not be construed to supersede or modify the Federal Coal Mine Health and Safety Act of 1969. Section 515(b)(12) of the Act gives OSM specific authority to be concerned with "the health or safety of miners.'' Section 810.2(a) does not supersede the Federal Coal Mine Health and Safety Act of 1969, but complements it.

A commenter contended that Section 810.2(h) was without statutory authority and should be deleted. This contention was rejected. Section 810.2(h) is authorized by Section 522(a)(3)(B) of the Act. However, Section 810.2(h) has been revised to implement all of the wording in Section 522(a)(3)(B) of the Act.

Several comments suggested that a new paragraph be added to Section 810.2 which assures that a balance will be reached between protection of the environment and agricultural productivity and the nation's need for coal. This suggestion was accepted. Section 102(f) of the Act states that one of the purposes of this Act is to strike a balance between protection of the environment and agricultural productivity and nation's need for coal as an essential source of energy. The addition of paragraph (j) to Section 810.2 helps more completely characterize how this Subchapter seeks to accomplish what Congress intended.

A commenter felt that Section 810.3 should be revised, since coal exploration operations on Federal lands are not governed by the Act. Coal exploration operations on Federal lands are governed by Section 4 of the Federal Coal Leasing Amendment Act of 1975 (90 Stat. 1085). The issue raised by the commenter is already covered in the Federal lands regulations, Subchapter D. A revision of Section 810.3 would not add anything to the regulations, since this Subchapter does not, by its terms, apply on Federal lands. The extent to which these standards will apply on Federal lands is set forth in Subchapter D. Accordingly, the commenter's request was rejected.

Concern was expressed that Subchapter K does not specify whether operators must comply with both general performance standards (Parts 816 and 817) and applicable special standards (Parts 818 828). It was noted that the interim performance standards do have such a specification at 30 CFR 716.1(a)(2). In order to avoid ambiguity in interpretation of the permanent program performance standards and to ensure that all operations comply with all relevant performance standards, Section 810.11 was added to specify that Parts 816 and 817 apply to any operation unless specifically exempted in Parts 818 828.

SUBCHAPTER K -- PERMANENT PROGRAM PERFORMANCE STANDARDS, 30 CFR PART 815 -- PERMANENT PROGRAM PERFORMANCE STANDARDS COAL EXPLORATION Part 815 contains minimum performance requirements applicable to persons engaged in coal exploration which substantially disturbs the natural land surface. This Part is closely related to Part 776 (Coal exploration notices and approvals) and the definitions of "coal exploration'' and "substantially disturb'' contained in Section 701.5. The reader should review the preamble discussion of those provisions, as well as the language of those regulations, for a complete understanding of the permanent program's effect on coal exploration.

The purpose of this Part is to ensure that coal exploration is conducted in a manner which results in minimum environmental harm. OSM has attempted to balance the need to allow exploration to proceed so that the Nation's energy needs and the Act's are balanced, against the risks of environmental damage. Under the Act, exploration will continue to occur on lands where mining is prohibited under Subchapter F. Since many lands unsuitable for mining are fragile, special precautions to preserve fragile resources are required. The brevity of this Part reflects OSM's intention to focus its regulations only on those activities which present the greatest potential risk to the environment and to frame the final rules in terms of general applicability.

One commenter suggested that Part 815 be deleted entirely on the grounds that Section 512(a) of the Act states that exploration is to be conducted under "exploration regulations issued by the regulatory authority.'' The commenter argued that OSM is not the regulatory authority at this stage of the implementation of the Act, and therefore this Part is beyond OSM's authority. OSM disagreed with this commenter's argument, so Part 815 has not been deleted. Section 502(b) of the Act requires the Secretary to promulgate regulations "establishing requirements for . . . approval of State programs.'' Section 512(a) requires that each State's Federal program contain exploration requirements, including "at a minimum . . . provisions for reclamation in accordance with the performance standards of Section 515 . . . ,'' OSM has promulgated this Part to set forth the minimum requirements which must be contained in a State or Federal program before it will be approved. The regulations of a regulatory authority will be enforceable under the Act, once they have been approved by the Secretary.

Other commenters contended that OSM adopted a "cookbook'' approach in the proposed regulations that would result in greater harm to the environment than would occur if its regulations did not have to be met. These commenters recommended an "engineered option'' approach whereby the performance standards can be met by the operators in any way they choose just as long as the standards are met. A related comment requested that this Part only contain what is required under the Act. OSM decided that Section 512(a) of the Act requires the Federal government to indicate, in these regulations, how the requirements of the Act are to be met by States in their program submission, and by persons engaged in coal exploration. While general standards have been promulgated where appropriate (for example, 815.15(f)(2)), in instances where enforcement would be aided or environmental risk reduced, more specific requirements have been enacted (for example, 815.15(k)). Also see the preamble discussion to Section 701.11 of these rules. OSM does not believe Part 815 exceeds either its authority or its responsibilities under the statutory scheme.

One commenter requested that the requirement of this Part should reflect regional climatological differences. The final regulations of this Part have not been changed in response to this request, since OSM believes that the authority contained in Section 731.13 and in Part 736 to consider regional differences will allow each State and Federal program to adequately reflect special needs resulting from unique climatological or geological factors.

Another commenter felt that under the regulations, this Part did not allow sufficient flexibility. In responding to these comments, OSM has attempted to frame the requirements broadly, so that they are of general applicability, and permit those engaged in exploration to gear their activities to the needs of the operation and still achieve the environmental protection necessary to fulfill the Congressional intent of Section 512 of the Act. See, for example, Section 815.15 of the final regulations on "environmental performance standards for coal exploration.'' {15127}Several comments suggested that OSM consider applying the performance standards of Part 815 only to operations in which over 250 tons would be removed. OSM was offered no technical basis to show that the environmental damage resulting from exploration which removes less than 250 tons, is any less than the damage from exploration where more coal is extracted. In fact, Section 512 of the Act makes no distinction between the performance standards to be applicable to over-250-tons exploration and under-250-tons exploration. The only difference is whether one needs prior written approval from the regulatory authority before commencing operations. The final committee report on the Act also makes it clear that performance standards are to apply to operations under 250 tons (H. Rep. No. 95 218, p. 173).

700 SECTION 815.1 Scope.

Section 815.1 states the scope of the Part. The language has been modified from the proposed version (43 Federal Register 41878). In addition to non-substantive changes made for clarification only, the language has been revised in several significant ways. The limitation of the Part to activities outside a permit area has been deleted because, after revision of the rest of the Part in response to comments as discussed below, the standards were found in each case to have been included within the performance standards for mining. Since all those standards apply within the permit area, and since the language of Part 815 provided sound guidance to how those requirements might be read in an exploration context where the exploration was proceeding ahead of the mine cut, the limitation on the scope was deleted.

Several commenters felt that Part 815 should be applicable only to exploration operations which substantially disturb the natural land surface. These comments were accepted and the language of Section 815.1 was revised accordingly based upon the explanation in the final report which accompanied H.R. 2 and the plain meaning of Section 512 of the Act. This explanation clarified that the detailed regulations assuring compliance with the performance standards must apply to all exploration operations which substantially disturb the natural land surface. Section 815.1 was further modified to clarify that the performance standards in Section 815.15 were the minimum standards which exploration operations must follow and that the regulatory authority may further require that the operations comply with the performance standards in Part 816. OSM incorporated this additional wording into Section 815.1 to assure that exploration operations do not result in irreparable damage to the environment or imminent danger to the health and safety of the public.

SECTION 815.2 Objectives.

Because of the change in Section 815.1, paragraph (a) of Section 815.2 was also rephrased to consider only exploration operations which substantially disturb the natural land surface.

A commenter proposed that paragraph (b) of Section 815.2 be revised so that "environmental degradation'' need not be prevented during the conduct of coal exploration operations. This commenter asserted that only those environmental degradations which leave a permanent harm do "real damage.'' The Office rejected this proposal because serious environmental degradation can occur during, as well as following, coal exploration operations (Grim and Hill, 1974, pp. 17, 22, and 26). Moreover, since the main purpose of coal exploration is to document the commercial quantities of a deposit, activities undertaken during the process of exploration need to be considered as part of the total costs development (Pfleider, 1968, p. 29). By controlling environmental degradation during exploration, total reclamation costs can be better managed. Accordingly, the performance standards in Section 815.15 of the final regulations were developed to assure that degradation of environmental quality does not occur during coal exploration operations because of exploration activities.

Other commenters asserted that the special category and exemption for exploration of less than 250 tons should be eliminated because exploration of any size or amount can cause extensive environmental harm, especially in the steep slope areas of Appalachia. For these commenters, a ton limitation on the amount of coal removed does not necessarily reflect the size or intensity of a disturbance since a very small area causing little environmental harm or a very large area causing extensive harm are both possible with the removal of less than 250 tons. These commenters contended that any coal exploration operation should be required to first obtain written approval and abide by the same environmental standards for explorations removing more than 250 tons of coal. Other commenters contended that Part 815 fails to reflect the limitation contained in Part 776 which provides that written approval need be obtained only in operations in which more than 250 tons of coal are intended to be removed in any one location. The Office agreed that the issue was unclear and modified Section 815.11 so that it parallels the requirements of Part 776. The revision made to Section 815.11 clearly indicates that it is not the intention of the Office to require approvals of all exploration without regard to the 250 ton removal criterion required by Section 512(d) of the Act, but only if more than 250 tons of coal are to be removed from one location during exploration. However, Section 815.11 of the final regulations also clearly requires that all coal exploration operations, regardless of size, which substantially disturb the natural land surface shall comply with the environmental performance standards set forth in Section 815.15.

SECTION 815.11 General responsibility of persons conducting coal exploration.

Comments received on proposed Section 815.4 are discussed earlier in this preamble together with comments received on Part 776. Requirements proposed on September 18, 1978 as Section 815.4 were moved to 776. Section 815.4 has been deleted. The reader is referred to the preamble discussion on Sections 776.11 and 776.12 for further explanation.

Several commenters contended that Sections 815.11 and 815.4, as proposed, which provided that a person intending to conduct coal exploration operations file a notice of intent to explore, were beyond the scope of the Act. Other commenters objected to the requirement of prior notice of intent for exploration operations removing less than 250 tons on the grounds that coring programs are generally recognized to have minimal environmental impact. For these commenters, prior notice of such programs would entangle a relatively simple operation with no history of environmental damage in an involved regulatory scheme. The Office agreed the proposed regulation needs clarification. In order to clarify the proposed regulation and reflect the intent of the Act, the addition of the phrase "which substantially disturbs the natural land surface'' was included in the wording of Section 815.11(a) and (b). It should be noted however, that OSM believes that a core drilling program can cause substantial disturbance, which will require prior notification to the regulatory authority. By comparison, in most instances, aerial exploration alone will not cause the kind of disturbance requiring notification.

Several commenters contended that Section 815.11(a) of the proposed regulations did not reflect the limitation contained in Part 776 which provides that written approval need be obtained only in operations in which more than 250 tons of coal are intended to be removed "in any one location.'' Rather than limiting the criterion to a single location, proposed Section 815.11(a) would have enlarged the concept to "exploration area.'' OSM agrees and has deleted the term "exploration area'' from Section 815.11 of the final regulations. It was not necessary, as several commenters suggested, to amend Section 815.11 to include the words "in any one location'' because under the final wording of the sections referred to in Section 815.11(a), the area to be explored is designated in the notice of intention to explore required under Section 776.11 for operations involving removal of less than 250 tons and, in the case of operations removing more than 250 tons, Section 815.11(b) specifies "in the area described by the written approval from the regulatory authority.'' {15128}Several commenters contended that Section 815.11(b) of the proposed regulations would lead to undue interference in the process of coal exploration operations if "any agent or employee'' of the regulatory authority was given the authority to request from the person conducting the coal exploration operations the receipt or written approval of the regulatory authority for undertaking the activities granted under Section 776.12. Some commenters wanted proposed Section 815.11(b) amended so that the agent or employee of the regulatory authority would be required to present credentials to the person conducting coal exploration before being allowed to see the receipt or written approval of the coal explorer. The Office agreed with the above comments and has rewritten the requirements of proposed Section 815.11(b) in Section 815.13 of the final regulations so that the written approval to undertake activities granted under Section 776.12 will be "available for review by the authorized representative of the regulatory authority or the Office upon request.'' Authorized representatives of the regulatory authority do carry identification which the coal explorer can demand to see. It is not, therefore, necessary to amend the regulation to require presentation of such credentials.

Section 815.11(a) of the proposed regulations would have required an explorer to carry a receipt showing that the required notice of intention to explore had been filed. Some commenters contended that Section 815.11(a) of the proposed regulations was ambiguous as to what type of receipt from the regulatory authority would be required. Some commenters contended that the requirement of a receipt would add an unnecessary burden. These commenters argued there are various other means of establishing, by written documentation, that an operator has in fact complied with the notice requirement of the Act. Furthermore, these commenters contend that the proposed rule would have created a process which is tantamount to a permitting procedure because unless and until an operator receives a receipt, he or she presumably would not be authorized to commence exploration. Other commenters contended that unless the receipt required by proposed Section 815.11(a)(1) is an automatic response to the filing of a notice, the regulatory withholding of a receipt as a means to require prior written approval of exploration involving less than 250 tons of coal contrary to Section 512(d) of the Act. These comments convinced the Office that proposed Section 815.11(a)(1) was not clear. Accordingly, the proposed Section 815.11(a)(1) requirement that the person conducting coal exploration possess a receipt has been deleted. Section 815.11(a) of the final regulations requires only that the person conducting coal exploration in which 250 tons or less of coal are removed shall file the notice of intent required under Section 776.12 and shall comply with Section 815.15.

SECTION 815.15 Environmental performance standards for coal exploration.

The philosophy of Section 815.15 is that any person who engages in coal exploration activities, which substantially disturb the natural land surface must conduct such activities with the least resultant damage to the environment. To accomplish this purpose, Section 815.15 explains minimum performance standards and design requirements which shall be required of persons who engage in coal exploration activities. Since these are minimum and flexible standards, coal exploration activities may, at the discretion of the regulatory authority, be further required to comply with the applicable performance standards and design requirements of 30 CFR 816 828 from which these minimums are generally derived.

Many comments were received on the proposed version of these regulations. In the process of considering these comments the Office has deleted, added, and rewritten substantial parts of the proposed regulations on performance standards for coal exploration. It became necessary, for the sake of clarity, to reorganize and renumber the regulations proposed on September 18, 1978. The table below indicates how the proposed regulations were reorganized into the final regulations.

____________________________________________________________________________ Proposed Regulation Final Regulation 815.12(a) deleted. 815.12(b) 815.11(b). 815.12(c) 815.15(c)(1). 815.12(d)(1),(2),(3),(4),(5) 815.15(c)(2). 815.12(e)(1),(2) 815.15(d), (e). 815.12(f) 815.15(g). 815.12(g) 815.15(h). 815.12(h) 815.15(b). 815.12(i) 815.15(b). 815.12(j) 815.15(a). 815.12(k) 815.15(j). 815.12(l) 815.15(i). 815.12(m) 815.15(f). 815.13 815.17. 815.15(c)(3)(new). 815.15(c)(4)(new). 815.15(k)(new). ____________________________________________________________________________ Several commenters contended that Section 815.12 of the proposed regulations should be revised to apply only to coal exploration operations which remove more than 250 tons of coal. As discussed above in connection with Section 815.1, the language of Section 512 of the Act and the legislative history are clear in that the performance standards must apply to all exploration which substantially disturbs the natural land surface, no matter how many tons of coal are removed during or after exploration operations. Section 815.12 of the proposed regulations became Section 815.15 of the final regulations.

Proposed Section 815.12(a) has been deleted. Several commenters asserted that the requirement of proposed Section 815.12(a) of recording the coal removed in an exploration program that will not exceed 250 tons, seems needless since the projected total coal tonnage to be removed would be required as a part of the notice of intent to explore as defined in Section 776.11(a). These commenters asserted that so long as the coal tonnage is significantly below 250 tons and the proposed program is adhered to, the records required under proposed Section 815.12(a) of the proposed regulations would only burden the person conducting exploration with additional record keeping that would serve no useful purpose. Other commenters further remarked that in the case of more than 250 tons of coal being removed, the amount to be mined would be stated in the application for approval. Other commenters wanted to amend proposed Section 815.12(a) of the proposed regulation to require recording of coal removed "from a specific location'' during coal exploration, since cumulative amount as stated in the proposed regulation is ambiguous and restricts large exploration activities even when there is no damage to the environment. Adding "specific location'' to the regulation would stop mining under the guise of exploration. Other commenters contended that the requirement of proposed Section 815.12(a) that the operator record the "cumulative amount of coal removed during exploration'' is inconsistent with Part 776 of the regulations and Section 512(d) of the Act, which provide that written approval needs to be obtained only in operations in which more than 250 tons of coal are intended to be removed in any one location. These commenters argued that the cumulation requirement of proposed Section 815.12(a) and the use of an exploration area in Section 815.11(a) of the proposed regulations would circumvent the Congressional intent to establish a reasonable objective criterion of 250 tons and would tend to subject operators to inconsistent application of the 250 ton criterion, depending on the size of the area of exploration. Other commenters contended that difficulty will arise in trying to weigh each coal sample taken during a drilling program. These commenters alleged that excessive handling could adversely affect the coal quality analyses. Moreover, these commenters asserted that coal removed from a completed drilling program, even with as many as one hundred drill holes, would not exceed one ton, an amount far below the 250 ton limit. Requiring drilling operations to record the weight of coal removed would, according to these commenters, be unnecessarily burdensome. Other commenters argued that the amount of coal and the location from which that amount was removed are extremely sensitive types of information. If this information is available to the general public, it could affect the price of the subject tract and neighboring tracts. In addition, these commenters alleged that if a competitor knew the number and location of drill holes, and the amount removed from each hole, a simple calculation could determine the thickness of seams and, possibly, a close approximation of total reserves. This would substantially reduce the competitive edge of the company performing the exploration and would, for these commenters, be contrary to Section 512(b) of the Act. These commenters wanted proposed section 815.12(a) amended so that the amount of coal removed from each hole would be recorded and cumulated, but the operator would be required only to divulge whether the cumulative total of the operation is greater than or less than 250 tons, since any more detail would unnecessarily prejudice the competitive position of the operator.

{15129}OSM decided to delete proposed Section 815.12(a) from the final regulations based on the above comments and to be consistent with its decision to delete the term "exploration area'' from Section 815.11(a) of the proposed regulations. The reader is referred to the preamble discussion in Section 815.11(a) for the reasons "exploration area'' was deleted. OSM also decided to delete proposed Section 815.12(a) from the final regulations because the commenters convinced the Office that the record-keeping requirement is unnecessary, given the approval requirements of part 776. Merely limiting the record-keeping requirement to a "specific location,'' as suggested by some commenters, would not in itself stop mining under the guise of exploration. OSM believes that violations of Parts 776 and 815 are adequately addressed by Section 776.15(b) of the final regulations. The reader is referred to the preamble discussion on Section 776.15(b) for an explanation of the regulations covering violations of the coal exploration regulations contained in Parts 776 and 815. State regulatory authorities have, in the discretion given to them by the Act, the authority to require recording of the amount of coal removed, if they believe that it may help them prevent mining under the guise of exploration or for other legitimate purposes. 700 Section 815.15(a).

A few commenters contended that the proposed version of Section 815.15(a) (proposed as 815.12(j)) was extremely vague in requiring that no habitats of "unique'' value for fish and wildlife be disturbed. There was no definition of the word "unique'' and no guidance for the operator. The commenters requested that this section either be deleted or specify types of habitats which must be protected. The U.S. Fish and Wildlife Service "strongly recommends'' to OSM that the proposed Section not be changed. OSM decided to change the proposed regulation only to clarify its meaning. Therefore the final regulation expands the definition of "unique habitat'' by including a reference to 780.16(b) of the final regulations. Coal explorers are clearly required to conduct their exploration operations so as not to damage important wildlife habitats. Coal explorers should contact their regulatory authority if they need assistance in determining whether their area of coal exploration may contain unique or high value habitats. The regulatory authority is required by Section 779.20 to be in contact with Federal and State wildlife and land management and resource agencies for consultation in determining unique and high value wildlife habitats. The reader is referred to the preamble discussions of Sections 779.20 and 780.16 for further explanation of wildlife habitats.

Section 815.15(b).

A few commenters requested that Section 815.15(b) (proposed Section 815.12(h)) should be deleted or amended because there was no statutory authority for requiring environmental data gathering during exploration activities. Other commenters alleged that such a requirement is "unrealistic.'' Some commenters contended that exploration personnel are not generally biologists, soil scientists, hydrologists, or meteorologists, and are frequently totally unqualified to make studies in the areas required by the proposed regulation. These commenters concluded that any such studies performed by the exploration personnel would lack validity. Other commenters contended that if it was the intention of the proposed regulation that the person conducting exploration send a team of biologists, geologists, soil specialists, etc. into each exploration area, such a requirement is either unnecessary or redundant. These commenters contended that if a decision is ultimately made not to obtain a mining permit, it would be unnecessary for the detailed studies to be performed, and if a decision is ultimately made to apply for a mining permit, such studies as are required by 30 CFR 778 791 will provide the information required by the proposed regulation anyway. Other commenters contended that the proposed regulation was objectionable in that it requires the gathering of extensive environmental base data prior to any commitment, however tentative, by the operating company. These commenters pointed out that exploration may predate actual mining by decades, and quite commonly exploration is made with no immediate mining objectives. For example, a drilling project designed to provide guidance for an acquisition program. In these instances, the commenters alleged, it is inappropriate, premature and costly to accumulate details on such items as overburden acidity, hydrologic conditions, etc. These commenters concluded that if a coal exploration operation is contemplated to develop a coal reserve, it is the obligation of the mining concern to provide the requisite base data. However, it should remain the privilege of the operator to decide at what stage to gather this data.

Some commenters argued that the environmental data required by the proposed regulation would be entirely irrelevant to a deep mine or deep mine permit. It is, thus, pointless to require surface mine environmental baseline data for a deep mine prospect. Other commenters contended that the environmental monitoring effort should be made after exploration has determined whether or not an area has a reserve base sufficient to support mining. Some commenters wanted the proposed section amended so that the measurement of environmental characteristics would be at the regulatory authority's expense. The Office declined to accept those comments. It seems that the commenters do not fully understand the intention of the proposed regulation.

The proposed regulation would have required that environmental data be collected during coal exploration activities so that the explorer would be able to determine and minimize the environmental effects of the exploration activities, as well as to collect the data needed if a decision to apply for a permit to mine is reached. Part 815 is not an exemption from the requirement to minimize environmental damage for coal exploration activities which do not intend to apply for a mining permit or which do not result in a decision to apply for a mining permit.

{15130}In response to the comments discussed above, OSM has rewritten the proposed regulation to clarify this intent. As for the comments suggesting that the regulatory authority bear the expense of environmental data gathering, OSM declined to accept the suggestion because the data being gathered is not primarily for the benefit of the regulatory authority, but rather is for the use of the explorer in minimizing any environmental damage caused by the exploration activities and for use in support of a permit application if a decision to mine is reached by the operator. The Act does not contemplate government directly bearing costs of compliance by operators or explorers during the permanent program.

Some commenters contended that the phrase "to the maximum extent possible'' in proposed version of Section 815.15(b) should be deleted because, if deleted, the operator will in fact comply to the maximum extent practical. For these commenters, the phrase "maximum extent practical'' would amount to a "loophole'' which the operator could use to argue that all "maximum practical'' data has been gathered. The result, for these commenters, would be that the coal explorer will probably make little effort to gather and record data. The suggestion of deleting in its entirety the phrase "to the maximum extent practical'' because it would amount to a "loophole'' for coal exploration operators was rejected, because these commenters, like those discussed in the previous paragraph, are misreading the intention of the proposed regulation. As discussed previously, the primary purpose of the regulation is to minimize environmental damage occurring during the course of exploration activities and not to provide comprehensive environmental data for the regulatory authority or the public.

Other commenters contended that the requirement of proposed Section 815.12(h) (final rule 815.15(b)) to measure the "maximum extent possible'' important environmental characteristics implies an unending and wasteful activity for the operator, because once important environmental characteristics of the exploration area are measured, additional measurement to the "maximum extent'' does not significantly increase the ability to minimize environmental damage or to submit an application under 30 CFR 773 791. For these commenters, the proposed regulation already sufficiently outlines the measurements to be considered. OSM agreed with these later comments and deleted the word "maximum'' from the final regulation.

Other commenters contended that final rule 815.15(b) (proposed Section 815.12(h)) amounts to an environmental impact statement for coal exploration activities. These commenters viewed such a requirement as unnecessary for exploration activities, and for providing adequate information for a mining permit application which may never be submitted. These commenters conceded, however, that the measurement of important environmental characteristics may be necessary to minimize environmental damage. These commenters suggested amending the proposed regulation so that the measurements required would be determined as a result of discussion and agreement between the person conducting coal exploration activities and the regulatory authority. OSM decided to delete the required list of environmental characteristics, which would have had to be measured under proposed Section 815.12(h). OSM did not believe it necessary, as several commenters suggested, to write the final regulation so as to require a determination of the environmental characteristics to be measured based on agreement between the person conducting the coal exploration and the regulatory authority. The philosophy of Part 815 is to set minimum and flexible performance standards, which the regulatory authority may add to it as it deems necesary or advisable under its climatic, geologic, or environmental conditions. Requiring consultation between explorer and regulatory authority would come close to requiring prior permitting of exploration, which is beyond the intent of Section 512 of the Act, at least for exploration under 250 tons.

700 A proposed section 815.12(i) would have required all monitoring data collected during exploration to be submitted to the regulatory authority. The U.S. Fish and Wildlife Service "strongly recommends'' to OSM, without accompanying rationale, that this proposed section not be changed. Other commenters suggested that this obligation be limited to supplying data only when the person conducting exploration applies for a permit. The rationale offered was that the exploring entity was in a speculative position with respect to future intent to mine until a decision to seek a permit is made.

Another commenter, although not recommending an explicit limitation, suggested that much data obtained in coal exploration is strictly related to the economic value of the coal deposit and does not concern the potential environmental impact of mining those deposits. Other commenters indicated that exploration activities are concerned with evaluating coal quality and reserves and do not have as their primary goal the collection of all environmental monitoring data necessary for preparation of the permit application. Many exploration activities, according to these commenters, are terminated at the point when adequate information on the coal quantity and quality has been obtained without regard for doing further exploration work to obtain additional environmental monitoring data at that very preliminary stage of the investigation of the site. These commenters further alleged that due to the emphasis within exploration activities on the evaluation of the coal quantity and quality available, the other environmental monitoring data collected is not evaluated in enough detail to be used during proceedings to designate lands unsuitable for mining under proposed Parts 760 765, which is one use of the data OSM had suggested as a basis for the proposed requirement. For these commenters it would be premature, without a thorough evaluation of the area, to consider designating it unsuitable for mining based on the limited data collected during the exploration activities. These commenters insisted that specific additional studies covering all of the appropriate criteria for designating lands as unsuitable for mining, as explained in proposed Section 762.11, should be undertaken by the regulatory authority when it decides cases on lands unsuitable for mining. Such decisions, for these commenters, should not be made on the basis of environmental monitoring data which is often collected to a very limited degree as a minor part of an exploration program. These comments convinced OSM that it was necessary to change the proposed regulation despite the strong recommendation of the U.S. Fish and Wildlife Service not to change it. OSM has, therefore, rewritten the requirement on environmental data contained in proposed Section 815.12(i) of the proposed regulations and incorporated it into Section 815.15(b) of the final regulations. Section 815.15(b) of the final regulations makes it clear that environmental data collected is used to provide supportive information for any permit application under Subchapter G, as well as to provide coal explorers with an indication of the environmental damage which they may be causing and must minimize, and is not necessarily for determinations by the regulatory authority of lands unsuitable for mining.

{15131}Some commenters requested that the data submission requirement of proposed Section 815.12(i) be amended to exempt environmental monitoring data collected during coal exploration from confidentiality protection. These commenters stated that it seemed to be an enormous waste of time, money and useful information to require environmental monitoring and then not require the resulting data be collected in some central place where persons wishing to analyze the data could have access to it. These commenters did not believe that trade secrets are involved and that the only reason for requiring confidentiality would be to shield from the public any information pointing to adverse environmental impacts. These commenters wanted the regulation to require the coal explorer to submit, to the regulatory authority, all environmental monitoring data instead of merely requiring the operator to make such data available. To only make data available would require the regulatory authority to take some initiative in order to acquire it. These commenters conceded that it may be "unfair'' to require the coal explorer to pay the cost of providing environmental monitoring data and therefore suggested that the coal explorer be reimbursed by either the regulatory authority or by OSM for the cost of reproducing the data and possibly for the cost of gathering the data. These commenters asked if money collected from civil penalty fines could be placed in a fund to reimburse coal explorers for the costs of gathering and providing environmental monitoring data. The commenters also suggested that all environmental monitoring data be placed in a separate file system since they have found it difficult and costly to compile data which is filed according to individual permits. Other commenters recommended that proposed Section 815.12(i) be amended, under authority of Section 512(b) of the Act, to include appropriate confidentiality protection for data submitted to the regulatory authority. The Office agreed with these latter comments and deleted Section 815.12(i) of the proposed regulations because the issue of public availability of information is now covered in Section 776.17 of the final regulations. The reader is referred to the preamble of Section 776.17 for a discussion of the reasons for rules governing public availability of information. As for the comments suggesting that OSM use money collected from civil penalty fines to reimburse coal explorers for gathering and making available to the public environmental monitoring data, OSM's response is that it cannot legally do this since money collected from civil penalty fines goes to the general account of the U.S. Government and not to OSM. As for the suggestion that all environmental monitoring data be placed in a separate file, OSM does not believe that it should tell State regulatory authorities how to set up their filing systems. 700 Section 815.15(c).

Several commenters stated that Section 815.15(c)(i) (proposed 815.12(c)) on standards for vehicular traffic is acceptable as proposed, because these standards reflect the practices of conscientious coal exploration operators. One commenter further indicated that in his company's experience these practices have avoided environmental harm to the natural land surfaces traversed in the course of coal exploration. Other commenters recommended that this provision of the proposed regulations be revised because it would severely limit exploration activities. As worded, no off-road prospecting could be done on rainy days. These commenters alleged that States with much precipitation throughout the year could not, because of the proposed regulation, allow exploration for four or five months out of the year. Moreover, according to these commenters, roads that are not graded or surfaced can be adequate for all weather travel. The purpose of proposed Section 815.12(c) was to protect the environment from significant damage due to vehicular traffic. As several commenters pointed out, the danger of surface damage from vehicular travel is increased during and after precipitation. The degree of increased damage varies depending on other factors such as terrain, slope, soil characteristics, rainfall, ground cover and vehicle weight. Commenters contended that numerous private, timber and utility service roads are neither surfaced nor graded but, as a result of a fortuitous combination of the factors mentioned above, can be traveled during periods of precipitation by light utility vehicles without damage to vegetation or the surface. These commenters requested that OSM recognize this variability and suggested that vehicular travel be restricted during and after precipitation only when such travel could result in excessive surface damage. Other commenters contended that the proposed regulation would in practice require gravelling of roads, and in times of precipitation would dramatically raise field expenses and necessitate a much greater pre-drilling time delay. Moreover, if the road has to be regraded because of rutting, all of the gravel would be lost and thereby contribute to the expense of the operation as well as result in more disturbance to the environment. These commenters also contended that it will be necessary to remove the gravel before reseeding and thereby add additional expenses to the operation. Other commenters contended that having to attain grade limitations will result in the coal explorer potentially having to deal with numerous land owners instead of few landowners because in the process of crisscrossing a mountain with switchbacks to attain grade, more property lines will have to be crossed. Other commenters contended that the grading of roads as required by the proposed regulation would result in the unnecessary disturbance of miles of land surface and would increase the time to place an exploration drill rig on site, thus creating a greater potential for erosion and environmental degradation far in excess of that created by present methods.

The above comments convinced OSM of the need to clarify and rewrite the proposed rule. The final regulation requires that travel shall be confined to graded and surfaced roads during any periods when excessive damage could result. If limited to only "when practicable,'' as some commenters suggested, there could be too much damage. The wording in the final regulations eliminates the specific prohibition of using roads when precipitation has occurred, but covers all situations when excessive damage to the environment could result. Based on this revision, it would be possible for a person to conduct coal exploration activities following a rainfall or snowfall provided the area was stable enough to allow vehicular traffic over it.

One commenter requested that the proposed regulation be amended to include the words "where applicable'' after the phrase "travel shall be confined.'' Since this commenter did not give a reason for the requested amendment and OSM did not consider it relevant, the suggestion was rejected. The wording in Section 815.15(c)(1) would not severely limit exploration activities and would not require the construction of haulroads, as concluded by one commenter, except in certain cases when excessive damage to the environment existed. These cases would be rare and as a result the operator could delay planned activities until conditions for exploration were more favorable.

Another commenter felt that "excessive'' rutting should be added to Section 815.15(c)(1). This suggestion was rejected because OSM believes that the avoidance of any excessive damage should be regulated and not "rutting'' alone, as might be incorrectly inferred if the word were inserted as proposed. Other commenters requested that the proposed regulation be limited to federally owned surface land. OSM rejected this request because Section 512(e) makes it clear that this Part does not apply on Federal lands. The reader is referred to the preamble discussion for Part 740 for further elaboration of this issue.

{15132}Some commenters suggested that proposed Section 815.12(c) would effectively prevent a person from returning from the field for an indeterminate period if a sudden thundershower occurred while that person was off a graded and surfaced road. OSM did not believe it necessary to write an exemption in Section 815.15(c)(1) of the final regulations to cover persons on ungraded or unsurfaced roads who are caught in unexpected weather, since it would be unreasonable for the regulatory authority to charge such person with violation of Section 815.15(c)(1). OSM assumes that any excess damage caused by persons trying to escape from emergency weather conditions will be repaired by these persons.

One commenter requested that proposed Section 815.12(c) be amended to qualify the phrase "absolutely necessary,'' because it could be strictly interpreted to mean that no travel may be accomplished except on public or private graded and surfaced roads. In support of this contention, the commenter gave the example that the regulatory authority could argue that it is not absolutely necessary to drill test in a particular area if some, even though minimal, information had already been gleaned from prior drilling or other sources. This commenter suggested that the phrase "absolutely necessary'' be qualified that travel necessary to accomplish the purposes of the exploration, which is to determine the geology of the area with a high degree of accuracy. OSM rejected this request because the intention of Section 815.15(c)(1) of the final regulations is not to allow the regulatory authority to determine whether there should be coal exploration. But rather if the requirements of Part 776 are met, then the coal exploration operation should confine itself to activities which, as stated in the regulation, are "absolutely necessary to conduct the exploration (emphasis added).'' The phrase "to conduct the exploration'' clearly qualifies the term "absolutely necessary'' and does not permit the regulatory authority the discretion to disallow coal exploration or to determine the scope of exploration operations under the guise of Section 815.12(c) of the proposed rules or Section 815.15(c)(1) of the final rules. One result of the final regulation is to restrain coal explorers from undertaking activities not directly related to coal exploration operations. Section 815.15(c)(1) will help limit mining operations occuring under the guise of exploration.

700 Many comments were received on Sections 815.15(c)(2), (3) and (4), proposed as Section 815.12(d). Some commenters requested the provisions be deleted in their entirety. These commenters contend that they have no way of establishing when maintenance may be required and would have no right of entry upon private, Federal, State, and local roads without permission. Moreover, these commenters contend that since State, Federal and local roads are maintained under existing laws and taxes, there is no need for coal explorers to have to maintain the roads they use. Other commenters contend that since very often a landowner will request a road be left in consideration for the use of his surface land during coal exploration operations, the landowner should be allowed to decide where and how the road should be constructed and not OSM. For these commenters, private roads on private lands were not meant to be regulated by Congress. Other commenters requested that these provisions be limited to Federal lands since surface owner consent should cover the situation. For the reasons stated above, these rules do not apply on Federal lands. Other commenters wanted to amend proposed Section 815.12(d) because they questioned the definition of "road.'' For these commenters there are many instances when exploration activity can be conducted within a short distance of established county, State, or Federal highways. In these cases, coal exploration sites are commonly entered through a farmer's field and require no road-building activity at all. These commenters suggest that these access routes cannot properly be considered "roads'' as the term was used in proposed Section 815.12 or defined in proposed Section 701.5. For these commenters, the requirements set forth with respect to roads and road building in Section 815.12 were such that if applied to access routes across a farmer's field, they would result in considerably more environmental harm and land damage than present practices and procdures of coal exploration operations. These commenters requested proposed Section 815.12(d) be amended to require that exploration be conducted so that a minimum area will be disturbed by access routes and when road building is required (that is, when heavy equipment must be employed to remove or relocate trees, shrubs or earth materials), resultant new roads would then have to meet the performance standards of proposed Section 815.12(d)(1), (d)(2), (d)(3), (d)(4), and (d)(5).

Several comments were received on proposed Section 815.12(d)(1), which would have regulated the location of roads, limiting them to the flattest and most stable slopes. These commenters requested amending the proposed regulation so that roads could be located utilizing the most direct route to the drill site to minimize the area disturbed by construction and the resultant erosion. According to commenters, proposed Section 815.12(d) placed too great an emphasis upon the slope of a drill site access road while ignoring the length and area of such a road. These commenters contend that in highly mountainous regions, locating an access road on the flattest slope may result in the construction of a longer access road, exposing a larger area to erosion and increasing construction and reclamation time with a corresponding increase in the time a road would be exposed to the effects of erosion and making costs associated with reclamation and construction prohibitive in extreme cases. To minimize the potential for erosion by reducing the area disturbed and the time such disturbed area is exposed to erosion, these commenters would, as indicated above, amend the proposed regulation so that the area to be disturbed is considered equally with the flatness and stability at the slope in the design of temporary drill site access roads.

Numerous comments were received on proposed Section 815.12(d)(2), relating to stream crossings for roads. Several commenters requested that the proposed regulation be deleted entirely. Some of these commenters argued that since streams are being forded by vehicles of all kinds on numerous occasions, to require every single crossing of an active stream to be approved first by the regulatory authority will cause unwarranted delay and expense where limited stream channel crossing is involved. Other commenters contended that the requirements of proposed Section 815.12.(d)(2) might be more disturbing to the natural land surface than the exploration operation because of the requirement to construct bridges, culverts or other structures. For these commenters, occasional fording of stream channels would be preferable to the disturbance associated with the construction of culverts or bridges. Other commenters contended that proposed Section 815.12(d)(2) would be especially troublesome if applied to environmental studies, where vehicle access to widely distributed sampling stations is essential in order to obtain sufficient data. Some commenters suggested amending proposed Section 815.12(d)(2) to exempt "occasional'' stream crossings. For these commenters, "occasional'' stream crossings in the course of exploration activities may be required and would not be the cause of significant degradation. Some of these commenters acknowledged that regular crossings would require greater attention by the regulatory authority but argued that some flexibility must be allowed to the coal explorer. Other commenters suggested amending the proposed regulation so that vehicles would be required to keep crossings of active stream channels to a minimum. Some of these commenters would further amend the proposed regulation so that if a permit application is submitted, then specific crossing locations must be approved by the regulatory authority as temporary routes. These commenters contend that the impact on a stream from a vehicle crossing is extremely limited (even if it is assumed to have water in it at all times), since the time necessary for a crossing measured in seconds limits the disturbance that a crossing can cause. These commenters further contended that in operations involving less than 250 tons of coal, removing the stream crossings would typically be accomplished by small numbers of light four-wheel drive vehicles that do little or no damage. For these commenters, only in the event that more than 250 tons of coal would be removed or the area is developed for mining operations, necessitating larger numbers of heavy vehicles, would the stream crossings become numerous enough and produce enough disturbance to warrant examination and approval of regulatory authorities. Other commenters contended that their "drill site flagging and preparation procedures'' will depend on the discretion and availability of an inspector regarding stream crossings. For these commenters, if inspection of sites is necessary, then the inspector will have to be available to "walk up to one hundred and fifty miles'' to view the drilling sites and "an additional one hundred and fifty miles if he wants to get back.'' These commenters based their mileage projections on the "Southern Appalachian Exploration Proposed Drilling Program for 1979'' (reference not provided). Other commenters requested that proposed Section 815.12(d)(2) be amended to require the regulatory authority to provide authorization for a stream crossing within 15 days after notification to the regulatory authority. These commenters contend that without a time constraint on the regulatory authority, the successful completion of an exploration program would be jeopardized and require the maximum use of personnel and equipment.

700 {15133}Several commenters contended that proposed Section 815.12(d)(3), requiring topsoil removal from roadways, should be deleted entirely. These commenters alleged that the removal and storage of topsoil for exploration access roads is unnecessary, extremely expensive, and far more damaging to the environment than vehicular travel. For these commenters, the short-lived nature of exploration roads and their minimal disturbance to the soil horizons makes topsoil storage unnecessary because methods of post drilling reclamation, back blading and seeding commonly used have "proved effective'' in returning the disturbed land back to its original state. Moreover, these commenters contended that stockpiling of topsoil will create more problems in regards to increased sedimentation surrounding the storage area, and result in increased site preparation time, machinery, and personnel with the result that a larger area will be disturbed. Other commenters similarly contended that "most'' exploration work is conducted as expeditiously as possible, so that to require that topsoil be removed, stockpiled and then replaced will not only significantly increase costs, but in many circumstances cause greater disturbance to the area than past exploration practices. For these commenters, in most cases it should be sufficient to only reseed and water bar as necessary.

Several commenters contended that removal and storage of topsoil before use of the surface area as an exploration road would be counterproductive in the Appalachian region. These commenters alleged that Appalachian soils are generally classified as "Ochrepts'' and are shallow with a poorly developed "A'' horizon. Due to the steep topography, removal of the surface soil would require the disturbance of 3 to 5 times that needed to build a road using the present techniques. This additional area would be needed to safely negotiate heavy equipment during the soil removal phase. The additional time required for these operations would also increase the needed service life of these roads well beyond the 1 to 2 weeks now needed to facilitate core drilling operations, and thereby expose the disturbed area for a longer time period before reclamation could be completed. These commenters further contended that the removal of topsoil would not protect fish, wildlife, and environmental values or site productivity because by removing soil moisture retention, run-off may result in increased particulates in area streams.

Moreover, these commenters asserted topsoil removal may reduce grazing grasses and greatly increase the impact and duration of what would normally be a short-lived operation. These commenters concluded that proposed Section 815.12(d)(2) could greatly increase the cost factors involved in exploration and may eliminate the ability of small operators to conduct coal exploration. Other commenters contended that topsoils on relatively steep slopes, such as those in eastern Kentucky, are usually shallow and stony and the underlying "B'' horizon is generally clayish material, impermeable, and often pyritic which would constitute an obstruction to plant growth. These commenters contended that the "C'' horizon, when properly limed, fertilized, and mixed with organic material, generally offers the best soil environment for plant growth. Therefore, these commenters conclude, a regional variation for mountainous areas should be added to the topsoil requirement for exploration roads.

Several comments were received on proposed Section 815.12(d)(4), which required sedimentation control for roads and required strict standards for roads intended to remain after exploration. Some commenters contended that the proposed regulation should be amended to allow the regulatory authority to have discretion to determine the nature of roads that are to be constructed which, if permanent, will be consistent with the post mining land use without simply assuming that permanent roads must be of the nature described in Part 816. These commenters asserted that they do a lot of exploration in mountainous areas where the existing land use is grazing. The only road existing outside of permit areas are essentially ranch trails that are used periodically by drive vehicles and stock. For these commenters, where the post mining land use will also be grazing, it would be valuable to ranchers to have additional ranch trails left of a similar nature to those roads that preexisted. To classify such roads as permanent would require that they be constructed in compliance with the requirements of Part 816 for permanent roads, with the result that a great deal more damage would be done to the land surface than if roads of the existing type were constructed and left for permanent use. Other commenters requested deleting from the proposed regulation the phrase "best technology currently available'' and substituting the phrase "established and generally accepted engineering technique.'' For these commenters, the phrase "best technology currently available'' is vague in its requirements and in the powers vested in the regulatory authority because "best currently available technology'' may be so new as to be unproven in all cases yet required by the regulatory authority. Moreover, "best technology currently available'' may become available after a project has been initiated and thereby require re-engineering, delays, and reconstruction in addition to possibly a large amount of additional investment while providing only marginal increase in effective utility over a more common accepted method. In addition, these commenters contended that best technology in one area may adversely affect another area and best technology may be subject to differences of opinion depending on the application and parameters examined. These commenters concluded by asserting that it is necessary to plan exploration operations in advance of execution, and a solid base for these plans can provide adequate protection to environmental factors by the use of "established and generally accepted engineering techniques.'' {15134}Other commenters indicated that they were unclear as to the intent of the proposed regulation regarding permanent roads which are "modified.'' These commenters viewed the proposed regulation as implying that preexisting access routes, such as gas line service roads or old timbering routes, that are used by an exploration crew, would be subject to the stringent construction requirements of proposed Sections containing performance standards for roads in Part 816, if these roads were "modified.'' These commenters believed that the performance standards should carefully distinguish between "new roads'' and "existing roads.'' "Permanent roads'' should, for these commenters, be clarified by OSM to include only new roads constructed during or for exploration that will remain after exploration is completed and the definition, use, and modification of existing roads should be covered by a separate section of the regulations. 700 Several commenters requested that proposed Section 815.12(d)(5), relating to use of existing roadways, be deleted entirely and be replaced by new Sections 815.12(d)(5) and 815.12(d)(6). These commenters contended that proposed Section 815.12(d)(5) implied that "existing roads'' are not to be treated or regulated by the same rules as "new roads.'' These commenters were uncertain as to what constitutes an "existing road,'' i,e., is it meant to include state, county, and township roads only (improved roads) or does it include private roads, old fire lanes, timbering roads, power or gas line service roads or the like? These commenters suggested a separate section to clarify the rules for use of existing roads from the rules for construction, maintenance and use of new roads. While it was clear to these commenters that restoration of new roads is expected, including but not restricted to revegetation and removal of and replacement of topsoil, these requirements may not be appropriate or desirable for existing roads used temporarily as access routes to drilling sites. For these commenters it is not uncommon, especially in the Appalachian coal fields, to use existing roads (such as gas line service roads or old timber trails) for access to drill sites. These commenters believe that their procedure is practical, inexpensive, and eliminates much road construction activity and to the extent that these roads are not materially altered by such use, it is environmentally sound to require no post-use restoration. These commenters requested that proposed Section 815.12(d)(5) be amended to require that existing roads may be used for exploration activity in compliance with applicable Federal, state, and local requirements. Moreover, these commenters requested that, if these roads are not substantially altered or modified for use and if these roads do not contribute to suspended soils in the streamflow or runoff outside the permit area, the coal explorer be required "only'' to return these roads to their original, pre-exploration condition following exploration use.

Other commenters would add a new section to the regulations that would provide that if existing roads are significantly altered (including, but not limited to, change of grade, widening, or change of route, or if the use of existing roads contributes additions to suspended solids to streamflow or runoff outside the permit area) then existing roads should be subject to the provisions of proposed Section 815.12. Moreover, these commenters would provide in a new section that if significantly altered existing roads remain as permanent roads after exploration activities are completed, then these roads shall be designed, altered, and maintained in accordance with proposed Sections in Part 816 relating to permanent roads. For these commenters there are instances when access routes for multiple transits are needed, or when terrain and vegetation are such that some surface disruption is required to lay out a route. But in most cases, these temporary access routes will not be used for other than exploration efforts. These commenters do not believe that for such short term usage the same design and construction criteria for permanent access or haulroads could or should be used. Conversely, for these commenters, some exploration roads may ultimately be used for more permanent functions. The proposed amendments which these commenters submitted, they asserted, would make the necessary construction distinctions based on actual road use instead of ignoring the extremely varied types and uses of roads in surface mining as the proposed regulations do.

In reviewing the above comments dealing with proposed Section 815.12(d), OSM decided to reference the road criteria for exploration activities to new Sections 816.150 .176. These Sections consider road location, design and construction, drainage, surfacing, maintenance, and restoration based on the variables of volume, speed, and frequency of use. Class III roads, such as those used in coal exploration activities, were considered to be of short duration, subject to low speed and light weight use, and returned to productivity quickly. If conditions exist where less than 250 tons of coal is shipped out of the area for test processing, no approval is required and the coal may be hauled over the same roads used for coal exploration. Roads used for coal exploration may be used later for mining purposes and must meet the criteria compatible to its later use and class.

New Class III Roads constructed for coal exploration must meet the provisions of Sections 816.170 816.176. A new section 815.15(c)(3) was added to cover existing roads which are significantly altered or improved in road grade, width, alinement, drainage or surfacing and remaining as a permanent road after coal exploration activities are completed. According to this new section, the person conducting exploration shall ensure that these improved existing roads meet the provisions of 30 CFR 815.15(g) and CFR 816.150 816.166.

700 For existing roads that are not significantly altered or improved, that are used essentially as found, Section 815.15(c)(4) provides that existing roads are not to be treated or regulated by the same rules as new constructed Class III Roads. Although it may be desirable to ameliorate environmental problems caused by existing roads which are only used temporarily by coal explorers, OSM decided to require only that coal explorers repair any damage which they do to the roads while they are using them. Coal explorers are, therefore, required only to return existing roads to a condition equal to or better than their pre-exploration condition.

Section 815.15(c) of the final regulations responds to the comments submitted and strikes a balance as required by the Act between the nation's need for continued coal exploration and the protection of the environment from coal exploration activities. Keeping with the philosophy behind Part 815 of setting minimum rules in broad terms of general applicability, Section 814.15(c) of the final regulations maintains the discretion of regulatory authorities to set more stringent requirements than they believe are necessary in their particular jurisdictions.

With respect to general topsoiling requirements contained in paragraph (e) of section 815.15, several commenters recommended that proposed Section 815.12(e)(1) be deleted because the regulation inferred that there is a mandatory requirement for the removal of "A'' horizon for all disturbances regardless of the extent of the disturbance or whether or not the removal may create a larger disturbance. OSM decided not to delete the requirement of proposed section 815.12(e)(1), but to modify it, because special consideration for topsoil is required in section 515(b) of the Act which is referenced in section 512(a) of the Act governing coal exploration. Topsoil removal for roads is covered in the regulations (Sections 816.150 816.176) which have been discussed earlier in this preamble as applicable for exploration by reference in Section 815.15(e). The other coal exploration activities that involve disruption of topsoil are covered in Section (e) of the final regulations.

{15135}All of the issues raised by the comments on exploration roads were considered in the development of the final regulatory scheme. Detailed discussions of the issues raised may be found in the portions of this preamble which discuss Sections 816.150 816.176 (roads used in mining), 816.21 816.25 (topsoil requirements), 701.11(e) (existing, non-conforming structures), Part 776 (documentary requirements for exploration) and 701.5 (definition of "best technology currently available''). Particular attention should be paid to the rationale underlying Section 816.170 816.176, which OSM believes will be the requirements applicable to the majority of roads constructed for exploration.

Section 815(c)(4) requires pre-existing roads to be restored either to their premining condition or to the standards for permanent roads under Section 816.150 816.166. OSM felt that any stricter restoration requirement would be so burdensome, given the speculative results likely from exploration, that the discovery of new mineable reserves would be severely limited. Accordingly, the explorer will be required by OSM to do no more, by way of restoration, than repairing any damage the exploration activities may have caused to the road.

Section 815.15(d).

Section 815.15(d) requires restoration to approximate original contour of areas disturbed during exploration. This paragraph makes Section 515(b) (2) of the Act apply to exploration, as contemplated by Section 512(a)(2) of the Act. For new roads, restoration to contour is also guided by Sections 816.150 816.176, referenced under 815.15(c).

Section 815.15(e).

Section 815.15(e) requires that all topsoil be removed, stored, and redistributed on disturbed areas as necessary to assure successful revegetation or as required by the regulatory authority. One commenter alleged that the removal of the "A'' horizon in areas of permafrost could have catastrophic results. This commenter contended that in permafrost areas, it would be better to lay insulating layers of gravel over the overburden to form a road or to restrict use to winter. OSM agrees but has not changed the final regulations because the "State window'' contained in Section 731.13 and the requirement in Part 736 to consider regional differences will allow each State and Federal program to adequately reflect special needs resulting from unique climatological or geological factors.

Other commenters stated that proposed Section 815.12(e)(1) contradicted proposed Section 815.12(d)(3), which would have restricted the disturbance or removal of topsoil in roadbuilding to only those instances where surface use as a road would have adverse environmental impact. these commenters requested that the provision be amended to require that topsoil be saved only when the regulatory authority requires it. OSM has accepted the thrust of these comments and has implemented them in Section 815.15(e) of the final regulations.

700 Section 815.15(f).

Section 815.15(f) contains the revegetation requirements for exploration. The requirements are very general, although a plan must be approved for removal of over 250 tons, since these explorations are likely to denude larger areas of vegetation.

Several commenters felt that the proposed regulations (Section 815.12(m)) which required compliance with Sections 816.111 816.117, to be too restrictive. They contended that the wording should be changed so as to give the operator the opportunity to use contract specialists in revegetation. Other commenters contended that the revegetation rules need more flexibility. On occasion core samples would be taken from a farmer's fields at a time when those same fields would be plowed-under shortly after the exploration was completed. They felt there was scant logic in requiring revegetation efforts under such circumstances. These same commenters contended that there would be instances when a land owner would prefer not to revegetate an area which has been filled and regraded. They recommended that proposed Section 815.12(m) be modified so that revegetation could be waived at the request of the surface owner if approved by the regulatory authority.

As a result of these comments, the proposed regulation was changed. This provision now allows revegetation to be performed by the person or agent who conducts the coal exploration operation. To give more flexibility in the revegetation requirements, Section 815.15(f) allows the operator or agent to plant crops normally grown in an area if both the preexploration and postexploration land-use is intensive agriculture. However, the commenters' requests for revegetation to be waived by the surface owner if approved by the regulatory authority was rejected because the waiving of revegetation by the surface owner would undermine the environmental protection standard mandated by Section 512(a) of the Act. The purpose of the requirement for revegetation is to protect environmental values, such as air, water, and wildlife. OSM cannot allow private parties to undo, by contract, what Congress has required by statute.

Section 815.15(g).

Section 815.15(g) contains requirements for stream diversions and diversions of overland flow. This regulation is necessary to protect the hydrologic balance.

One commenter recommended that the word "ephemeral'' be deleted from the proposed version of this provision because there was no scientific or layman's definition of "ephemeral stream.'' This recommendation was rejected. Ephemeral streams are defined in Section 701.5 of these regulations and the reader is referred to the preamble discussion for that Section. Ephemeral streams are regulated to minimize long-term adverse effects on hydrologic characteristics of areas where exploration may occur. The reader is referred to the preamble discussion of Parts 816 and 817 for further discussion of ephemeral streams.

Section 815.15(h).

Section 815.15(h) establishes minimum requirements for the management of holes as required by Section 512(a)(2) of the Act. Several commenters contended that the requirement in proposed Section 815.12(g) to cap each hole with 10 feet of cement was unnecessary and needed more flexibility. These commenters felt this requirement would be unenforceable because an inspection of the seals would not easily determine how deep the seal was. Also, in different geographic regions cement caps may not be adequate or practical due to freezing and thawing.

Other commenters asserted that the proposed regulation ignores the possibiity that a drill hole or other excavation may be usable to the surface owner as a water well or for the groundwater monitoring required if the operator decides to apply for a mining and reclamation permit.

Other commenters contended that the ongoing management and ultimate proper closing or sealing of holes is adequately addressed under the permanent environmental peformance standards Sections 816.13, 816.14, and 816.15. Still other commenters asserted that just capping the top 10 feet of a hole may not prevent the mixing of ground waters if there is more than one aquifer in the stratum that have been drilled. These commenters wanted the regulation amended to delete the 10-foot requirement and give the regulatory authority the discretion to manage the sealing of the hole to prevent pollution. One commenter asserted that the regulation be changed from ten to five feet of cement capping because exploration activities conducted under the guidance of the U.S. Geological Survey (reference not provided by commenter) have demonstrated that plugging of drill holes with five feet of cement is entirely sufficient.

{15136}Several commenters contended that the proposed version of this paragraph required approval of a plan for every type of exploratory operation and that Part 776 requires only the filing of a written notice of intention where less than 250 tons are involved and does not include approval of a plan. Other commenters requested the following amendments to the proposed regulations: 1. In areas where surface mining is to be practiced, boreholes should be plugged by placing an artificial bridge or packer six to eight feet below ground level, backfilling with drill cuttings to within two feet of the surface and sealing by implacement of a metal cap overlain by one foot of cement and one foot of topsoil; 2. In areas where underground mining is to be practiced, boreholes should be cemented from bottom to top.

The commenters who made the above suggestions did not offer reasons, but these amendments seem to reflect current acceptable practice in some coal exploration operations. Other commenters wanted the language amended to cover the mixing of ground waters from aquifers of different quality, because the plugging of drilled excavations as required only considers management methods to prevent the mixing of ground and surface water. These comments convinced OSM of the need for greater flexibility in the regulation. OSM therefore modified the regulation by eliminating the 10-foot cement cap requirement and making capping more flexible by referencing, in Section 815.15(h), Sections 816.13, 816.14, and 816.15. The reader is referred to the preamble discussion of these sections and Sections 817.13, 817.14, and 817.15, for the rationale and bases of these requirements.

Section 815.15(i).

Section 815.15(i) contains requirements for site clean-up after exploration. Several commenters contended that if the regulatory authority required, under Section 815.12(l) of the proposed regulations, that equipment or facilities should remain on the site following the completion of exploration, then the regulatory authority should be required to reimburse the operator for the cost of the facilities, assume the cost of operation and maintenance, and assume all liability for these facilities and/or equipment which remain on the site. These suggestions were rejected because they were based on a misinterpretation of proposed Section 815.12(l). Section 815.12(l) was proposed so that no equipment and/or facilities remain on the exploration site unless the exploration operator requested the regulatory authority that they remain on the site. The regulatory authority would allow this equipment and/or facilities to remain on the site for certain purposes. Section 815.15(i) allows equipment and facilities to remain on site only after a determination by the regulatory authority following a request by the explorer.

Section 815.15(j).

General hydrologic balance protection is required under Section 815.15(j).

Several commenters contended that the construction of treatment facilities which might have been required by proposed Section 815.12(k), would cause a greater disturbance than the exploration itself. These commenters contended that the operators should be afforded the oportunity to use small devices (straw bales, pole dams, etc.) which would meet the effluent limitations of Section 816.42(a). Other commenters requested that proposed Section 816.42(k) should be amended to exempt normally small amounts of drilling fluid, because under normal drilling conditions the amount of drilling fluid used is not great and is generally confined to the immediate vicinity of the drill site. One commenter requested that the requirement of a treatment facility should be clarified to recognize the existing technologies and practices of "mud fills, decantation and fill.'' Another commenter contended that it is not clear whether or not discharge limitations would apply to pump testing of wells. Other commenters stated that the proposed regulation was not clear. One comenter contended that the requirement that water used in coal exploration activities may need to be treated is excessive. This commenter suggested that only ambient levels be met.

Based on the above comments, proposed Section 815.12(k) was modified by incorporating into Section 815.15(j) of the final regulations provisions to allow for different sediment control measures than those referenced in Section 816.45 or sedimentation ponds which comply with Section 816.46. Moreover, OSM decided to leave to the discretion of the regulatory authority the decision of whether to specify additional measures which it believes need to be adopted in particular coal exploration activities. OSM did not believe it necessary to accept the comments requesting exemption of drilling fluids from passing through treatment facilities, because drilling fluids are usually in such small amounts it is doubtful that they would be discharged from the exploration operation which is covered by the regulation. In most cases, the small amount of drilling fluid discharged would seep into the ground and cause no problems. Otherwise, drilling fluids should be treated. In all cases, care must be taken to minimize the amount of drilling fluid released and to reduce its adverse environmental effects.

700 One commenter alleged that proposed Section 815.12(k) interferes with the regulatory authority of the Environmental Protection Agency. OSM does not agree with this comment and the reader is referred to the discussion in this preamble of Section 816.42, on the interrelationship of OSM effluent standards with those of the Environmental Protection Agency under the Clean Water Act, for further information with respect to this allegation. One commenter suggested that the operator should not be held in violation for water quality deterioration in receiving streams, if the water discharged from coal exploration activities meets the effluent limitations of Section 816.42(a). OSM believes that if the regulatory authority feels additional measures are needed to prevent further deterioration of the water quality in receiving streams, it has the discretion, under Part 815, to so require. This provides the regulatory authority with sufficient authority to protect receiving streams without unnecessary hardship to those engaged in coal exploration.

Section 815.15(k).

Section 815.15(k) covers the general requirements for handling and/or disposal of acid- or toxic-forming materials. It also allows the regulatory authority to require additional measures to be adopted, if necessary. This provision has been added in order to fulfill requirements for protection of the hydrologic balance and for assuring successful revegetation. While these goals were met in the proposed regulations, which did not include this explicit provision, changes in the organization since the proposed regulations, and the general shift from specific to general requirements, require this matter be covered in this separate paragraph.

SECTION Section 815.17.

There were no comments on proposed Section 815.13, Section 815.17 in the final regulations. The statutory authority, basis, and purpose of this section was explained under Section 815.13 of 43 Federal Register, T1pp. 41736 (September 18, 1978).

SUBCHAPTER K -- PERMANENT PROGRAM PERFORMANCE STANDARDS, 30 CFR PART 816 -- PERMANENT PROGRAM PERFORMANCE STANDARDS - SURFACE MININING ACTIVITIES Section 816.1 and 816.2 set forth the scope and objectives, respectively, of this Part. Part 816 contains the minimum performance standards and design criteria which will be applicable under a State or Federal program for surface mining activities. Surface mining includes methods commonly known as contour mining, area mining, auger mining, mountaintop removal, box cut, open pit, and removal of coal from waste piles.

SECTION 816.1 Scope.

1. Commenters requested that existing nonconforming structures (now simply referred to as existing structures) be exempted from the performance standards of Part 816. The reader is referred to the preamble discussion of Sections 701.11(e), 780.12 and 786.21 for a full explanation of how this Part applies to existing structures.

2. Other commenters requested that Parts 816 and 817 be combined into a single Part. This request was not accepted. The Act, Section 516(d), recognizes the difference between surface and underground mining and mandates the "modification of requirements, permit approval and bond requirements as are necessary to accommodate the differences between surface and underground coal mining.'' This has been done, and the requirements are sufficiently different that separate Parts are the clearest way to present the requirements. Also, OSM wants a separate set of rules for each category of mining, which will be self-contained and complete so that the operator need not read or retain copies of requirements not applicable to the particular operation. 3. A comment that all coal exploration or exploration holes be excluded from Part 816 was rejected. Exploration holes to be drilled within a permit area must meet the requirements of Section 515(b)(10)(A)(iii) of the Act. This activity falls within the definition of mining operations under Section 701(28) of the Act, as opposed to exploration, which is an activity not subject to permit requirements. Holes outside the permit area are governed by Part 815.

SECTION 816.2 Objectives.

These objectives derive from Sections 102 and 515 of the Act. A commenter requested striking the word "enhance'' from this Section since it was not in the Act. The Act states in Section 515(b)(24) "to the extent possible using the best technology currently available minimize disturbances and adverse impacts of the operation on fish, wildlife and related environmental values, and achieve enhancement of such resources where practicable.'' Based on this wording in the Act, "enhance'' was not removed from Section 816.2, since improvement of conditions is a goal Congress clearly intended be achieved, where possible.

SECTION 816.11 Signs and markers.

This Section specifies requirements for identification and warning signs and for markers of permit perimeter, buffer zones, and topsoil storage piles. The regulations seek to balance the desire to reduce cost and bother to the permittee against the need for ample identification in the interest of citizen participation, inspection by the regulatory authority, employee guidance, and protection of the public. Proper markings of perimeters and working areas will be particularly valuable in preventing equipment operators from inadvertently entering areas not authorized for disturbance and should help eliminate arguments over location of perimeters. Properly posted signs and markers reduce hazards to the health and safety of the general public and mine personnel and prevent adverse effects on the environment.

The statutory authority and purpose for this Section are found in Sections 102, 201, 501, 503, 504, 515, 517(d) and 701(17) of the Act.

Literature on which the requirements are based include the following: 1. 30 CFR 77.1202.

2. Colorado State Land Reclamation Board, Rules and Regulations promulgated under the Open Mining Reclamation Act of 1973.

3. Maryland Department of Natural Resources, Geological Survey-Bureau of Mines, Bituminous Coal Strip Mine and Auger Mine Regulations of 1973, 08.06.01(.03).

4. Montana Department of State Lands, Rules and Regulations promulgated under the Montana Strip and Underground Mine Act of 1978, 26 2.10(10).

5. Ohio Department of Natural Resources, Division of Reclamation, Rules Nos. 1501:13 9 01, 1501:13 9 05, May 15, 1978, as revised and effective August 28, 1978. 6. Ohio Rev. Code Ann. 1518.16 (1975).

7. Tennessee State Department of Conservation, Division of Surface Mining, Rules and Regulations, Chapter 0400 3 0. 205, 1975.

8. West Virginia Department of Natural Resources, Surface Mining Reclamation Regulations, Chapter 20 6, Series VII, 1973.

9. Wyoming State Department of Environmental Quality, Land Quality Division, Land quality rules and regulations, 1975 (as amended).

700 816.11(a). This Section provides the specifications for signs and markers.

816.11(a)(1).Responsibility for installation and maintenance of signs and markers is placed on the operator. Regular inspection of signs by operators will be necessary to assure compliance.

816.11(a)(2).

Uniformity of signs is required. A commenter suggested the language be changed by deleting the requirement that signs and markers be of uniform design. The Act doesn't specifically state that signs and markers be of uniform design. However, if the markers are of a uniform design, the probability of the markers being recognized for the specific purpose for which they are required, by both workers and the public, is greatly increased. Accordingly, uniformity is required.

816.11(a)(3).

Signs and markers should be made of durable material so that they will not deteriorate before the final bond is released on the permit area. It would be to the permittee's advantage that signs amd markers be constructed of durable material so that frequently reposting of them is unnecessary. Since the final bond on a permit area would not be released for 5 or 10 years (depending on the geographic location) following the last augmented seeding, it would be essential that durable signs and markers be posted so the regulatory authority could determine the perimeter of the permit area and the person responsible.

816.11(a)(4).

The provision of Section 816.11(a)(4) was adopted by OSM to assure that signs and markers used during surface mining activities comply with local ordinances and codes, and to clarify that these regulations are not intended to exempt operators from other applicable laws.

816.11(b).

Maintenance of signs and markers will be the responsibility of the permittee until the final bond is released on the permit area. OSM adopted this provision because it will be necessary for the regulatory authority to know who is responsible for the permit area, the boundary of the permit area, and the location of buffer areas, blasting areas, and topsoil stockpiles, in order to make thorough inspections. Without continued maintenance of these signs and markers, inspection of the permit area would be difficult.

816.11(c)(1).

The authority for this Section is found under Section 517(d) of the Act. The placement of identification signs at points of access to the permit area from public roads will identify to the regulatory authority and public the location of surface mining activities.

816.11(c)(2).

The authority for this Section is found under Section 517(d) of the Act. Several commenters felt that Section 816.11(c)(2) should only require that a current surface mining permit be specified. As proposed on September 18, 1978, all permits had to be identified. The commenter's suggestion was accepted and in Section 816.11(c)(2) the word "each'' was deleted to conform this Section to require no more than is required under Section 517(d) of the Act.

{15138}816.11(c)(3).

Identification signs are required to be posted and maintained until the final bond is released on the permit area. This provision will notify the regulatory authority and the public of the identity of the person or company responsible for mining and reclamation activities in that area.

816.11(d).

A commenter felt that Section 816.11(d) should be revised to require that all mine areas be fenced as well as posted. The cost of construction and removal of a fence around the permit area, many of which exceed 100 acres, could be prohibitive. As a result, this suggestion was not adopted. Underground openings must have, under Sections 816.13, 816.14 and 816.15, protective measures to prevent access.

Many commenters felt that perimeter markers should not have to be posted before submitting a permit application, as would have been required under the proposed version of this Section. The commenters stated that if the permit is refused, then these markings would have to be removed, which would involve added cost. Many surface owners probably would object to needless perimeter markers being installed on their property, and some leases will not allow such signs until mining is about to begin on that particular tract. On the basis of these comments, Section 817.11(d) was changed to require marking only before the beginning of surface mining.

816.11(e).

Buffer zones are to be identified and marked to assure that unnecessary disruption and degradation of stream channels will not occur. Buffer zone markers are deemed necessary to provide notice to equipment operators that special effort is required when mining in the vicinity of streams. It should be noted, however, that the requirement for buffer zone markers does not preclude mining through streams where specifically approved by the regulatory authority under the controlled conditions established in Section 816.57(a).

816.11(f).

The use of blasting signs, markers, and signals will provide notification to any person entering the permit area of the potential hazard relating to the use of explosives and flyrock. A suggestion was made to revise Section 816.11(f) so that it is clearer and more readily enforceable with respect to procedures for marking blasting areas, and to eliminate any potential for conflict with MSHA regulations. The proposed regulations created a minor enforcement conflict with MSHA, because 30 CFR 77.1313h requires everyone to be removed from a blasting area before a shot is fired unless shelters are provided. If the whole mine was labeled a blasting area by OSM, a strict interpretation of the MSHA rule would require everyone on the minesite to leave or take shelter. On the basis of this recommendation, Section 816.11(f) was amended to eliminate potential conflict between regulations of two Federal agencies. Originally, the proposed regulations stated that signs reading "Blasting Area'' should be displayed at the edge of blasting areas along roads within the permit area. This provision appeared to be ambiguous, so OSM accepted the suggestion that "Blasting Area'' signs be displayed along the edge of blasting areas which come within 50 feet of roads within the permit area or within 100 feet of any public road right-of-way, in accordance with Section 761.11(d) of these regulations. The 50-foot distance was chosen for mine roads, since employees will be using those roads instead of the public. All employees on the operation should be informed when the blast is to occur. As a result, a lesser distance is more appropriate for posting the "Blasting Area'' signs. These specific distances were adopted to further clarify the situation in which "Blasting Area'' signs should be displayed. The implementation of these distances will make the inspection and enforcement process simpler. Section 816.11(f)(2) was implemented to be in conformance with the provisions of Section 816.65(e). The reader is directed to the preamble on Section 816.65(e) for further discussion. Because of the minor conflict with MSHA regulations, instead of placing a sign reading "Blasting Area'' at all entrances to the permit area from public roads, a sign reading "Warning! Explosives in Use'' will be required, as stated in Section 816.11(f)(3).

816.11(g).

Adequate marking of topsoil storage areas is required around all areas utilized to stockpile topsoil or other designated subsoils pursuant to Section 816.23. A few commenters felt that requirements for topsoil markers should be deleted in their entirety. Section 515(b)(5) of the Act specifies the removal of topsoil from the land in a separate layer and requires attention to topsoil handling, storage, and preservation. Such attention suggests clear identification of topsoil storage areas. Topsoil identification will assist operators in complying with the regulations and will aid citizens and regulators in enforcing them. Based on this rationale, Section 816.11(g) was not changed.

SECTIONS 816.13-816.15 Casing and sealing of drilled holes.

Except for the differences noted below, Sections 816.13- 816.15 are substantially identical to the underground mining performance standards in Sections 817.13-817.15. The reader is referred to the portions of the preamble for Part 817 which discuss Sections 817.13-817.15, for information concerning the technical basis, alternatives considered, statutory authority and disposition of comments for these Sections. In addition to the Sections of the Act cited in those portions of the preamble, these Sections are based on Section 515 of the Act. While the Office considers the effects of improperly protected holes and entryways to be sufficiently similar in surface and underground mining to warrant substantially identical performance standards, the distinct differences between surface and underground mining operations do require that certain parts of these Sections reflect these distinct differences. This is illustrated by the references in Section 817.15 to shafts, drifts, adits, and entryways_references not specifically stated in Section 816.15. Additional differences are shown in Sections 816.14 and 816.15, which deal respectively with the temporary sealing of drilled holes and other underground openings and the permanent sealing of drilled holes and other underground openings.

700 SECTIONS 816.21-816.25 Topsoil.

Authority for these regulations is contained in Sections 102, 201, 501, 503, 504, 507, 508, and 515 of the Act.

The technical literature used in preparing Sections 816.21-816.25 includes the following: 1. Aldon, F., 1978. Reclamation of Coal-mined Land in the Southwest, Jour. of Soil and Water Const., Vol. 33, No. 2, pp. 75 79.

2. Baker, James B. and Broodfoot, W. M. 1977. Site Evaluation For Light Important Southern Hardwoods, U.S.D.A., Forest Service General Technical Report 80 14.

3. Carman, W. H., 1975. Forest Site Quality Evaluation in the United States, Advances in Agronomy, Vol. 27 Academic Press, Inc., pp. 225 226.

4. Colorado, Rules and Regulations of the Land Reclamation Board, 1976 pp. 1 25.

5. Lull, H. W., 1959. U.S.D.A., Forest Service, Misc. Pub. No. 768.

6. McCormack, E., 1976. Soil Reconstruction: Selecting Materials For Placement In Mine Reclamation, Mining Congress Journal.

7. McCormack, E. 1974. Research and Applied Technology Symposium, 2d, Oct. 22 24, Louisville, Ky., pp. 150 162.

8. Montana, Rules and Regulations adopted pursuant to Title 50, Chapter 10, R.C.M. 1947. (1978) 9. Plass, W. T., 1978. Reclamation of Coal-mined Land in Appalachia, Jour. of Soil and Water Cons., Vol. 33, No.2, pp. 56 61.

10. Power and others, 1978. Reclamation of Coal-mined Land in the Northern Great Plains, Jour. of Soil and Water Cons., Vol. 33, No, 2, pp. 69 74.

{15139}11. U.S. Department of Agriculture, Soil Conservation Service, 1975 Soil Taxonomy, Agriculture Handbook No. 436, and U.S. Department of Agriculture, Soil Conservation Service, Agriculture Handbook No. 18.

These sections contain regulations for achieving the requirements of Sections 515(b) (5) and (6) of the Act, as well as certain of the provisions relating to revegetation, protection of the hydrologic balance, minimization of air pollution, and prompt reclamation. These sections require that persons conducting surface mining activities remove topsoil or other approved plant-growth material before beginning mining operations, save it for later use in a manner conducive to protecting the primary root medium from contamination and erosion, and redistribute it in a manner which will enhance its productivity. Systematic handling and storage practices can protect physical and chemical characterisitics of the soil that are necessary to maintain vegetation while it is in storage and after it has been redistributed onto the regraded area. These regulations are intended to minimize water pollution and provide a medium for plant growth capable of returning mined land to a condition and/or use equal to or higher than that before mining.

SECTION 816.21 Topsoil: General requirements.

Numerous commenters voiced concern that Section 816.21(a) could prevent mixing of the B and C horizons or other supplemental materials, and that selected overburden materials should not be removed before surface disturbance. According to these commenters, the requirement "as a separate operation'' could also restrict movement of topsoil materials during regular mining operations and increase compaction. The phrase "as a separate operation'' is not intended to require an operation separate and apart from the regular ongoing mining program, but the topsoil to be saved must be removed as a separate layer and as a logical step in the mining process. Thus, when practical, the material should be moved only once from its original location to the place where it should rest permanently as a part of the new soil. Nor was the intent to prevent the mixing of the soil strata if the resulting soil has been determined to be equal to or more suitable for vegetation as provided in Section 816.21(e). This Section has been revised to better assure that its intent is clear.

A commenter suggested that there was not an obvious, impelling reason for emphasizing that A horizon materials should constitute the definition of topsoiling material. The Office agrees that topsoil is a general term that is used in at least four ways (Agriculture Handbook, No. 18, p. 185). In an effort to avoid confusion, the Office has elected to define topsoil in accordance with one of those common usages and to use the term "topsoil or substitute materials'' when making reference to specific topdressing material. Further, the Office recognizes that some sites may not contain topsoil as defined in these regulations and, when that is the case, paragraph 816.22(e) is applicable.

700 A commenter suggested that OSM require several feet of subsoil to be saved and used to separate the topsoil from the spoil in all reclamation. This commenter felt that only in this way could the operator be sure that the subsoil is nontoxic. The Office decided that healthy subsoil will be assured under the requirements of Sections 816.22, 816.48, and 816.103 which assure, respectively, that enough topsoil or a combination of topsoil and a substitute or supplemental material is preserved to ensure productivity (including, in some cases, horizons below the A horizon), that toxic materials are promptly identified and properly disposed of, and that at least 4 feet of nontoxic cover is placed over toxic material remaining after mining.

Commenters recommended that a clause be added to this Section exempting premining activities from the separation of vegetation from the topsoil removed, as well as stockpiling of the surface material removed. The Office has determined that a statement in Section 816.21 or 816.22 that would exempt activities that "normally precede mining operations'' from topsoil removal is not warranted since applicable exemptions are set forth in the regulations for the activity involved (see for example, Sections 816.152(d), 816.162(d), and 816.172(d), which cover topsoil handling associated with road construction).

Several commenters suggested deleting the reference to Section 816.23 from Section 816.21(b) because Section 816.23 requires stockpiling only when it is impractical to redistribute topsoil immediately. The Office believes that reference to Section 816.23 is needed to further identify the topsoil storage and stockpile requirements. Therefore, the commenters' suggestion has been rejected.

Several commenters were concerned that it may not be desirable or environmentally sound to re spread topsoil material "immediately'' following the final grading. They contended that topsoil material should not be re spread until the graded area has had time to settle; thus, the word "immediately'' should be removed from Paragraph (b) of this Section. The Office has rejected these comments because the regulatory authority can rely on the term "when it is impractical to promptly redistribute'' of Section 816.23(a) and require stockpiling if it appears that immediate re spreading would be impractical because of potential settling problems.

SECTION 816.22 Topsoil: Removal.

The requirements of Section 816.22 are essential for reconstructing a plant growth medium (soil) that will create the most favorable qualities for plant growth. Soil profiles vary widely in thickness, from mere films to those many feet thick. Some of the thicker deep layers may need to be examined because of their importance to drainage and other factors (Agricultural Handbook No. 18, p. 147). Also, plant roots require soil horizons that are able to supply adequate water, air, and nutrients (Agricultural Handbook No. 18, p. 249). Thus, the friable nature of the A horizons makes them the most favorable material for seedbeds among existing materials at most sites.

McCormack (1976) stated: "In most areas, the A horizon of natural soil is vastly superior to any underlying soil horizon or geologic strata. Even if it is only 3 or 4 inches thick, careful handling and return of this horizon to the surface is required for most successful reclamation. The soil survey indicates the thickness of the A horizon and properties that are important to reclamation, including texture, structure, organic matter content, and pH.'' To mix the various soil horizon, during removal could be counterproductive to restoration of the disturbed area to a level at least equal to the premining capability.

The regulatory authority might require removal and separation of the B horizon or portions of the C horizon or other substrata if necessary to obtain soil productivity. Plass (1978, p. 57) states that proper topsoiling may involve the removal and storage of the A, B, and C horizons. McCormack (1976, p. 19) states that: "Instances where the geological strata is better suited for the productive growth of plants, although uncommon, do exist in a few areas and should be recognized before final plans for excavating and regrading are made.'' Similarly, the Montana rules and regulations (sections 26 2.10(10)S10280(8)(e) and 26 1.10(10)S10340(6)) provide for the use of plant-growth materials, other than topsoil, when those materials are determined superior in production potential to the topsoil of a disturbed area.

Agricultural Handbook No. 18 states that "Some plant roots penetrate to much greater depths than commonly believed.'' Also, McCormack (1976) wrote that "Most A horizons are less than 10 inches thick_too thin for a favorable root zone for most plants. Other favorable material must be placed below the A horizon in order to create a favorable root zone several feet in thickness.'' In most areas the B horizon is more satisfactory in the root zone than is material from geologic strata, but McCormack says these materials need evaluation and the one most suited to restoring production should be chosen. The lower horizons ordinarily possess qualities that are less favorable for plant growth. Thus, to mix these materials will ordinarily lessen the productive potential. However, mixing or the use of substitute material is authorized under Section 816.22 when these practices can be advantageous to establishing permanent vegetation and restoring disturbed area to the premining production potential. {15140}The mixing of topsoil and selected overburden is an acceptable practice when the mixture produces a soil medium more suitable for land-use capability and productivity than topsoil. Alternative strata may be used as a growth medium when topsoil is either of inadequate quality or quantity. Colorado and Montana, in their regulations, recognize the importance, under certain conditions, of providing for the use of overburden other than topsoil. While McCormack (1976) states that vertical sections above coal formations generally are widely varied in their suitability for covering a disturbed area, he goes on to state: "Instances where the geological strata are better suited for the productive growth of plants, although uncommon, do exist in a few areas and plans for excavating and regrading are made.'' All determinations of suitability of various horizons and their appropriate handling ought to be based on previously performed analyses and adequate field trails.

Paragraph (a): Timing.

Several commenters indicated that the language in this paragraph implies that the vegetative cover should be cleared from the entire area before removing the topsoil. Thus, it was suggested that "all areas'' be replaced with "immediate areas.'' Also, they contended that the term "vegetative cover'' is too broad and could be interpreted as requiring the removal of all organic material. The Office agrees with these comments because removing the vegetative cover from more than the immediate area to be affected would be impractical and could be environmentally damaging. In reviewing this paragraph, the Office believes that deleting the word "all'' will make it clear that operators are not required to remove vegetation from the entire permit area before beginning the topsoil removal operation. However, the Office believes that the language of this paragraph clearly states that only the vegetative cover that could interfere with the use of the topsoil need be cleared. Therefore, this part of the commenters' suggestion has not been accepted.

Commenters requested clarifications concerning the requirement for the removal of topsoil for roads, sedimentation structures, or other related activities that normally precede mining operations. Topsoil-removal exclusions or requirements for specific activities are covered in the regulations sections for those activities (for example, Sections 816.152 and 816.162 (topsoil removal for roads) and Section 816.46 (sedimentation structures)). Therefore, this paragraph is unchanged.

700 Paragraph ( b ) : Materials to be removed.

Numerous comments were received objecting to the provision for removal of all topsoil. Commenters generally argued that this provision was far too broad and does not consider such factors as low productivity, rocky soils, operator safety on steep slopes, machine technology, suitability of topsoil, topography, and vegetative cover. They contended that the Office lacks justification to require all topsoil to be removed with no consideration given to the aforementioned factors. This paragraph is intended to implement the mandate of section 515(b)(5) of the act, which the Office believes requires removal of all topsoil except in those situations where removal of substitute material is approved. The exception for the use of substitute materials enables the regulatory authority to consider those factors listed as concerns by the commenters.

Paragraph ( c ) : Material to be removed in thin-topsoil situations. Commenters contended that Paragraph (c) ignores situations where it might be appropriate and beneficial to salvage at least portions of the B horizon along with the A horizon, irrespective of the A horizon thickness. The requirement of 6 inches is intended to be a minimum. Section 816.22(d) authorizes the regulatory authority to require that additional material be saved if necessary to ensure soil productivity.

Commenters argued that the regulations ignore situations where there is no topsoil and no surface material suitable for plant growth. In order to make it clear that substitutes and supplements can be used in these situations, the Office has added a reference to Paragraph (e) of this Section.

Paragraph (d): Subsoil segregation.

Numerous comments were received objecting to this paragraph. Commenters generally argued that permitting the regulatory authority to impose a requirement to separate and segregate the B and C horizons is beyond the scope of Section 515(b)(5) of the Act. This separation and segregation may be necessary in some situations to meet the requirements of Section 515(b)(6) of the Act and for the land to be restored to a condition capable of supporting its premining use. The Office has, therefore, elected to retain the requirements so the regulatory authority may require separation of the horizons when necessary to obtain soil productivity. Powers and others (1978, p. 73) found that replacing topsoil (primarily A horizon material) and subsoil (primarily B horizon) in separate layers was superior to mixing the two materials. (See Aldon, 1978, p. 77).

Paragraph (e): Topsoil substitutes and supplements.

Paragraph (e) of this section was incorrectly numbered in the proposed regulations, and the numbering has been corrected.

A commenter noted that toxicity of the overburden material should not be based on sulfide content alone, because neutralizing material is often available in the overburden that can be used to reduce the pH level. Since some strata contain neutralizing material that can be used to prevent excessive acidity, the Office concures that the analysis should be expressed in terms of net acidity or net alkalinity. (See Plass, 1978, p. 57; Grandt, 1978 p. 64.) A number of commenters argued that the test for nitrogen may not always be essential and that the determination of need for the test should be made locally. The Office agrees, and the need for tests of nitrogen will be determined by the regulatory authority.

Commenters contended that conventional wet or dry oxidation methods of determining organic matter reflect geologic carbon as well as recent soil organic materials. Since carbonaceous material that has little value for plant nutrition will be reflected in tests for organic matter, this test has been deleted as a general requirement. It may be required when determined necessary by the regulatory authority.

Commenters pointed out that water-holding capacity is associated with soil texture and soil structure. They argued that structure will be modified by moving the soil and that measuring the water-holding capacity of the undisturbed material before mining will not be a reliable indicator of water-holding capacity of the soil after mining. The Office concurs, and the requirement for a specific test for water-holding capacity was deleted and is now at the discretion of the regulatory authority. Several commenters stated that the proposed regulations in Sections 816.22(e) and (e)(1) are not consistent in that the first paragraph says "equal to or more suitable'' and the second says "more suitable.'' This was a valid comment and the Section has been rewritten accordingly.

700 {15141}A number of commenters responded to the requirement that qualified soil scientists and agronomists certify test data. One suggested that additional professionals, such as geologists and foresters, should be added to this list. Other commenters stated there were no standards for approving laboratories; therefore, it would be sufficient to have the soil tests performed by a laboratory using standard testing procedures. The Office has determined that the regulatory authority approval of a laboratory using standard procedures is adequate to assure reliability of the test results, because standard laboratory procedures exist that are regionally accepted for soil analysis.

A commenter suggested deleting "segregated'' from paragraph (e)(4). It was suggested that this change was necessary to allow the mixing of strata in areas where it could be shown that the mixed overburden is equal to or more suitable for the approved postmining land use than is the available topsoil. The Office has determined that these regulations provide for the mixing of strata under paragraph (e)(1) and that the wording of (e)(4) should be retained to assure that substitute materials are segregated when necessary to protect the substitute materials from contamination by materials unsuitable for plant growth.

Paragraph (f): Limits on topsoil removal area.

A commenter suggested deleting paragraph (f)(2) because it is inconsistent with the heading "topsoil removal'' and is duplicative of Section 816.24(b)(3). The provisions of paragraph (f) provide guidance for limiting the size of the area from which topsoil is removed at any one time, and Section 816.24(b)(3) relates to redistribution after removal. Thus, the Office elects to retain paragraph (f)(2) of Section 816.22 to provide for limiting the size of the area of topsoil removal so this variable can be controlled, thereby minimizing air pollution and disturbance to the hydrologic balance that could result when extensive areas of topsoil are removed before actual mining of the area.

A commenter suggested adding a new paragraph called "Toxic Topsoil'' to Section 816.22. The paragraph, as proposed, would require toxic topsoil to be treated like all other toxic materials. Section 816.103 of these regulations provides direction in handling all acid and toxic-forming materials. The Office has determined that the toxic surface layer would be considered as toxic material under Section 816.103 and that the proposed addition to the regulations is not necessary.

SECTION 816.23 Topsoil: Storage.

Section 816.23 is intended to protect the physical and chemical qualities of topsoil while that material is being stored. Plass (1978, p. 57) writes that "planned placement may segregate material suitable for revegetation,'' and McCormack (1976) states that burying the A and B horizons under many feet of spoil during a surface mining operation is not compatible with full restoration of productive potentials. The requirements of this Section are essential for protecting the quality of the topsoil and other materials that are to be distributed as the surface layer. Thus, initial placement must be selective so as to protect the material from wind and water erosion and protect the physical and chemical qualities of soil materials while those materials are being stored. For example, a vegetative cover may be required immediately after a portion of the stockpiled material is in place, if the growing season permits or if it is required for stability and to keep important nutrients from breaking down and leaching out.

The removal prohibition is intended to minimize chemical and physical losses that may occur when soils are handled excessively. Likewise, the Office recognizes that it may sometimes be necessary to move stockpiled materials before they are redistributed. These regulations allow removal from one stockpile area to another area after regulatory authority approval is obtained.

A commenter proposed that stockpiling of topsoil for roads associated with coal exploration be eliminated from the regulations. It was argued that only a minimal amount of surface material need be removed to allow 4-wheel-drive vehicles to get to and from the site and that the surface material can be pushed to the side of the road and redistributed throughout the distributed area immediately after the drilling site is evacuated. The commenters' concerns are dealt with in the preambles to Part 815 and Sections 816.150 816.176.

Commenters suggested that requiring both annual and perennial plants to be seeded may not be appropriate, realistic, or cost effective. The Office concurs that the seed to be used should be determined according to site and operational situations, and those situations are provided for under Paragraph (b)(1)(ii).

Commenters wanted this Section to require that stockpiles be seeded or planted immediately, or that mulch be used when temperatures are too low to establish vegetation when needed to control erosion. Section 816.113 of the regulations requires seeding or planting during the first normal period favorable for planting conditions, and mulching is required when necessary to protect the soil from erosion. Thus, the proposed language would be repetitive of other sections and was not deemed necessary in this section.

SECTION 816.24 Topsoil: Redistribution.

This Section requires that regraded land be scarified or otherwise treated as required by the regulatory authority to eliminate slippage and promote root penetration. Scarification may be conducted after topsoiling when the regulatory authority approves. The person conducting the surface mining activity is required to redistribute topsoil and other materials to a uniform stable thickness, to prevent excessive compaction, and to protect the topsoil from wind and water erosion before and after it is seeded and planted.

McCormack (1976) wrote that "of greater importance than any other factor in achieving successful reclamation of surface mined land is the nature of the soil left at the surface after mining. The nature of this soil determines the choices available for plant species.'' McCormack then stated that "Soils should be reconstructed so as to have a sequence of horizons chosen from the best available soils and geologic strata. This will create the most favorable qualities for plant growth.'' The topsoil must be uniformly redistributed in a manner that assures placement and compaction compatible with the needs of the species that will be used to restore the disturbed area to its premined potential.

700 Lull (1959, p. 27) found that soil compaction drastically reduces the pore space through which water moves in the soil, thereby reducing infiltration and percolation, increasing runoff, and encouraging erosion. Baker (1977, p. 2) said the growth of hardwoods depends on the following soil factors: (a) Soil physical condition, (b) moisture availability during growing season, (c) nutrients available, and (d) aeration. These same factors must be considered so that the redistributed soil layers will support the vegetation required under Sections 816.111 816.117. Under Section 816.24, compaction that restricts root penetration must be avoided during topsoil redistribution since closely packed soil can be relatively impermeable (Powers and others, 1978, pp. 71 72). Numerous commenters argued that the requirement for scarification in all cases is unnecessary and that the slippage potential is low or nonexistent on level or nearly level lands and that the need for scarification depends upon site conditions such as soil type, soil depth, compaction of spoil, climate, and topography. Thus, rocky or sandy overburden often is too loose and unconsolidated to create slippage surfaces. Hence, mandatory scarification before replacement of topsoil may not serve the objective of protection of topsoil from contamination on all sites. Further, it was contended that compaction depends upon equipment used and overburden material characteristics. The regulation as written provides that regraded land shall be scarified or otherwise treated. Therefore, a change in the regulation is not necessary, since the method to be used to eliminate slippage may be determined on a site-by-site basis.

SECTION 816.25 Topsoil: Nutrients and soil amendments.

This Section sets forth soil nutrient and amendment provisions to ensure that the surface soil layer will support the revegetation requirement of the postmining land use. The soil tests that are used to determine soil productivity and fertilizer and soil-amendment needs are to be performed by a qualified laboratory using standard methods approved by the regulatory authority.

Like Section 816.22, Section 816.25 provides for utilization of the results of soil tests, trials, analyses, and surveys required by Section 779.21 of these regulations. The availability of mineral elements essential to plant growth varies considerably in strata of the overburden. This wide variation in available plant nutrients makes it advisable to sample the surface material to determine if the proposed land use and vegetative plan is feasible (Plass, 1978, p. 58). If the strata of overburden contain good supplies of mineral nutrients, these materials if properly used on the mined and graded lands will provide adequate nutrients. However, some soil materials will require the addition of amendments to establish vegetation that can be sustained on the disturbed area (Grandt, 1978, p. 64, and Aldon, 1978, p. 78).

A commenter suggested a rewrite of this Section that would specify the necessary chemical analysis. The provisions of this new section, as suggested, would include guidance on representative samples, limestone fineness and depth of incorporation, and frequency of testing. The Office believes that the suggested language is duplicative of the provision contained in Section 816.22(e), and that analysis details should be developed by the regulatory authority; therefore, the commenter's alternative has not been accepted.

A commenter suggested deletion of the phrase "in the amounts determined'' and the inclusion of "if shown to be required'' by soil tests "and known plant nutrient requirements'' to assure that the basis for making lime and fertilization recommendations was correlated with crop responses in the field. Further, it was stated that many native species of plants have not been extensively analyzed for nutrient requirements and that soil tests by themselves cannot provide enough information to prescribe nutrients. The Office rejects this recommendation because the Section clearly indicates that the recommendations are to meet the revegetation requirements and are not a blanket requirement to apply nutrients or amendments.

Numerous commenters expressed various opinions on requiring that soil tests be certified by a soil scientist or agronomist. Some contended that laboratories conducting soil tests may not have agronomists or soil scientists on their staff, yet the laboratory is qualified to conduct soil tests. Other commenters said that approval of the laboratory was not necessary, only the certificaton by an agronomist or soil scientist; and a third group said that the regulatory agency should be restricted to approving the testing methods.

After careful consideration, the Office has determined that the requirement for certification by a soil scientist or agronomist is not necessary when soil testing is a major activity of the laboratory and the laboratory is approved by the regulatory authority. Therefore, the Office has deleted the requirement for certification by a soil scientist or agronomist because other specialists (for example, analytical chemists or soil scientists) may be equally well qualified to certify the soil-testing procedures and results. To assure that soil tests are conducted by qualified personnel, the Office has accepted the recommendation that tests be performed by a qualified laboratory using standard methods approved by the regulatory authority. This requirement will produce results that can be compared and will be the only necessary control since regulatory authority approval of the laboratory amounts to approval of the qualifications of the laboratory personnel.700 SECTION 816.41-816.57 Hydrologic balance These Sections require that surface coal mining and reclamation operations be planned and conducted so as to minimize disturbance to the prevailing hydrologic balance. The purpose of these requirements is to ensure that both long-term and short-term adverse changes in the hydrologic balance, that could be caused by mining and reclamation activities, will be prevented or minimized both on and off the mine site.

The authority for these Sections is set forth in the Act at Sections 102, 201, 501, 503, 504, 507, 508, 509, 510, 515, 517, 519, 522, 701, 717.

The literature used in writing the performance standards to protect the hydrologic balance includes, in addition to other works cited within the Preamble text: 1. Agricultural Research Service. 1961.

"A Universal Equation for Predicting Rain-Fall Erosion Losses'' USDA, ARS Special Report 22 66, March 1961, 11 pp. (Sec. 816.45 a h) 2. Appalachian Regional Commission and the Kentucky Department for National Resources and Environmental Protection. 1975.

"Surface Mine Pollution Abatement and Land Use Impact Investigation Report'' ARC 71 66 T2, Vol. II, pp. 82 238, Eastern Kentucky University, Richmond, Kentucky, (Secs. 816.42(a b), 816.48(a)(b), 816.50(a)(b), 816.51(b)(c)).

3. Barthauer, G.L. 1971."Pollution control of preparation plant wastes_A research and demonstration project,'' in AIME Environmental Quality Conference, June 7 9, 1971, Washington, D.C. American Institute of Mining, Metallurgical, and Petroleum Engineers, Inc., Paper EQC38. 10 pp. (Sec. 816.42) 4. Bennet, M. and Wilson, D. 1975.

"Clearwater National Forest_watershed analysis procedure:'' U.S. Department of Agriculture, Forest Service, Clearwater National Forest, Idaho, Various Pagings. (Secs. 816.41(d), 816.45(a g)) 5. Bhutani, J., et al. 1975, "Impact of Hydrologic Modifications on Water Quality.'' EPA 600/2 75 007 Office of Research and Development, U.S. Environmental Protection Agency, Washington, D.C. 20460. 530 pp. (Sec. 816.42(a)) 6. Biesecker, J.E., and George, J.R. 1966."Stream Quality in Appalachia As Related to Coal-Mine Drainage,'' 1965. U.S. Geological Survey Circular 526, 27 pp. USDOI Geological Survey, Washington, D.C. (Sec. 816.42(a), 816.50) 7. Bone, S.W., et al. (no date).

"Ohio erosion control and sediment pollution abatement guide.'' Ohio State University, Ohio Cooperative Extension Service Bulletin 594. 19 p. (Sec. 816.45(a g)) 8. Boyson, S.M. 1973.

"Erosion and Sediment Control in Urbanizing Areas,'' Proceedings_Planning and Design for Urban Runoff and Sediment Management. University of Kentucky, Lexington, 1973. pp. 24 29. (Sec. 816.45(a g)) 9. Boyson, S.M., 1975.

"A Procedure for Estimating Urban Sediment Yield.'' Paper presented 1975 Winter Meeting American Society of Agricultural Engineers. Paper No. 75 2545. 12 pp. (Sec. 816.45(a g)) 10. Brackenrich, J.D. 1974.

"Design criteria of sediment control structures in Appalachia.'' American Society of Agricultural Engineers, Winter Meeting, Dec. 10 13, 1974, Chicago, Ill., Paper No. 74 2569, 19 pp. and appendixes. (Secs. 816.42(a), 816.45, 816.46(b), 816.47, 816.49(a)(b), 816.56) {15143}11. Braley, S.A. 1954.

"Acid Mine Drainage: 1. The Problem,'' Mechanization, Vol. 18, No. 1, pp. 87 89, (Secs. 816.50(a)(b), 816.52(a)(b), 816.57) 12. Brune, G.M. 1953.

"Trap Efficiency of Resevoirs.'' Transactions American Geophysical Union, Vol. 34, No. 3, pp. 407 418. (Secs. 816.46(b)(c), 816.47, 816.49(a)(b), 816.56) 13. Calhoun, F.P. 1968.

"Avoiding pollution from refuse disposal.'' Mining Congress Journal, Vol. 54, No. 6, pp. 78 80 (Sec. 816.42) 14. Camp, T.R. 1945.

"Sedimentation and Design of Settling Tanks,'' American Society of Civil Engineers, Transaction, Paper 2285, pp. 895 958. (Secs. 816.46(b)(c), 816.47, 816.49(a)(b), 816.56) 700 15. Caruccio, F.T. 1968.

"An evaluation of factors affecting acid mine drainage production and the ground-water interactions in selected areas of western Pennsylvania,'' in Second symposium on coal mine drainage research, Mellon Institute, Pittsburgh, Pa. Bituminous Coal Research, Inc., Monroeville, Pa. Preprint. Pp. 107 151. (Sec. 816.42, 816.48) I1116. Caruccio, F.T., Ferm, J.C., Horne, John, Geidel, Gwendelyn, and Baganz, Bruce. 1977s. Paleoenvironment of Coal and its relation to drainage quality.

U.S. Environmental Protection Agency. Interagency Energy-Environment Research and Development Series Report EPA 600/7 77 067. 108 pp. (sec. 816.48(a c)) 17. Chen, Charng-Ning. 1975.

"Design of sediment retention basins,'' in Haan, C.T., editor, National Symposium on Urban Hydrology and Sediment Control, July 28 31, 1975, University of Kentucky, Lexington. Proceedings. Pp. 285 298. (Secs. 816.46(b)(c), 816.47, 816.49(a)(b), 816.56) 18. Coalgate, J.L., Akers, D.J., and Frum R.W. 1973.

Gob pile stabilization, reclamation, and utilization.

U.S. Office of Coal Research, Research and Development Report No. 75, Interim report No. 1. 127 pp. (Sec. 816.42) Report No. 75, Interim report No. 1. 127 pp. (Sec. 816.42) 19. Collier, C.R., Pickering, R.J., and Musser, J.J. 1970.

"Influences of Strip Mining on the Hydrologic Environment of Parts of Beaver Creek Basin, Kentucky 1955 66,'' U.S. Geological Survey Prol. Paper 427_C, 80 pp. (Secs. 816.41(d), 816.42(a)) 20. Curtis, D.C. 1976 "A Deterministic Urban Storm Water and Sediment Discharge Model,'' in Barfield, B.J. (ed.) Proc. National Symposium on Urban Hydrology, Hydraulics and Sediment Control, July 27 29, University of Kentucky, Lexington, Kentucky, pp. 151 162. (Secs. 816.42(a), 816.45(a-h), 816.46(b)(c), 816.47, 816.49(a)(b), 816.56) 21. Curtis, W.R. 1971(a).

"Strip Mining, Erosion and Sedimentation,'' American Society of Agricultural Engineers, Trans. Vol. 14, No. 3, pp. 434 346. (Sec. 816.45(a-h)) 22. Curtis, W.R. 1971(b)."Terraces reduce runoff and erosion on surface-mine benches.'' Jour. Soil and Water Conservation, Vol. 26, No. 5, Sept.-Oct. 1971, pp. 198 199. (Sec. 816.45(a-g)) 23. Curtis, W.R. 1971(c).

"Vegetating strip-mine spoils for runoff and erosion control,'' in Revegetation and Economic use of Surface Mined Land and Mine Refuse Symposium, Dec. 2 4, 1971. Pipestem State Park, W. Va. Proceedings, pp. 40 41. (Secs 816.42(a), 816.45(a-g)) 24. Curtis, W.R. 1972(a).

"Chemical changes in streamflow following surface mining in eastern Kentucky: (U.S. Department of Agriculture, Forest service, Northeastern Forest Experimentation Station),'' in Fourth Symposium on Coal Mine Drainage Research, April 26 27, 1972, Mellon Institute, Pittsburgh, Pa. 13 pp. (Secs. 816.41(a, b, d) 816.42(a)(b)) 25. Curtis, W.R. 1972(b).

Strip-mining increases flood potential of mountain watershed, in National Symposium on watersheds in Transition, June 19 22, 1972, Fort Collins, Colo., American water Resources Association and Colorado State University. Proceedings pp. 357 360. (Secs. 816.41(b)(d), 816.45(a-g)) 26. Curtis, W.R. 1973(a).

Effects of strip mining on the hydrology of small mountain watersheds in Appalachia, Paper II 2, in Hutnik, R.J., and Davis, grant, eds., Ecology and reclamation of devastated land, Vol. 1: Gordon and Breach, New York Vol. 1, pp. 145 157. (Sec. 816.41(d)) 27. Curtis, W.R. 1974.

Sediment yield from stripmined watersheds in eastern Kentucky, in Second Research and applied Technology Symposium on Mined land Reclamation, at Coal and the Environment Technical Conference, Oct. 22 24, 1974, Louisville, Ky.: National Coal Association, Washington, D.C., pp. 88 100. (Secs. 816.41(a, b, d), 816.45(a-g), 816.52(a)(b)) 28. Curtis, W.R. 1977.

Surface mining and the flood of April, 1977: U.S. Department of Agriculture, Forest Service Research Note NE_248, 4 pp. (Northeastern Forest Experiment Station, Upper Darby, Pa.) (Sec. 816.41(d)) 29. Czapowskyj, M.M. 1976.

Annotated bibliography on the ecology and reclamation of drastically disturbed areas, T1U.S. Department of Agriculture, Forest Service General Technical Report NE 21, 98 pp. (Northeastern Forest Experiment Station, Upper Darby, Pa.) (Sec. 816.41(d)) 30. Davis, G. 1967.

Hydrology of contour strip mines in the Appalachian region of the United States, in 14th Congress, International Union of Forest Research Organizations, August 1967, Munich, Germany: Proceedings, sec. 11 pp. 420 433. (Sec. 816.41(d), 816.43(d), 816.50) 31. Delk, R. 1963.

Probable hydrological effects of clear-cutting on the Flathead National Forest_vegetation manipulation guidelines: U.S. Department of Agriculture, Forest Service, Flathead National Forest, Montana, 65 pp. (Sec. 816.41(d), 816.45(a-g)) 32. Dick, R.I. 1976.

Folklore in the Design of Final settling Tanks. Journal water Pollution Control Federation, Vol. 48, No. 4, pp. 633 644, 1976. (Secs. 816.46(b-d), 816.47, 816.49(a)(b), 816.56) 33. Dierks, H.A., Whaite, R.H., and Harvey, A.H. 1971.

Three mine fire control projects in northeastern Pennsylvania.

U.S. Bureau of Mines Information Circular 8524. 53 pp. (Sec. 816.50(a)(b), 816.51(b)(c)) 34. Dollhopf, D.J., Jensen, I.B. and Hodder, R.L. 1977.

T3Effects of surface configuration in water pollution control on semi-arid mined lands: Montana State University, Agricultural Experiment Station, Research Report 114, 179 pp. (Sec. 816.42(a), 816.50(a)(b), 816.51(a-c)) 35. Dunrud, C.R. 1976.

Some engineering geologic factors controlling coal mine subsidence in Utah and Colorado.

U.S. Geological Survey Professional Paper 969. 39 pp. (Sec. 816.42, 816.54, 816.55) 36. Dyer, K.L., and Curtis, W.R. 1977.

Effect of strip mining on water quality in small streams in eastern Kentucky, 1967 1975: U.S. Department of Agriculture, Forest Service Research Paper NE 372, 13 pp. (Secs. 816.42(a), 816.52(b), 816.55(b)) 700 37. Fair, G.M. and Geyer, J.C. 1961.

Water Supply and Waste Water Disposal, John Wiley and Sons, Inc., pp. 584 615. (Sec. 816.46(b), 816.47, 816.49(a)(b), 816.56) 38. Farmer, E.E. and Fletcher, J.E. 1976.

Highway Erosion Control Systems: An Evaluation Based on the Universal Soil Loss Equation. In Soil erosion: Prediction and Control.

T1Soil Conservation Society of America, Ankeny, Iowa. pp.12 21. (Sec. 816.45(a g)) 39. Feder, G.L.; Lee, R.W.; Busby, J.F.; and Saindon, L.G. 1977. Geochemistry of ground waters in the Powder River coal region, in Geochemical survey of the western energy regions, fourth annual progress report, July 1977. U.S. Geological Survey Open-File Report 77 872. pp. 173 179. (Secs. 816.50, 816.51) 40. Feder, G.L. and Saindon, L.G. 1976.

Geochemistry of ground waters in the Fort Union coal region, in Geochemical survey of the western energy regions, third annual progress report, July 1976. U.S. Geological Survey Open-File Report 76 729. pp. 86 93. (Secs. 816.50, 816.51) {15144}41. GAI, 1977. (See U.S. Bureau of Mines 1977c.) 42. Galbraith, A.F. 1973.

A water yield and channel stability analysis procedure_Kooteni National Forest: U.S. Department of Agriculture, Forest Service, Kooteni National Forest, Montana, 38 pp. (Secs. 816.41(a), 816.43(c), 816.44(b)).

43. Garn, H.S., and Malmgren, R.C. 1973.

Soil and water resources of the Bitterroot National Forest, Montana, pt. 1: U.S. Department of Agriculture, Forest Service, Bitterroot National Forest, Montana 107 pp. (Secs. 816.41(d), 816.45(a g)) 44. Gary, M.; McAfee, R., Jr.; and Wolf, C.L.; editors. 1974s.

Glossary of geology.

American Geological Institute. 805 pp. (Gen'l Secs. 816.41 .57.) 45. Gasper, D.C. 1976s.

Harmful impacts of current surface mine reclamation in infertile trout streams and their future.

(Presented at the 1976 Northeast Fish and Wildlife Conference, Hershey, Pa., April 26 29, 1976.) 23 pp. (Sec. 816.48) 46. Gasper, D.C. 1978s. Upper Buckhannon River Acid Sources. 21 pp. (Sec. 816.48) 47. Gemmell, R.S. 1971.

Mixing and Sedimentation in Water Quality and Treatment_A Handbook of Public Water Supplies, 3rd edition (Prepared by the American Water Works Association, Inc.), McGraw Hill, pp. 123 157, (Secs. 816.42(a)(b), 816.55(b)) 48. Gilley, J.E., Gee, G.W., Bauer, A., Willis, W.O. and Young, R.A. 1977. Runoff and Erosion Characteristics of Surface-Mined Sites in Western North Dakota.

Amer. Society of Agricultural Engineers, Transactions Vol. 20, No. 4, pp. 697 700, 704. (Secs. 816.41(a, b, d), 816.45(a g)) 49. Gregory, K.J. and Walling, D.E. 1973.

Drainage Basin Form and Process, John Wiley and Sons, N.Y. 456 pp. (Secs. 816.41(d)) 50. Grim, E.C., and Hill, R.D. 1974.Environmental Protection in Surface Mining of Coal, U.S. Environmental Protection Agency, EPA 670/2 74 093, 276 pp. (General Sec. 816.41 .52, 816.55, 816.57(a)) 51. Grubb, H.F., and Ryder, P.B. 1972.

Effects of Coal Mining on the Water Resources of the Tradewater River Basin, Kentucky, U.S. Geological Survey Water Supply Paper. 1940, 83 pp. (Secs. 816.42(a), 816.50, 816.52(b), 816.55(b)) 52. Haan, C.T. 1977.Statistical Methods in Hydrology, Iowa State University Press, Ames, Iowa. 378 pp. (Sec. 816.46(b), 816.47, 816.49(a)(b), 816.56) 53. Haan, C.T. and Barfield, B.T. 1978.

Hydrology and Sediment Control from Surface Mined Areas, College of Engineering, Univ. of Kentucky, Lexington Chapters 1 6, Various Pagings, (Secs. 816.46(b d), 816.47, 816.49(a)(b), 816.56) I1154. Hamilton, D.A., and Wilson, J.L. 1977.

A generic study of strip mining impacts on groundwater resources.

Massachusetts Institute of Technology, Department of Civil Engineering, Ralph M. Parsons Laboratory for Water Resources and Hydrodynamics. Report No. 229 (R 77 28). (Secs. 816.50, 816.51) 55. Hansen, S.P., Culp, G.L., and Stukenberg, J.R. 1969.

Practical Application of Idealized Sedimentation Theory in Wastewater Treatment, Journal Water Pollution Control Federation, Vol. 41. No. 8 Pt. 1, pp. 1421 1444. (Secs. 816.46(b d), 816.47, 816.49(a)(b), 816.56) 56. Hardaway, J.E., and Kimball, D.B. 1976.

Trip report, Environmental Protection Agency research and development activities: Savage mine, Rosebud mine, Big Sky mine, Decker No. 1 mine, proposed East Decker and North Decker mines (Montana), Public Service of Oklahoma No. 1 mine, Bighorn mine, Wyodak mine, Black Thunder mine, Jacobs Ranch mine, proposed Coal Creek mine, Belle Ayr mine, Dave Johnston mine, and Highland uranium mine and mill. Memorandum dated July 10, 1976. (Secs. 816.50, 816.51, 816.57) 57. Hardaway, J.E., and Kimball, D.B. 1978.Coal mining and ground water. Preprint of paper to be presented at seminar on environmental impacts of coal mining and conversion, Poland, October 1978. 19 pp. (Secs. 816.50, 816.51) 58. Hardaway, J.E., Kimball, D.B., Lindsay, S.F., Schmidt, Jack, and Erickson, Larry. 1977b. Subirrigated alluvial valley floors_a reconnaissance of their properties and occurrence on coal resource lands in the interior Western United States, in Fifth symposium on surface mining and reclamation, at NCA/BCR Coal Conference and Expo IV, October 18 20, 1977, Louisville, KY. National Coal Association, Washington, D.C. pp. 61 135. (Secs. 816.50, 816.51) 59. Harrington, J.H. 1977.

Design Procedure for Small Sediment Basins, In the Practical Aspects of Coal Mining, Reclamation and Pollution Control Seminar, July 19 20, 1977, Zanesville, Ohio 6 pp. (Sec. 816.46(b d), 816.47, 816.49(a)(b), 816.56) 60. Herricks, E.E., and Shanholtz, V.O. 1974.Predicting environmental impact of mine drainage on streams: American Society of Agricultural Engineers, Annual Meeting, June 23 26, 1974, Stillwater, Okla. Paper No. 74 2007, 28 pp. (Secs. 816.42(a), 816.55(b)) 61. Hill, R.D. 1976.

Sedimentation ponds_a critical review: U.S. Environmental Protection Agency, Resource Extraction and Handling Division, Industrial Environmental Research Laboratory, Cincinnati, Ohio, duplicated document, 21 pp. (Also published in 6th Symposium on Coal Mine Drainage Research, 1976, Louisville, Ky., National Coal Association, Washington, D.C., pp. 190 199. (Secs. 816.46(b d), 816.47, 816.49(a)(b), 816.55(d)) 62. Hill, R.D., and Bates, E.R. 1978.

Acid mine drainage and subsidence: effects of increased coal utilization.

U.S. Environmental Protection Agency, Environmental Protection Technology Series Report EPA 600/2 78 068. 30 pp. (Secs. 816.41, 816.48, 816.57) 63. Hynes, H.B.N. 1970.

The Ecology of Running Waters, University of Toronto Press, 555 pp. (Secs. 816.47, 816.57(a)) 64. ICF, 1977. (See U.S. Council on Environmental Quality and U.S. Environmental Protection Agency, 1977.) 65. Illinois State Department of Mines and Minerals. 1976.

Rule 1307, Engineering procedures for erosion control and water disposal _(c) Diversions, in Rules and Regulations (effective February 6, 1976) pertaining to Surface-Mined Land Conservation and Reclamation Act (PA 78 1295/effective July 1, 1975): p. 37. (Sec. 816.45(a g)) 66. Janiak, H.K. 1975.

Purification of waters from strip lignite mines, in Polish-U.S. Symposium on Environmental Protection of Open-Pit Coal Mines, May 27 29, 1975, Denver, Colo., University of Denver Research Institute. Proceedings, pp. 59 68. (Secs. 816.42(a), 816.55(b)) 67. Janiak, H.K. 1977.Progress in Methodology of Lignite Mine Waters Purification, in 7th Symposium on Coal Mine Drainage Research, 1977, Louisville, Ky., National Coal Association, Washington, D.C. pp. 139 149. (Secs. 816.42(a), 816.55(b)) 68. Johnson, W.M. 1978. Letter from Deputy Administrator for Technical Services, U.S. Soil Conservation Service, Washington, D.C. to Walter N. Heine, Director, Office of Surface Mining, dated June 23, 1978, regarding recommendations for standards for permanent impoundments. (Secs. 816.49(a)(b), 816.55(b)) 700 69. Kao, Teh-Yu, 1975.

Hydraulic Design of Stormwater Detention Basin in Haan, C.T. ed. National Symposium on Urban Hydrology, and Sediment Control, July 28 31, University of Kentucky, Lexington, Proceedings. pp. 299 307. (Secs. 816.46(b-d), 816.47, 816.49(a)(b), 816.56) 70. Karr, J.R. and Schlosser, I.J. 1977.

Impact of Near-stream Vegetation and Stream Morphology on Water Quality and Stream Biota, U.S. Environmental Protection Agency Report, 85 pp. EPA 600/3 77 097. (Secs. 816.44, 816.57) {15145}71. Karr, J.R. and Schlosser, I.J. 1978.

Water Resources and the Land-Water Interface, Science, Vol. 201, pp. 229 234. (Secs. 816.44, 816.57) 72. Kathuria, D.V., Nawrocki, M.A., and Becker, B.C. 1976.Effectiveness of surface mine sedimentation ponds.

(Prepared by Hittman Associates, Inc., Columbia, Md.) U.S. Environmental Protection Agency, Environmental Technology Series EPA 600/2 76 117. 100 pp. (Also available from U.S. Department of Commerce, NTIS PB 258 917.) (Secs. 816.46(b-d), 816.47, 816.49(a)(b), 816.56) 73. Kinney, E.C. 1964.

Extent of Acid Mine Pollution in the United States Affecting Fish and Wildlife, U.S. Department of Interior, U.S. Fish and Wildlife Circular, 191, 27 pp. (Secs. 816.48(a)(b), 816.50(a)(b), 816.51(b)(c), 816.52(b), 816.57) 74. Kosowski, Z.V. 1973.

Control of mine drainage from coal mine mineral wastes; phase II_pollution abatement and monitoring.

U.S. Environmental Protection Agency, Environmental Protection Technology Series Report EPA R2 73 230. 83 pp. (Secs. 816.42, 816.48) 75. Leopold, L.B.

et al.1964.

Fluvial Processes in Geomorphology, W.H. Freeman and Company, San Francisco. 522 pp. (Secs. 816.43(a), 816.44(b), 816.45(a-g), 816.50) 76. Leung, S.S. and Hester, N.C. 1978.

Evaluation of the Volumes and Characteristics of Mine Waste Effluents of Three Strip Mine Localities in Eastern Kentucky and Their Potential Environmental Impacts.

(Report to Argonne National Laboratory, Contract No. 31 109 38 3375, by Eastern Kentucky University, Richmond, Ky. Final report. 81 pp. and appendixes A G. (Secs. 816.42(a)(b), 816.55(b)) 77. Magnuson, M.O. 1974.

Control of fires in abandoned mines in the eastern bituminous region of the United States.

U.S. Bureau of Mines Information Circular 8620. 53 pp. V. (Secs. 816.50(a)(b), 816.51(b)(c)) 78. Maneval, D.R. 1975.Water borne pollutants from refuse piles, in First symposium on underground mining at NCA/BCR Coal Conference and Expo II, October 21 23, 1975, Louisville, Ky. National Coal Association, Washington, D.C. Vol. II, pp. 210 219. (Sec. 816.42) 79. Martin, J.F. 1974.

Quality of effluents from coal refuse piles, in First Symposium on mine and preparation plant refuse disposal, at Coal and the Environment Technical Conference, October 22 24, 1974, Louisville, Ky. National Coal Association, Washington, D.C. pp. 26 37 (Sec. 816.42) 80. May, R.F. and Striffler, W.D. 1967.Watershed aspects of stabilization and restoration of strip-mined areas, T1in Sopper, W.E., and Lull, H.W., editors of Forest hydrology; proceedings of a National Science Foundation advanced science seminar, August 29 September 10, 1965, Pennsylvania State University, University Park, Pa. Pergamon Press, New York. pp. 663 672. (Sec. 816.56) 81. McCarthy, R.E. 1976.

Surface Mine Siltation Control.Washington Irrigation & Development Company, Centralia, Washington, 6 pp. (Secs. 816.42, 816.46(b-d), 816.47, 816.49(a)(b), 816.56) 82. McKenzie, G.D. and Studlick, J.R.J. 1977.

Determination of Spoil-Bank Erosion Rates Using Interbank-Sediment Accumulations.

Ohio State University, Department of Geology and Mineralogy, Columbus, Ohio, 15 pp. (Sec. 816. 45(a-g)) 83. McWhorter, D.B., et al.

1977.Surface and subsurface water quality hydrology in surface mined watersheds (Prepared by Colorado State University, Fort Collins, Colo.) U.S. Environmental Protection Agency Project R802175, 357 pp. (Secs. 816.50, 816.51, 816.52, 816.56) 84. Metcalf & Eddy, Inc. 1972.

Wastewater Engineering, Collection, Treatment and Disposal, McGraw Hill Book Co., New York, pp. 283 295, 448 449. (Secs. 816.46(b-d), 816.47, 816.49(a)(b), 816.56) 85. Meyer, G.J., Schoenberger, P.J. and Huddleston, J.H. 1975.

Sediment Yields from Roadsides: An Application of the Universal Soil Loss Equation. Journal of Soil and Water Conservation. Vol. 30. Nov./Dec. 1975. pp. 289 291. (Secs. 816.46(b-d), 816.47, 816.49(a)(b), 816.56) 86. Meyer, L.D., and Romkens, M.J.M. 1976.

Erosion and sediment control on reshaped land, in Symposium 2, Erosion and sediment control, at the Third Federal Inter-Agency Sedimentation Conference, March 22 25, 1976, Denver, Co. Water Resources Council Sedimentation Committee. Proceedings. pp. 2 65 to 2 76. (Sec. 816.45(a-g)) 87. Musser, J.J. 1965.

Acid mine drainage in the Appalachian region, Sheet 9 in Water Resources of the Appalachian region, Pennsylvania to Alabama. U.S. Geological Survey Hydrological Investigations Atlas HA 198 (11 sheets). (Sec. 816.42) 88. Neibling, W.H., and Foster, G.R. 1977.

Estimating Disposition and Sediment Yield from Overland Flow Processes.

In Int. Symp. on Urban Hydrology, Hydraulics and Sediment Control, July 18 21, 1977, Univ. of Kentucky, Lexington, Kentucky. pp. 75 186. (Sec. 816.45(a-g)) 89. Nemerow, N.L. 1963.Theories and Practices of Industrial Waste Treatment, Addison-Wesley Publishing Company, Inc. Reading, Mass. pp. 72 76. (Secs. 816.46(b-d), 816.47, 816.49(a)(b), 816.55(b)) 90. National Academy of Sciences. 1974.

Rehabilitation potential of western coal lands_ A report to the Energy Policy Project of the Ford Foundation. Ballinger Publishing Co., Cambridge, Mass. 198 pp. (Secs. 816.50, 816.51) 91. Northern Great Plains Resource Program, 1974 (Water Work Group, Groundwater Subgroup).

Shallow Groundwater in Selected Areas in the Fort Union Coal Region, U.S. Geologic Survey Open File Report 74 48, 72 pp. (Secs. 816.50(a)(b), 816.51(b)(c)) 700 92. Packer, P.E. 1967.Criteria for designing and locating logging roads to control sediment: Forest Science v. 13. no. 1. 18 pp. March, 1967. (Sec. 816.45(a-g)) 93. Packer, P.E. and Christensen, G.F. 1964.Guide for controlling sediment from secondary logging roads.

U.S. Forest Service, Intermountain Forest Experiment and Range Station, Ogden, Utah, and Northern Region, Missouri, Montana, 42 pp. (Sec. 816.45(a-g)) 94. Pagenkopf, G.K., Whitworth, Clarence, and VanVoast, W.A. 1977. Influence of spoil material on ground water quality.

Energy Communications. Vol. 3, No. 2, pp. 107 126. (Secs. 816.50, 816.51) 95. Pemberton, E.L. and Lara, J.M. 1971.

A procedure to determine sediment deposition in a settling basin, In Part 2, Settling basins, of Section E intake works and desilting basins, U.S. Bureau of Reclamation Sedimentation Investigations Technical Guide Series, 5 pp. 3 figs. (Secs. 816.46(b-d), 816.47, 816.49(a)(b), 816.56) 96. Pennell A.B. 1974.

Conceptual Debris Basin Design Model for Sediment Control on Suburban Twin City Construction.

M.S. thesis, University of Minnesota, July, 1974. 62 pp. (Secs. 816.46(b-d), 816.47, 816.56) 97. Pennington, Dennis. 1975.

Relationship of groundwater movement and strip mine reclamation, in Third symposium on surface mining and reclamation, at NCA/BCR Coal Conference and Expo II, October 21 23, 1975, Louisville, KY National Coal Association, Washington, D.C. Vol. 1, pp. 170 178 (Secs. 816.50 816.51) 98. Pennsylvania Department of Mines and Mineral Industries, Mine Drainage Control Division, (no dates), Design Basis for Settling Basins.

5 pp. (Secs. 816.46(b-d), 816.47, 816.56) 99. Pfankuch, D.J. 1975.

Stream reach inventory and channel stability evaluation_A watershed management procedure.

U.S. Department of Agriculture, Forest Service, Northern Region, 26 pp. (Sec. 816.43(a), 816.44(b)) 100. Pietz, R.I., Peterson, J.R. and Lue-Hing, Cecil.

1974. Ground-water quality at a strip-mine reclamation area in west central Illinois, in Second research and applied technology symposium on mined-land reclamation, at Coal and the Environment Technical Conference, October 22 24, 1974, Louisville, KY National Coal Association, Washington, D.C., pp. 124 144. (Secs. 816.50, 816.51) {15146}101. Plass, W.T. 1975b.

Changes in water chemistry resulting from surface mining of coal on four West Virginia watersheds, in 3rd Symposium on Surface Mining and Reclamation, Proceedings of National Coal Association/Bituminous Coal Research, Coal Conference and Expo II, Oct. 21 23, 1975, Louisville, Ky. National Coal Association, Washington, D.C., v. 1, pp. 152 169. (Secs. 816.42(a), 816.55(b)) 102. Plass, W.T. and Vogel, W.G. 1973.

Chemical properties and particle-size distribution of 39 surface-mine spoils in southern West Virginia U.S. Department of Agriculture, (North-eastern Forest Experiment Station, Upper Darby, Pa), Forest Service Research Paper NE 276, 8 pp. (Secs. 816.42(a), 816.47, 816.49(a)(b), 816.55(b)) 103. Rahn, P.H. 1976.

Potential of coal strip-mine spoils as aquifers in the Powder River Basin. Old West Regional Commission, Billings, Mont. 108 pp. and appendixes I VI (separate book). (Secs. 816.50(a)(b), 816.51(b)(c)) 104. Renfro, G.W. 1975.

Use of Erosion Equations and Sediment Delivery Ratios for Predicting Sediment Yield.

In Present and Prospective Technology for Predicting Sediment Yields and Sources. USDA Publ., ARS S 40, pp. 33 45, Washington, D.C. Sec. 816.45(a-h)) 105. Ripken, J.F., Killen, J.M. and Gulliver, J.S. 1975.

A review of Methods to Separate Sediments from Storm Water Associated with Construction Operations.

Prepared for U.S. Environmental Protection Agency by Univ. of Minn. St. Anthony Falls Hydraulic Laboratory, Minneapolis. Memo. No. M 137.31 pp. (Sec. 816.45(a-h)) 106. Robins, J.D., Hutchins, J.C., and Permenter, D.A. 1977.

Environmental assessment of surface mining methods: Head-of-hollow fill and mountaintop removal (interim report).

(Prepared by Skelly and Loy, Harrisburg, Pa.) U.S. Environmental Protection Agency contract No. 68 03 2356 report. Various pagings. (Sec. 816.42) 107. Rogowski, A.S., and Jacoby, E.L., Jr. 1977.

Water movement through Kylertown strip mine spoil _American Society of Agricultural Engineers, Annual Meeting, June 26 29, 1977, Raleigh, N.C. Paper No. 77 2057, 24 pp. (Secs. 816.50(a)(b), 816.51(b)(c)) 108. Rogowski, A.S., Pionke, H.B., and Broyan, J.G. 1977.

Modeling the impact of strip mining and reclamation processes on quality and quantity of water in mined areas.

A review_Journal of Environmental Quality, v. 6, no. 3, p. 237 244. (Secs. 816.50, 816.51, 816.52(a)(b)) 109. Rogowski, A.S., and Weinrich, B.E 1977.

Modeling water flux on strip-mined land_ American Society of Agricultural Engineers, Annual Meeting, June 26 29, 1977, Raleigh, N.C., Paper No. 77 2061, 17 pp. (Secs. 816.50(a)(b), 816.51(b)(c)) 110. Shumate, K.S.; Smith, E.E.; Dugan, P.R.; Brant, R.A.; and Randles, C.I. 1971.

Acid mine drainage formation and abatement.(Prepared by the Ohio State University Research Foundation.) U.S. Environmental Protection Agency report DAST 42. 82 pp. (Available from U.S. Department of Commerce, NTIS PB 199 835. 82 pp.) (Secs. 816.48, 816.50, 816.51) 111. Sidio, A.D., and Mackenthun, K.M. 1963.

Report on Pollution of the Interstate Waters on the Monongahela River System.

U.S. Dept. of Health, Education, and Welfare, Public Health Service Report. 47 pp. and appendix A D. (Available from U.S. Dept. of Commerce, NTIS PB 227 230). (Sec. 816.41(a-d), 816.50) 112. Simpson, D.G. 1977.

West Virginia Interagency Evaluation Tour, July, 1977, Water quality committee report_U.S. Bureau of Mines, Morgantown, W.Va., Memo. Report, Sept. 9, 1977, 8 pp. (Secs. 816.46(b-d), 816.47, 816.49(a)(b), 816.52(a)(b), 816.55(a-e)) 113. Smith, R.M., Sobek, A.A., Arkle, T., Jr., Sencindiver, J.C., and Freeman, J.R. 1976s. Extensive Overburden Potentials for Soil and Water Quality.U.S. Environmental Protection Agency. Environmental Protection Technology Series Report EPA 600/2 76 184. 311 pp. (Sec. 816.48(a-c)) 114. Spaulding, W.M., Jr., and Ogden, R.D. 1968.

Effects of surface mining on the fish and wildlife resources of the United States.

U.S. Fish and Wildlife Service, Bureau of Sport Fisheries and Resources, Publication 58. 51 pp. (Sec. 816.55) 115. Striffler, W.D. 1973.

Surface Mining Disturbance and Water Quality in Eastern Kentucky, In Hutnik, R.J. and Davis, G. Eds. Ecology and Reclamation of Devastated Land, volume 1, Gordon and Breach, N.Y. v. 1, pp. 175 191, (Secs. 816.42(a), 816.48(b), 816.52(b)) 116. Tennessee Valley Authority, 1971, Surface Mining Reclamation and Conservation Requirements, In Appendix A of Environmental Statement_Policies Relating to Sources of Coal used by the Tennessee Valley Authority for Electric Power Generation, Tenn. Valley Report. TVA OHES EIS 71 4. pp. A 1 through A 10 (Secs. 816.44, 816.57(a)) 117. Todd, D.K., Tinlin, R.M., Schmidt, K.D., and Everett, L.G. 1976. Monitoring groundwater quality: monitoring methodology.

(Prepared by General Electric Co._TEMPO, Santa Barbara, Calif.) U.S. Environmental Protection Agency, Environmental Monitoring Series Report EPA 600/4 76 026. 154 pp. (Sec. 816.52(a)) 118. Tollner, E.W., Barfield, B.J., Haan, C.T., and Kao, T.Y. 1976. Suspended Sediment Filtration Capacity of Simulated Vegetation.

Amer. Soc. Agric. Engr. Transaction, v. 19, pp. 678 682, (Sec. 816.57(a)) 700 119. Tryon, C.P., Parson, B.L., and Miller, M.R. 1978.

Excavated Sediment Traps Prove Superior to Dammed Ones.

Presented at Amer. Soc. Agric. Engr. 1978 Summer Meeting, Logan, Utah, Tech. Paper No. 78 2089, U.S. Forest Service, Rolla, Missouri, 10 pp. (Sec. 816.46(b-d), 816.47, 816.49(a)(b), 816.56) 120. Turner, W.R. 1958.The Effects of Acid Mine Pollution on the Fish Population of Goose Creek, Clay County, Kentucky, Prog. Fish Cult, Volume 20, No. 1, pp. 45 46, (Secs. 816.42(a), 816.48(a)(b), 816.50, 816.52(b), 816.55(b)) 121. U.S. Army Corps of Engineers, 1974.

Recommended guidelines for safety inspection of dams, Appendix D: U.S. Army Corps of Engineers Report to Congress on Pub. L. 92 367, 46 pp. (Secs. 816.47, 816.49(a)(b), 816.56) 122. U.S. Bureau of Mines, 1976a.

Surface Subsidence Control in Mining Regions.

Final Environmental Impact Statement FES 76 58. 90 pp. and Appendix A and B. (Sec. 816.55(a-b)) 123. U.S. Bureau of Mines. 1977b.

Research on the hydrology and water quality of watersheds subjected to surface mining.(Third semi-annual technical report prepared by U.S. Department of Agriculture, and Ohio Agriculture Research and Development Center, Wooster, Ohio, in cooperation with the U.S. Geological Survey,) U.S. Bureau of Mines Contract No. JO166055 Report, 68 pp. (Sec. 816.41(a d), 816.55) 124. U.S. Bureau of Mines. 1977c.

Study and analysis of surface subsidence over the mined Pittsburgh coalbed.

(Prepared by GAI Consultants, Inc., Monroeville, Pa.) U.S. Bureau of Mines Contract No. JO366047 Report. 145 pp. and appendix A. (Secs. 816.54, 816.55) 125. U.S. Bureau of Reclamation, 1973.

Design of Small Dams, A water resources technical publication.

2d ed. 816 pp. (Secs. 816.43(e), 816.47, 816.49(a)(b), 816.56) 126. U.S. Code: Navigation and Navigable Waters: 33 U.S.C. 1251 1376 (Federal Water Pollution Control Act Amendments of 1972). (Sections 816.42(b), 816.55(b)) 33 U.S.C. 1311 (301 of Federal Water Pollution Control Act Amendments of 1972). (Sections 816.42(b), 816.55(b)) {15147}127. U.S. Congress: H.R. Rept. 218, 95th Cong., 1st sess. 126 (1977). (Gen'l. Secs. 816.41 .57) 128. U.S. Council on Environmental Quality and U.S. Environmental Protection Agency. 1977. Energy and economic impacts of H.R. 13950 (Surface Mining Control and Reclamation Act of 1977). Prepared by ICF, Inc., Washington, D.C., on Contract No. EQ6ACO16). Final report. Volume 1: Chapters I-V (various pagings). Volume 2: Appendixes A H (various pagings). (Section 816.41(d)) 129. U.S. Department of Agriculture. 1973.

Restoring surface mined land: U.S. Department of Agriculture Miscellaneous Publication No. 1082, 14 p. (Sec. 816.41(a-d)) 130. U.S. Department of the Interior. 1967, Surface Mining and Our Environment. A special report to the nation.

96 pp. (Sec. 816.41(d), 816.52) 131. U.S. Department of the Interior, 1972.

Bibliography on legal and regulatory aspects of water pollution control and abatement.

(Prepared by Center of Competence for Eastern U.S. Water Law, University of Florida College of Law, Gainesville, Fla.) U.S. Department of the Interior, Office of Water Resources. Part I: Abstracts, 809 pp.; Part II: Subject Index, 735 pp. (Available from U.S. Department of Commerce, NTIS: Part I, PB 217 493; Part II, PB 217 494.) (Secs. 816.53(a-c), 816.54) 132. U.S. Department of Interior. 1975.

Acid mine water, a bibliography. U.S. Department of the Interior, Water Resources Information Center WRSIC 75 202. 564 pp. (Secs. 816.42, 816.46, 816.48, 816.50, 816.51, 816.52, 816.55, 816.56, 816.57) 133. U.S. Environmental Protection Agency. 1973b.

Processes, procedures, and methods to control pollution from mining activities.

(Prepared by Skelly and Loy, Harrisburg, Pa., and Penn Environmental Consultants, Inc., Pittsburgh, Pa.) U.S. Environmental Protection Agency Report EPA 430/9 73 011. 390 pp. (Available from U.S. Department of Commerce, NTIS PB 257 297. 390 pp.) (Secs. 816.42, 816.55) 134. U.S. Environmental Protection Agency. 1976a.

Development Document for Interim Final Effluent Limitation Guidelines and New Source Performance Standards for the Coal Mining Point Source Category.

U.S. Environmental Protection Agency Report, EPA 440/1 76/057, 288 pp. (Secs. 816.41, 816.42(b), 816.55(b)) 135. U.S. Environmental Protection Agency. 1976(b).

Erosion and sediment control_Surface mining in the Eastern U.S. v. 1, planning; v. 2, design; U.S. Environmental Protection Agency, Technology Transfer Seminar Publication EPA 625/3 76 006, v. 1, 102 pp; v. 2, 137 p. (Sec. 816.42, 816.45(a-g)) 136. U.S. Environmental Protection Agency. 1977a.

Coal Mining and Point Source Category Effluent Limitations Guidelines for Existing Sources.

(National Pollutant Discharge Elimination System (NPDES) 42FR21380 21390. April 26, 1977. (Sec. 816.42(b), 816.55(b)) 137. U.S. Environmental Protection Agency. 1977(c). EPA comments and analysis of final EIS on proposed 20-year plan of mining and reclamation, Westmoreland Resources Tract III, Crow Indian Ceded Area, Montana, transmitted July 26, 1977, from EPA Regional Administrator, Region VIII to Acting Director, U.S. Geological Survey. 21 pp. (Secs. 816.42(b), 816.50, 816.51, 816.55(b)) 138. U.S. Forest Service. 1972.Forestry research_toward a quality water supply: U.S. Department of Agriculture, Forest Service, Forestry Science Photo Story No. 10, 4 pp. (Northeastern Forest Experiment Station, Upper Darby, Pa.) (Secs. 816.45(a-g), 816.53(a-c), 816.54) 139. U.S. Forest Service. 1973a.

Forest Hydrology_Hydrologic effects of vegetation manipulation, pt. II; U.S. Department of Agriculture, Forest Service, Various pagings, (Secs. 816.41(d), 816.45(a-g)) 140. U.S. Forest Service. 1973b.

Soil resource inventory procedures (applicable to Rocky Mountain coal mine region); U.S. Department of Agriculture, Forest Service, Southwestern Region, Albuquerque, New Mexico. Various pagings, (Secs. 816.41(d), 816.45(a-g)) 141. U.S. Soil Conservation Service. 1960.

Rainfall-runoff tables for selected runoff curve numbers: U.S. Soil Conservation Service Technical Release No. 16, 89 pp. (Secs. 816.42(b), 816.46(b-d), 816.47, 816.49(a)(b), 816.56) 700 142. U.S. Soil Conservation Service. 1971a.

Diversion Practice Code 362, in Engineering practice standards, Pt. 1_Engineering conservation practices; U.S. Department of Agriculture, Soil Conservation Service, SCS National Engineering Handbook Section 2, 3 pp. (Secs. 816.46(b-u), 816.47, 816.49(a)(b), 816.56) 143. U.S. Soil Conservation Service. 1971b.

Engineering Standard for Debris Basin For Control of Sediment From Surface Mining Operations in Eastern Kentucky, U.S. Department of Agriculture, Soil Conservation Service. 10 pp. (Secs. 816.46(b-u), 816.47, 816.49(a)(b), 816.56) 144. U.S. Soil Conservation Service. 1976(a). "Earth embankments and foundations,'' Chapter 5 in Earth dams and reservoirs: U.S. Soil Conservation Service, Technical Release No. 60, p. 5 1 to 5 5. (Secs. 816.46(b-u), 816.47, 816.49(a)(b), 816.56) 145. U.S. Soil Conservation Service. 1977b.Preliminary guidance for estimating erosion on areas disturbed by surface mining activities in the Interior Western United States_interim final report: U.S. Environmental Protection Agency Report EPA_908/4 77 005, 26 pp. and 3 appendixes. (Sec. 816.45(a-g)) 146. U.S. Soil Conservation Service. 1977d.

Procedure for Computing Sheet and Rill Erosion on Project Areas.

U.S. Soil Conservation Service Tech. Release 51, 17 pp. (Secs. 816.45(a-g)) 147. U.S. Weather Bureau. 1961.

Rainfall Frequency Atlas of the United States, Department of Commerce, Technical Paper No. 40. 61 pp. (Secs. 816.42(b), 816.43(b), 816.44(b), 816.46(b-d), 816.49(a)(b)) 148. Van Voast, W.A. 1974.

Hydrologic effects of strip coal mining in southeastern Montana_Emphasis: One year of mining near Decker.

Montana Bureau of Mines and Ecology Bulletin 93. 23 pp. (Secs. 816.50, 816.51) 149. Van Voast, W.A. and Hedges, R.B. 1975.

Hydrologic aspects of existing and proposed strip coal mines near Decker, southeastern Montana.

Montana Bureau of Mines and Geology Bulletin 97. 31 pp. (Secs. 816.50, 816.51) 150. Walline, R.E. 1977.Summary of rationale_EPA Region VIII Policy on BPCTA, total suspended solids effluent limitations for the coal mining industry: Paper dated April 27, 1977, 2 pp. (Secs. 816.42(b), 816.55(b)) 151. Ward, A.D., Haan, C.T. and Barfield, B.J. 1977(a).T3Prediction of Sediment Basin Performance: (Presented at ASAE Winter meeting, Dec. 13 16, 1977. Chicago, Ill. American Society of Agricultural Engineers Technical Paper No. 77 2528). 36 pp. (Secs. 816.46(b-u), 816.47, 816.49(a)(b), 816.56) 152. Ward, A.D., et al.

1977(b).Simulation of the Sedimentology of Sediment Detention Basins.

University of Kentucky, Water Resources Research Institute, Report No. 103, 133 pp. (Secs. 816.46(b-u), 816.49(a)(b), 816.56) 153. Ward, A.D., et al.

1978.

The Design of Sediment Basin (Presented at 1978 ASAE Summer Meeting Logan, Utah). American Society of Agricultural Engineers, Technical Paper, 32 pp. (Secs. 816.46(b-u), 816.47, 816.49(a)(b), 816.56) 154. Warner, R.W. 1973. "Acid coal mine drainage effects on aquatic life,'' in Hutnik, R.J., and Davis, Grant, editors, Ecology and reclamation of devastated land, volume 1. Gordon and Breach, New York. pp. 227 236. (Secs. 816.48(a)(b), 816.50(a)(b), 816.51(b)(c), 816.52(b)) 155. Weber, W.G., Jr., and Wilson, Charles. 1976.

Evaluation of sediment control dams. (Prepared by Pennsylvania Department of Transportation for Federal Highway Administration. Report 72 21). U.S. Department of Commerce, NTIS Report PB 253 040. 27 pp. and appendix A. (Secs. 816.46(b-u), 816.47, 816.49(a)(b), 816.56) {15148}156. Weigle, W.K. 1965.

Designing coal-haul roads for good drainage.

U.S. Forest Service. 23 pp. (Secs. 816.44, 816.57) 157. West Virginia Department of Natural Resources. 1975.

Drainage handbook of surface mining.

West Virginia Department of Natural Resources. 75 pp. and appendixes I IV (Secs. 816.50(a)(b), 816.51(b)(c), 816.56) 158. Whaite, R.H., and Allen, A.S. 1975.

Pumped-slurry backfilling of inaccessible mine workings for subsidence control.

U.S. Bureau of Mines Information Circular 8667. 83 pp. (Secs. 816.50(a)(b), 816.51(b)(c), 816.56) 159. Wilber, C.G., 1969.

The biological aspects of water pollution. Charles C. Thomas, Publisher, Springfield, Ill. 296 pp. (Secs. 816.42(a) 816.47, 816.57(a)) 160. Williams, J.R. 1975.

Sediment-yield prediction with universal equation using runoff energy factor, in Present and prospective technology for predicting sediment yields and sources, at Sediment-Yield Workshop, USDA Sedimentation Laboratory, Oxford, Miss. U.S. Department of Agriculture Publication ARS S 40. pp. 229 252. (Sec. 816.45(a-g)) 161. Williams, J.R. 1977.

Sediment delivery ratios determined with sediment and runoff models, in Paris Symposium on Erosion and Solid Matter Transport in Inland, Water. Paris, France. Proceedings. (Sec. 816.45(a-g)) 162. Wischmeier, W.H. 1962.

Rainfall erosion potential.

Agricultural Engineering. Vol. 43, no. 4, pp. 212 215, 225. (Secs. 816.41(d), 816.45(a-g)) 163. Wischmeier, W.H. and Mannering, J.V. 1969.

Relation of soil properties to its erodibility. Soil Science Society of America. Proceedings. Vol. 33, no. 1, pp. 131 137. (Secs. 816.41(d), 816.45) 164. Young, R.L. 1970.Above Lake Needwood. Trends in Parks and Recreation. January/February 1970, pp. 17 20. (Secs. 816.47, 816.48(a)(b)) 700 SECTION 816.41 Hydrologic balance: General requirements.

Section 816.41 sets forth in general terms the hydrologic requirements for surface mining activities. In light of the testimony presented before Congress during deliberations over the Act, the requirements of the Act, and State regulations on the subject, details are provided which are believed to be sufficient to ensure that, on a national basis, all surface coal mining and reclamation operations are conducted in an environmentally acceptable manner. The process of surface mining involves a number of changes in land cover, drainage pattern, and nature of the overburden that may markedly alter the hydrology of an area. (See the Environmental Impact Statement accompanying these rules, Section III B, Water).

Past studies have documented changes in flooding, base flows, sedimentation, and water quality in streams draining mined watersheds (Curtis, 1972a, 13 pp; b, p. 2; 1973, p. 3; 1974, p. 2; Davis, 1967, pp. 426 428; Gilley and others, 1977, p. 23; Plass 1975, p. 18; Simpson, 1977, p. 8). In addition, adverse impacts can occur to the groundwater resource and in downstream stream flow and erosion characteristics by mining (Dyer, 1977, p. 13), although these latter changes are less easily documented and usually become a consideration only when large areas are mined. These various impacts result because interruptions in one or more components of the hydrologic cycle of an area often affect other components in the system (Gregory and Walling, 1973, p. 456). For example, the changes in water yield associated with removing vegetation to expose soil in surface activities can result in stream channel instability problems (Galbraith, 1973, p. 21). Other examples are discussed in the Environmental Impact Statement, Section III B, Water). Therefore, it is important that the hydrologic balance of an area to be mined be altered as little as possible as a result of surface mining.

The regulations are structured on the premise that the applicant for a permit will research and understand the hydrologic balance in the mine plan and adjacent areas prior to mining, as well as understand the potential impacts of mining on that balance, so that operations are planned and conducted to minimize disturbances to the hydrologic balance both onsite and offsite. Since the hydrologic balance may be restored only after long periods of time (Surface Mining Control and Reclamation Act, House Report No. 95 218, p. 113), it is necessary for the permittee to project long-term implications of the mining. The primary source of legal authority for this Section is Section 515(b)(10) of the Act.

1. Several commenters suggested that the language of Sections 816.41(a) and 817.41(a) be changed so that it would be necessary to plan for protecting the hydrologic balance on only the "affected area'' and not the "mine plan area.'' The Office recognizes that there was an error in the proposed rules since "mine plan area'' is the "affected area.'' Thus, the word "affected'' was replaced with "adjacent.'' The phrases "mine plan area'' and "adjacent areas'' must be retained. A plan of activities for a permit must include both the hydrologic balance of more than just the permit area, because sections 507, 508, 510 and 515 of the Act require protection of the hydrologic balance off the mine site.

2. Several commenters suggested that Sections 816.41(a) and 817.41(a) of the regulations be changed to copy the language of Section 515(b)(10) of the Act, which requires that disturbances to the hydrologic balance be minimized. This suggestion is rejected, because Congress intended that its general language be fleshed out with more specific and precise regulations (Sections 501(b) and 201(c) of the Act). Many of the terms used by Congress are not defined or explained and thus are too vague to be enforced effectively until given more precise meanings. The Office has the responsibility to determine what key terms like "minimize'' and "best technology currently available'' mean within the framework of technical knowledge and other applicable law.

3. Several commenters stated that, under State law, water appropriations can lawfully disturb the offsite hydrologic balance and Sections 816.41(a) and 817.41(a) should be clarified accordingly. OSM position on this is that Federal laws and regulations is controlling in the unlikely event of a conflict and the additional language is not necessary.

4. One commenter suggested changing Sections 816.41(a) and 817.41(a) so that mining on a watershed would be phased to minimize the amount of land disturbed at any one time, in accord with the probable cumulative impacts on all anticipated mining in the general area. See 30 CFR Section 786.19(c). The commenter stated that the greatest disturbance of the hydrologic balance occurs during active mining operations; consequently, minimization of disturbance of the hydrologic system can only be accomplished if mining operations in a watershed are phased to minimize the amount of land under active mining at any given time. The alternative of changing Sections 816.41(a) and 817.41(a) to include this statement was considered and rejected since no significant advantage would be realized from this change. OSM feels that the present wording allows for phased mining on a watershed. The regulation which provides for this control is Section 786.19(c) which places the responsibility on the regulatory authority for assessment of probable cumulative impacts of all anticipated mining in the general area upon the hydrology of the area.

5. Three commenters felt that Sections 816.41(a) and 817.41(a) should be changed to delete "in the depth . . . surface drainage channels' because constraints on individual elements of the hydrologic system are not necessary to preserve the overall hydrologic balance. The Office rejected this proposal, because the regulations do not require that the exact ground water levels be maintained, but rather that changes brought about by mining are required to minimize the disturbance to the prevailing hydrologic balance (Section 515(b)(10) of the Act). {15149}6. One commenter suggested that Section 816.41(c) be deleted since it is not necessary in order to require compliance with other applicable laws and regulations. This suggestion was rejected since this Section provides guidance of the general requirements that the permittee must meet, and further OSM is required to ensure protection of the hydrologic balance as may be required by these other laws.

7. Several commenters questioned the provisions of Sections 816.41(d). The commenters were divided on their position; some felt that this Section should be expanded to cover more details on seeding and mulching, while others felt paragraphs (d)(1) or (d)(2) should be shortened or be completely deleted from the regulations. One alternative which was considered was to expand this Section to be more specific and more inclusive as far as the stated practices to control and minimize pollution. This alternative was rejected because Section 816.41 discusses alternative practices for protecting the hydrologic balance and is not exclusive. The details and specifics of the topics mentioned here are adequately addressed in the Sections following 816.41, and in particular Sections 816.111 816.117. Another alternative considered was to entirely delete this Section of the regulations. Commenters felt there was no need for this Section since it was alleged to lack specification, consisting of only practices which may be used to achieve the requirement of the Act. However, since this is a general Section which is designed to provide both rationale and guidance to achieve the required performance standards, it was decided to reject this alternative and to retain the language of the proposed regulations. This discussion also applies to Section 817.41(d).

8. One commenter noted that Section 816.41(d)(1) requires emphasis of practices that prevent or minimize water pollution and changes in flow, in preference to the use of the water treatment facilities. The commenter felt that this guideline effectively precludes the use of water treatment facilities even when they would merit consideration for economical reasons. This regulation is necessary to comply with Section 15(b)(10) of the Act. The office has not changed this provision, because prevention or minimization of the source of pollutants precludes the necessity of long-term maintenance of water treatment facilities and is, therefore, a more cost-effective technique.

700 9. Several commenters suggested that the language of Sections 816.41(d)(3) and 817.41(d)(3) be changed to clarify the intent of this regulation, especially with regard to "practices'' and "for as long as treatment is required.'' Alternative language was considered and editorial changes were made to clarify that "these practices'' refers to the practices listed in Paragraph (d)(2). The length of the period for which an operator is responsible for treatment is clarified in Section 816.42.

SECTION 816.42 Hydrologic balance: Water quality standards and effluent limitations.

A.

Introduction 1. Authority for this Section is Sections 102, 201, 501, 503, 504, 505, 506, 507, 509, 510, 515, 517, 519, 522, 701, 702, and 717 of the Act. 2. This Section specifies water pollution control collection and treatment requirements and contains minimum water quality standards and effluent limitations. A general discussion of the basis and purpose of this Section was at 43 Fed. Feg. 41744 41746 (Sept. 18, 1978). To provide clarity to the reader, the Section was restructured from the proposed version to include discrete alphanumeric paragraphs.

3. Paragraph (a) of this Section establishes several important standards for the protection of the hydrologic balance from surface mining activities. Under 816.42(a)(1), all drainage from the disturbed surface areas is to be passed through sedimentation ponds prior to discharge of the drainage either to a stream or out of the permit area. Disturbed area in this context is as defined in Section 701.5, with the modifications provided by section 816.42(a)(4). That modification exempts certain areas from 816.42 which are to be regulated with respect to sedimentation and acid or toxic mine drainage by other provisions of Part 816. See, e.g. Sections 816.43, 816.44, 816.45, 816.47, 816.48, 816.150 et seq.

4. Of course, in addition to sedimentation, persons must use treatment facilities to reduce acid or other toxic contents of drainage from the disturbed area, to meet the effluent limitations of Section 816.42(a)(7) for pH, iron, and manganese, and any other pollutant parameters limited by applicable State or Federal law. See Sections 816.41(c), d(3); 816.42(a)(7).

5. Sedimentation ponds utilized to satisfy the requirements of 816.42 (a)(1) (2), are to be designed, constructed, operated, maintained, and removed according to the requirements of Section 816.46. They are to be constructed before the commencement of mining operations. See Section 816.42(a)(5). Use of sediment ponds, in conjunction with other control measures, will implement the Act's requirements for use of the Best Technology Currently Available for limiting sedimentation (Section 515(b)(10)(B)) and protection of fish and wildlife (Section 515(b)(24)) of the Act, and to minimize disturbance of the hydrologic balance during and after mining (Section 515(b)(10)). The preamble to Section 816.46 contains a detailed explanation of the Office's determination regarding Best Technology Currently Available with respect to sedimentation.

For acid and other toxic mine drainage, treatment facilities are to be required during and after mining operations as necessary technology under Section 515(b)(10)(A) of the Act and Best Available Control Technology under Section 515 (b)(24) of the Act. (Barthauer, 1971, 10 pp.; Calhoun, 1968, pp. 78 40; Colgate et al., pp. 46, 47; Grim and Hill, 1974; pp. 198 200, 269 273; Kosowski; 1973, 83 pp.; Maneval, 1975, pp. 210 219; Martin, 1974, pp. 26 37; Robins et al. (USEPA), 1977, pp. 3 4; USEPA 1973(b), pp. 87 105, 215 359; USEPA, 1976 (b), Vol. 1, pp. 13 84, Vol. 2 pp. 81 88, USEPA 1977a (42 F.R.

21380 21390)).

6. Sediment ponds and other treatment facilities are to be utilized until regulatory authority approval for their removal is granted under Section 816.42(a)(2), which principally implements Section 515(b)(10) and 519(c)(2) (3) of the Act. Exemption from the requirements of Section 816.42(a)(1) (2) only may be authorized for drainage from "small'' areas under Section 816.42(a)(3), to avoid causing more disturbance of land to construct sediment ponds than will result from the small disturbed drainage area itself. However, even this exemption can only be authorized if the drainage will still meet applicable effluent limitations and water quality standards for receiving waters. 7. Under Section 816.42(a)(b), both drainage from disturbed areas which is mixed with drainage from other areas together must achieve the effluent limitation of Section 816.42(a)(7). This is specified to avoid ambiguous interpretation, as may have resulted with the proposed version of Section 816.42(a). That Section provided that "discharges of water from areas disturbed by surface mining activities shall be made in compliance with all Federal and State laws and regulations . . .''. Proposed Section 816.42(a) also provided that all surface drainage from the disturbed area, was to be passed through a sedimentation pond or a series of sedimentation ponds before leaving the permit area.

700 {15150}The Office has experienced interpretative questions in the field under the interim program regarding responsibility of operators for discharges of drainage from sedimentation ponds which mix drainage from areas disturbed by current surface coal mining and reclamation operations with drainage from other areas undisturbed by those operations, such as previously mined land. The Office interprets the relevant provision of its interim regulations, 30 CFR 715.17(a), to impose on the operator, in such circumstances, the obligation to achieve the effluent limitations for all of the mixed drainage, not just a portion of it.

Section 715.17(a) and proposed Section 816.42(a) require that "discharges from areas disturbed by surface coal mining and reclamation operations must meet all applicable Federal and State laws and regulations . . .'' (emphasis added). Under Section 301 and 401 of the Clean Water Act, as amended (33 U.S.C. 1311, 1341(b)), mixed drainage from current coal mining operations and other areas discharged from a sediment pond is deemed to be a "point source'' and, therefore, required to meet the relevant EPA effluent limitations, including application of such limitations in the case of commingling drainage from "active'' and "inactive'' areas as defined by EPA (40 CFR 434.32(c) 1978. 30 CFR Section 717.15(a) and proposed Section 816.42(a) thus implied) that mixed discharges must not be violative of ". . . applicable Federal . . . laws and regulations . . .'' In addition, Sections 715.17(a) and proposed 816.42(a) required that all discharges from areas disturbed by surface coal mining and reclamation operations must meet, at a minimum, certain specified quantitative effluent limitations for total iron, total manganese, total suspended solids, and pH. The Office interprets these provisions to cover all discharged drainage that is mixed with drainage from the disturbed area. Without this interpretation, severe damage to the hydrologic balance will result from the unregulated discharges of polluted water from disturbed areas mixed with water from other sources. Moreover, field investigative and monitoring techniques are not generally available to allow for necessary precision in separating out, at the entrances and exits of sedimentation ponds, the pollutant loads of individual waters. The impracticality in the field of treating or testing a portion of the drainage discharged from the disturbed area as greater portions of the permit area are mined, therefore, requires the interpretation that all mixed drainage meet effluent limitations, in order to assure that all discharges from the disturbed areas meet the effluent limitations before leaving the permit area. 1 G1 G2 1 Both Pennsylvania and Kentucky State laws, preexisting the Act, also required the operator to meet effluent limitations with respect to all parts of active and inactive commingled discharges (Kentucky_ 4 Ky. Admin. Reg. 1:055_Section 2 (July 2, 1975); Pennsylvania_ See Commonwealth vs.

Barnes and Tucker Co., 455 Pa. 392, 319 A2d. 871 (1974), aff'd. after remand, 472 PA 115, 317 A2d. 461 (1977); Commonwealth vs.

Harmar Coal Co., 452. PA. 77, 306 A2d. 308 (1973).

Clarification of Section 816.42(a)(6) will ensure that, where the sedimentation pond or series of ponds is used in a manner as to result in the mixing of drainage from disturbed and undisturbed areas, all of the mixed drainage will have to meet the effluent limitations at the point of the last discharge from the permit area. Except to the extent that discharges from undisturbed areas are mixed with discharges from disturbed areas, discharges from undisturbed areas are not subject to the effluent limitations of 816.42(a). Thus, discharges from undisturbed areas need not meet effluent limitations where the permittee has designed diversions or other procedures to avoid the mixing of discharges from disturbed and undisturbed areas.

8. Section 816.42(a)(7) specifies the standards by which the quality of discharges of drainage from the disturbed area are to be measured. First, discharges are required to meet all applicable requirements of Federal and State law. Second, at a minimum, certain specific quantitative effluent limitations are to be achieved, according to the table at the end of 816.42(a)(7) and the interpretive material in footnotes to this table. USEPA regulations implementing the Clean Water Act's Section 402 NPDES permit system (see 40 CFR 434) were the base for development of the effluent limitations at Section 816.42(a)(7). However, the Office's limitations are based on the authority of the Surface Mining Control and Reclamation Act and have been modified from USEPA regulations to fully implement the provisions of the Act.

9. Section 816.42(b) is promulgated to set forth the circumstances under which discharges subject to 816.42(a) may be allowed to deviate from the effluent limitation requirements of Section 816.42(a)(7). The exemption provided for is to provide equitable relief from the effluent limitations when the discharge is subject to an extraordinary precipitation event, if the drainage involved, in fact, results from such an event.

10. The Office has coordinated these regulations with the EPA and has received that Agency's written concurrence to these regulations as they relate to EPA's water quality standards. Both agencies will strive to minimize duplicative efforts in standard setting, permit issuance, monitoring requirements, inspections, and enforcement.

700 Regarding coordination and minimization of permitting, the OSM regulations require that regulatory programs permitting systems under the Surface Mining Act be closely coordinated with NPDES permit requirements under the Clean Water Act.See 30 CFR 770.12, 778.19/783.19, 786.11(b)(c)(4); 786.12. Those procedures should serve to insure that unnecessary duplication is prevented on a case-by-case basis. Discharger monitoring requirements have been coordinated as discussed in the preamble to Sections 816.52 and 817.52. Standard setting has and will continue to be carefully coordinated with EPA.

B.

Analysis of Comments and Alternatives 1. Many commenters were concerned with the quantitative effluent limitations proposed by OSM at the table in 816.42(a)(2). They recommended that these be deleted so that discharges from disturbed areas would comply only with all "applicable'' Federal and State laws and regulations, or that responsibility for specifying effluent limitations be left entirely to the Environmental Protection Agency (EPA) under EPA's Effluent Guidelines and Standards for the Coal Mining Point-Source Category under the National Pollution Discharge Elimination System (NPDES) Permit Program (40 CFR Part 434). These recommendations were carefully analyzed and rejected, for several reasons.

2. (a) Under Sections 301, 304, and 401 of the Clean Water Act, coal mining operations must obtain NPDES permits and comply with EPA's effluent limitation regulations (40 CFR Part 434) for point-source discharges of pollutants to surface water of the "United States.'' Those regulations, however, apply only during the active phase of mining operations and do not extend to the reclamation phase of mining. Further, neither the NPDES permit system nor EPA's regulations cover "nonpoint'' source discharges to surface water, any discharges to ground water, or discharges to surface waters that do not meet the agency's definition of "waters of the United States.'' (b) The NPDES system also assumes the existence of a point source discharge before applicable effluent limitations attach to the discharge. This system would leave entirely unregulated any non -point discharges, of which surface and underground mining activities have many, largely resulting from the storm water runoff over surface areas and ground waters exciting underground mine workings. Under Sections 102, 506, 510, 515, 516, and 517 of the Act, however, all water discharged as a result of coal mining and reclamation operations which could materially damage the hydrologic system are to be regulated through a permit system and regulations, which will require collection of non-point runoff and treatment to limit discharges of pollutants to ground or surface waters. H.R. Rep. No. 95-218, 95th Congress 1st Session at 114; USEPA (1976 b), vol. 1 at 19; USEPA (1973(b)) at 156 157. Further, under Sections 515(b)(10) and 516(b)(9) of the Act coal mining will be regulated through both the mining and reclamation phases. Therefore, the requirements of 816.42 included the effluent limitations already applicable to coal mining point sources and also provisions to fill gaps not now covered under the present national EPA regulatory program. ( See In re Surface Mining Regulation Litigation, 456 F. Supp. 1301, 1313 1315 (D.C.D.C., 1978)).

{15151}3. It is noted that non -point source discharges to surface waters and some discharges to groundwater could be regulated by USEPA. Section 208 of the Clean Water Act provides for the development of programs controlling nonpoint source discharges from mining. Section 304(e) of the Clean Water Act allows EPA to control runoff to surface waters, if the runoff contains toxic or hazardous pollutants and is ancillary to operation of an industrial establishment which itself causes "point source'' discharges. Section 402(b)(1)(D) of the Clean Water Act authorized NPDES permits provisions which control the disposal of pollutants into "wells.'' Sections 1421 1424 of the Safe Drinking Water Act (SWDA) authorize EPA and States approved under Section 1422(a)_SWDA to issue regulations and permits to control underground injections (subsurface emplacement of fluids by well injections). Section 1424, SWDA establishes a mechanism for sole source aquifer determination and protection through withholding of Federal financial assistance. Subtitle D of the Resource Conservation and Recovery Act may, upon promulgation of the regulations, include controls over environmental contamination from coal waste disposal including protection against both surface water and ground water pollution.

However, EPA has not implemented, by regulations and State plans, any of these statutory provisions as to coal mining, nor is it expected that this will occur on a national basis in the near future. Moreover, EPA national policy is to utilize programs, developed under Titles IV V of the Act (SMCRA) to satisfy the Section 208, Clean Water Act's State program plan requirements with respect to coal mining. Thus, the effluent limitations requirements of 816.42 will be used to satisfy 208 requirements, by inclusion of Title V SMCRA's State or Federal programs as 208 plans by USEPA.

700 4. A number of commenters objected to the application of the proposed effluent limitations to all surface drainage from the "disturbed areas'' which is defined to include areas that have been graded, seeded, or planted. These objections resulted principally from the extension of effluent limitations ot surface drainage from areas disturbed by mining after final backfilling and grading.

In contrast, EPA effluent limitations for the Coal Mining Point Source Category under the NPDES permit system (40 CFR Part 434) apply only to active mining areas. As defined in EPA's regulations (42 FR 21383), "active mining areas'' refers to "a place where work or other activity related to the extraction, removal, or recovery of coal is being conducted except, with respect to surface mines, any area of land on or in which grading has been completed to return the earth to desired contour and reclamation work has begun.'' Commenters asserted that no basis exists for extension of effluent limitations to discharges from mining operations in a "non-active'' (or "reclamation'') phase and that such an extension was not necessary to ensure protection of the hydrologic balance under the Surface Mining Act.

(a) There is no substantial basis in the Surface Mining Act or the record upon which the office can distinguish between "Active'' and "reclamation'' phases of mining and reclamation operations for the purpose of excluding the application of effluent limitations or of justifying less stringent effluent limitations.

Under Section 515(b) of the Act: "(b) General performance standards shall be applicable to all surface coal mining and reclamation operations and shall require the operation as a minimum to . . . (10) minimize the disturbances to the prevailing hydrologic balance at the mine site and in associated offsite areas and to the quality and quantity of water in surface and ground water systems both during and after mining and after surface coal mining operations and during reclamation . . .'' (emphasis added).

Similar protection is afforded by Section 516(b)(9) of the Act with respect to underground mining. In addition, Section 519(c)(2) of the Act provides that "no part of the (performance) bond or deposit shall be released . . .

so long as the lands to which the release would be applicable are contributing suspended solids to streamflow or runoff outside the permit area in excess of the requirements set by Section 515(b)(10) . . . .'' of the Act. These sections clearly require runoff from the permit area to meet necessary requirements to protect the hydrologic balance throughout mining and reclamation operations. The Act does not, therefore, relieve this responsibility for any portion of the permit area or restrict the requirement to only "active mining areas.'' (b) A number of commenters recommended that further data collection and analyses were necessary before the subject effluent limitations, could appropriately be applied to discharges from areas undergoing "reclamation.'' Once commenter recommended that while additional studies were being undertaken, discharges from disturbed areas be required only to comply with pre-determined ambient water quality levels for receiving streams during the reclamation period.

OSM believes that the control technology required to meet effluent limitations for discharges from the "active mine area'' is very similar or the same as that necessary to meet effluent limitations for discharges from the "area under reclamation.'' See preamble to Section 816.46. In addition, compliance with the reclamation standards specified in the Act and regulations (816.100 816.117) should minimize problems in meeting the effluent limitations of Section 816.42 during the "reclamation'' period, by eliminating the creation of sediment, acid, and iron that need to be treated to achieve the limitations.

Following the return to approximate original contour by backfilling and grading, it is expected that the sediment yield from disturbed areas will actually be reduced from that which occurred during "active'' mining operations. Backfilling and grading to achieve appropriate premining slopes or lesser slopes (so as to eliminate highwalls and spoil piles) will result in general reduction in slopes in the vast majority of cases and, as long as slope lengths are controlled, reduce erosion and sediment yields (Grim and Hill, 1974, at p. 151 and p. 165; USEPA, 1976b v. 1, at 38). As indicated in Dollhopf, D.J., Jensen, I.B., and Holder, R.L. (1977 at p. v and p. 55), topsoiled mine areas have been found to have less runoff than similar nontopsoiled mine areas and also to undergo less gully erosion. Establishment of an effective and permanent vegetation cover will provide stabilization of the soil surface with respect to erosion.

It is also expected that, following "active'' mining, concentrations of acid, iron, and manganese in mine drainage will be reduced under the regulations. This results from backfilling, compacting, grading, and covering bare spoils, pits, coal and acid- and toxic-forming materials which are susceptible to acid generation and the formation of other pollutants. (Grim and Hill, 1974 at p. 154 and p. 98 200; Hill and Bates, 1978, at p. 10 13). The regulations also require that if necessary, such materials shall be treated to neutralize toxicity in order to prevent water pollution.

{15152}Moreover, various State regulatory agencies have extended similar effluent limitations to discharges from lands that have been regraded, seeded, and planted, but which have not been relieved from bond obligations or other permit requirements. The termination of such requirements is normally tied to release of further permittee responsibility for mining and reclamation and this is often at the time of final bond release. In a survey of eleven coal-producing States (see Office memorandum to files, November 10, 1977), the Office found that ten States specifically extend effluent limitations on water quality criteria to all phases of coal mining and reclamation operations. These States included Alabama, Colorado, Illinois, Maryland, Montana, North Dakota, Ohio, Tennessee, West Virginia, and Wyoming.

2 I28 G22 The only surveyed State which did not indicate a clear intention to extend effluent limitations to the reclamation phase was New Mexico; in this case, EPA issues discharge permits for discharges from coal mines and the "extension issue'' has never been addressed by the State. In addition, similar effluent limitation requirements for all phases of mining were directly imposed upon the industry under several States' laws as noted below, prior to and at the time of passage of the Act: I11(a) Arkansas _Section 7(f), Open Cut Land Reclamation Act of 1977; (b) Kentucky _402 Ky. Admin. Reg. 1:055_Section 2 (July 2, 1975). pH: 6 9; iron: 7mg/L.; no net acidity; turbidity limits) (c) Pennsylvania _Section 315 of Pennsylvania Clean Stream Law, 35 Pa. Stat. Ann.

Section 691.315 (1977); 25 Pa. Code Sections 95:2(a), (c); 99:33 (acid, pH, iron, total suspended solids limits); See Commonwealth vs.Barnes and Tucker Co., 455 Pa. 392, 319 A2d 871 (1974), affd. aft. remand, 472 Pa. 115, 371 A2d 461 (1977) (treatment required for inactive underground mine discharges); Harmar Coal Co.

v. DER, _Pa. Commonwealth_, 384 A2d 289 (1978) (surface mining); (d) Texas _Section 251(h)(2), Rules of Texas Surface Mining and Reclamation Commission (Feb. 23, 1976) (suspended solids); (e) Virginia _Section 907, Virginia Surface Coal Mining Reclamation Regulations (1977), (pH: 6 9); (f) West Virginia _Surface Mining Reclamation Regulations_Ch. 206, Series V. Section 7B.02; (pH, iron, turbidity).

As was discerned from the survey and cited State laws, application of effluent limitations to all discharges from "disturbed areas,'' until such time as the requirements for achieving successful reclamation are met, is common practice supporting Section 816.42(a).

700 5. Several commenters asserted that sedimentation ponds may not be necessary to meet the effluent limitations of this section and to maintain water quality standards for downstream receiving waters, suggesting then there is no responsibility of the operator to show that the effluent limitations and water quality standards could be met and maintained. Furthermore, commenters argued that, if these effluent limitations could be met, then all operators should be extended the opportunity to meet this exemption. Related to the requests for elimination of the sediment pond requirements of Section 816.42(a)(1) were comments suggesting that the requirement be modified to expressly allow for use of "appropriate'' sediment control facilities, rather than ponds.

Recommendations for exemptions from the requirement that all drainage from the disturbed area be passed through a sedimentation pond or a series of sedimentation ponds before leaving the permit area, were considered by the Office and rejected. An exemption was maintained for cases where the disturbed drainage area within the total disturbed area is small (816.42(a)(3)(A)).

The requirement that all drainage from disturbed areas should be passed through sedimentation ponds, with very limited exceptions, was retained, because comments did not establish a basis to modify the office's determination that sedimentation ponds represent an essential element of the "best technology currently available'' to prevent, to the extent possible, additional contributions of suspended solids to streamflow or runoff outside the permit area, which is required by Section 515(b)(10)(B)(i) of the Act, and control acid or other toxic drainage under Section 515(b)(10)(A) of the Act. In general, use of sediment ponds is one of the facets of best available control technology under Sections 515(b)(10)(B)(i) and 515(b)(24) of the Act. (See H. Rpt. No. 95 218, 95th Congress, 1st Sess. at 114 115 (1977); and the preamble to Section 816.46.) Treatment ponds for treatment of acid and other toxic mine drainage, including chemical treatment and settling, are required under Sections 515(b)(10)(A) and 515(b)(24) of the Act. Such facilities are a necessary element of effective acid and toxic mine drainage treatment. (USEPA 1976a at 97 99, 169 170, 245, 248; Hill, 1976 at 1 2.) I11Moreover, commenters submitted no data whatsoever, to show that the effluent limitation of 816.42(a)(7) could be met without the use of sediment ponds. To the contrary, available data shows that untreated sediment discharges will ordinarily far exceed the effluent limits.

See e.g., Hill, 1976, at 7.

In response to comments, OSM did consider modifying the language allowing an exemption from the general requirement for sedimentation ponds when the disturbed drainage area to be exempted is "small'', and it can be demonstrated that ponds and treatment facilities are not necessary to meet effluent limitations or applicable State and Federal water quality requirements for downstream receiving waters. The modification was to specifically provide an exemption where the disturbed area is small relative to the size of the ponds which would have to be constructed to comply with Section 816.46.

The Office considers this modification to the proposed exemption to be unnecessary, because the language of the more general exemption provides greater latitude for a determination of what is "small'' and also meets the intent of the Office to recognize that, on isolated corners of operations, the building of sedimentation ponds may not be necessary to meet effluent limitations or water quality requirements and may create more deleterious effects to the local hydrologic system than the mining disturbance itself. It should be noted that, in such cases, other sediment control measures, as discussed in Sections 816.41 and 816.45 are required.

Some commenters expressed the concern that the small area exemption will be abused to the extent of becoming the rule. The Office is aware that this provision, like many others, is possibly subject to abuse and will attempt to review exemptions to determine, if modifications in the exemption language are necessary. Further, an added measure of control over the use of this exemption is provided by requiring a demonstration by the operator that effluent limitations and water quality requirements will be complied with without sedimentation ponds or treatment facilities.

6. A number of commenters expressed concern as to the criteria of the proposed rule for allowing removal of sedimentation ponds and other treatment facilities at the conclusion of reclamation. The concerns did not focus on the proposed requirement that the revegetation criteria of Sections 816.111 816.117 be met prior to removal, but rather on the water quality requirements that were proposed as an additional criterion for authorizing removal of treatment plants and release of bonds. As proposed, Section 816.42(a) required that the discharges meet "the ambient surface water quality requirements of Section 816.52.'' The reference to Section 816.52 lead to confusion, because it did not specifically contain standards for ambient surface water quality, but rather addressed monitoring.

{15153}Some commenters assumed that the requirements of Section 816.52 called for compliance with the effluent limitations of 816.42(a) as a criterion for sedimentation pond removal, arguing that in some cases, drainage from properly reclaimed areas may exceed the proposed effluent limitations.

700 Due to the interpretative problems inherent in the proposed rules, the Office considered three alternative criteria to serve as a basis for authorizing removal of sedimentation ponds and treatment facilities and consequent bond release at the conclusion of reclamation activities.

The first alternative, which would have required compliance of discharges only with "ambient water quality conditions,'' was rejected, because OSM believed it to be illegal under SMCRA and the Clean Water Act. Ambient water quality may be poorer than natural conditions due to pollution from human action and therefore, may be in excess of the water quality standards for streams set by EPA and the States under Sections 302 and 303 of the Clean Water Act (33 U.S.C. Sections 1302, 1313). See also, 40 CFR 130 131. By passage of SMCRA and the Clean Water Act, Congress intended to enhance the achievement of water quality standards, not just maintain unacceptably polluted ambient, conditions.

A second alternative considered would have allowed for removal of sedimentation ponds, and other treatment facilities, when untreated drainage from disturbed areas met the effluent limitations prescribed in the table in Section 816.42(a), at the conclusion of reclamation. This alternative was rejected, in recognition of the fact that in many areas it would be impossible, because natural conditions of unmined land often yield surface water discharges with sediment in excess of the effluent limitations of 816.42(a). The SMCRA does not require perpetual treatment of drainage from mined, but reclaimed land to achieve water quality superior to standards established under the laws for effluent limits. Therefore, the Office has adopted a third alternative which allows removal when untreated drainage from the disturbed and reclaimed area meets applicable State and Federal water quality standard requirements for receiving streams. This will necessitate a showing by the operator, based on monitoring data collected in the stream receiving discharges from the operative treatment facilities and of the discharges, that reveals receiving streams quality standards will not be violated upon removal of the sedimentation ponds and other treatment facilities.

In adopting this alternative, the Office recognizes that there may be some situations where the State water quality standards are quite stringent. To the extent that this exists the Clean Water Act and Sections 120, 151(b)(10), and 702 of SMCRA require compliance with those standards. Where there are no numerical stream water quality standards for the receiving waters of a particular operation, the Office will apply a policy of judging bond release applications for ponds according to the first alternatice discussed above, with appropriate modifications. Thus, in those situations, the permittee will be required to demonstrate that untreated drainage from a disturbed and reclaimed area does not cause an increase in levels of suspended solids, net acidity, total iron or other relevant pollutants above the ambient, pre-mining levels of the receiving stream. However, the pre-mining level is to be determined by excluding unusual, aberrational measurements of pollutants in the stream.

7. A number of commenters suggested an alternative to the effluent limitations proposed in Section 816.42(a). Specifically, commenters recommended that effluent limitations for total suspended solids or pH be derived on a site specific basis so as not to exceed determined baseline water quality levels of receiving surface waters. As support, these commenters cited examples of cases where existing background surface runoff water quality conditions exceed the proposed, effluent limitations for total suspended solids and pH. In addition, commenters noted potential problems of increased erosion which may result from the discharge of water with low (relative to ambient) total suspended solids concentrations to surface waters. Commenters also noted increased treatment costs in order to comply with the effluent limitations. Upon consideration, the Office has decided not to adopt this alternative.

First, EPA effluent limitations regulations require that discharges from coal mining operations be limited on a uniform national basis to not greater than 70 miligrams per liter daily maximum and 35 miligrams per liter daily average for total suspended solids and to an allowable pH range of between 6.0 to 9.0. Under the Act, the office must adopt regulations at least as stringent as those promulgated by EPA. Therefore, OSM, does not believe it has legal authority to adopt the alternative proposed by the commenters. Second, Section 515(b)(10) of the Act requires that discharges of suspended solids from areas disturbed by mining operations be limited by the use of the "best technology currently available.'' Section 515(b)(24) of the Act requires similar technology to protect fish and wildlife. The effluent limitations for total suspended solids and pH under the regulations are achieved by use of the "best technology currently available,'' for controlling those parameters as is explained in greater detail in above and in the preamble to Section 816.46. Establishing effluent limitations merely upon the basis of the quantities of pH or sediment in receiving waters would not represent the use of the "best technology currently available.'' I11Closely related to these comments were others suggesting that the Act limits OSM's authority to regulate suspended solids to only those amounts of solids directly resulting from mining operations; that is, OSM may only require achievement of suspended solids effluent limits at the point of discharge which allow a credit for any amounts of suspended solids that were in the water when it entered the "distrubed area'' as defined by 816.42(a). The Office rejected this argument.

Unlike many industries, such as iron and steel manufacturing and fossil-fuel electric power production coal mining operations do not involved processes whereby water is introduced at discrete and, therefore, easily measurable points where "background'' conditions could be established. In contrast, surface mining activities involve the movement of overland surface and shallow groundwater (e.g., nonpoint source) flows into and over disturbed areas. No single, discrete points exist for establishing, on a routine basis, sediment or pH loads at "background'' levels. (See., e.g., USEPA, 1976(b,) Vols 1 2; USEPA, 1976(a)). In underground mining, water enters the workings by percolation over large areas down from surface areas through strata overlying the workings. (USEPA, 1976(c)). Again, no discrete points exist to routinely sample for establishing "background'' levels.

In addition to the impracticality of establishing "background'' levels of sediment entering disturbed areas, the Act nowhere requires such a result.

700 Section 515(b)(10)(B) of the act requires use of best available control technology to prevent ". . .

additional contributions of suspended solids to stream flow or runoff outside the permit area.'' The Office interprets this language of the act to require that operations regulated by the act utilize best available control technology to prevent increases in sediment loads in streams or other surface waters below the point of discharge from the operations.

{15154}The legislative history indicates that Congress understood this to be the preferred interpretation, because Congress specifically rejected language in Section 515(b)(10)(B) of the Act that would have tied reduction of suspended solids to "natural levels.'' Such a provision in the 1977 Senate bill (S. Rept. No. 95 128, 95th Congress, 1st Sess. at 25 (1977)) was eliminated in the Conference Committee. Further, the House Committee, whose bill become this portion of the Act, specifically recognized that use of best available control technology could result in discharges at levels better than receiving streams. See H.R. Rept. No. 95 128, 95th Congress, 1st Sess. at 115 (1977).

OSM realizes that potential does exist for increased instream erosion resulting from discharges with low suspended solids concentrations. However, the Office believes that the effective utilization of discharge structures, as specificed by section 816.46 816.47, should reduce the erosion potential to an acceptable level (USEPA, 1976(b), Vol. 1 at 35 36; Vol. 2 at 9 23), and, second, that the possible harm from erosion is outweighed, on a national basis, by the reduction in discharges of large amounts of solids and acid that otherwise pollute receiving streams, as it explained in greater detail at the Final EIS, BIII 52/53.

8. The table of Section 816.42 which includes applicable effluent limitations has been revised to incorporate recent revisions in the EPA Effluent Limitations for the Coal Mining Point Source Category. See 44 FR 2586 (Jan. 12, 1979). Footnote 6 has been added to the table to provide for effluent limitations for iron (total) of 6.0 miligrams per liter, maximum allowable) and 3.0 miligrams per liter (average of daily values for 30 consecutive discharge days). The stricter effluent limitations applies to discharges from new sources, as defined under 40 CFR section 434.11(i).

9. Several commenters questioned the more stringent restrictions in the proposed rules on total suspended solids concentrations for discharges from mining operations in the eight Western States prescribed by footnote 4 to the table of effluent limitations in proposed Section 816.42(a). The majority of commenters expressed concern that the more stringent effluent limitations to be imposed in these States were not developed from sufficiently sound technical reasoning and were not compatible with naturally high total suspended solids concentrations of surface waters in the West. (U.S. Geological Surface Water Resource Data for North Dakota, Water Year 1976; U.S. Geological Survey Water Data Report ND 76 1, pp. 419 420.) Opinion was expressed that, based on the proposed effluent limitations, Western operations would unjustly be required to discharge insignificant quantitites of good quality water into large quantities of very poor quality receiving waters. Another commenter stated that although the Western arid climate means less precipitation and less potential runoff, vegetation is oftentimes sparse and soil erodibility is potentially high. Therefore, sediment concentration higher than normal in runoff is highly probable. In general, commenters noted that a more valid set of effluent limitations would be limitations based on background (or natural) water quality levels associated with the mining area. The Office declined these suggestions.

EPA's Effluent Limitations for the Coal Mining Point Source Category (40 CFR 434) establish a separate subpart for coal mines in Colorado, Montana, North Dakota, South Dakota, Utah, and Wyoming. In these States, total suspended solids limitations are to be determined by the NPDES permit-issuing authority. This special Subpart was established based on data gathered from NPDES permit reports and sampling and analyses at certain Western coal mines. These data indicate that many of these mines have been able to discharge pollutants (specifically total suspended solids) in lower concentrations than Eastern coal mines. These data indicate that many of these mines have been able to discharge pollutants (specifically total suspended solids). In lower concentrations than Eastern coal mines.

It appears that several factors may explain this difference. First, Western coal mining operations generally involve activities on relatively more level topography (i.e., area-type surface mines) than the steep slopes which characterizes the majority of Eastern coal mining operations (See H.R. Rep. No. 95 218, 95th Congress, 1st Sess. at 77, 103 105 (1977)). Disturbances of areas with generally more gentle slopes results in slower runoff rates and allows for opportunities for enhanced water infiltration and thus reduced runoff volumes from the sites. ( See H.R. Rep. supra., at 105,116: USEPA, 1976(b), Vols. 1 2 Therefore, runoff in such areas should have less capacity for sediment entrainment and transport, and, assuming other factors to be equal, should have reduced total suspended solids concentrations. Another relevant factor is the emphasis in the West to conserve scarce water supplies. The utilization of sediment ponds to collect and store runoff for intended uses (e.g., for fugitive dust control) provides for extended detention times which reduced total suspended solids concentrations in sedimentation pond discharges (Haan. et al. and Barfield 1978 at 66, Kathuria et al. at 56 1976, Ward, et al. 1978 at 30).

EPA's special Western category regulation is implemented by EPA Region VIII, which issue NPDES permits and oversees State programs which issue NPDES permits for coal mining operations in Colorado, Utah, Wyoming, Montana, North Dakota, and South Dakota. EPA Region VIII has developed and implemented a Regional Policy (Walline, 1977, 2d p.) which specifies quantitative effluent limitations for total suspended solids (30 miligrams per liter as a 30-day average and 45 miligrams per liter as a daily maximum), essentially identical to the effluent limitations specified in footnote 4 to the table of Section 816, 42(a).

The Office considers that the greater restrictions on total suspended solids in discharges from mines in the Western United States are necessary to minimize disturbances to the hydrologic balance in areas where the potential for erosion is extensive, water is critical, and soils are irreplaceable (Dollhopf, Vensen and Hadden, 1977 at V and pp. 129 135; Gilley, et al., 1977, pp. 697 700, 704; McWhorther, et al., 1977, pp. 1 357; and Haan and Barfield, 1978, chap. 1 6.) As noted previously, the effective utilization of discharge structures, as specified in Section 816.42, should reduce the erosion potential of discharges with low suspended solids concentrations.

700 In addition, Section 515(b)(10)(B) of SMCRA requires the use of "best technology currently available'' to remove sediment from discharges from mine areas. The effluent limitations for total suspended solids as included in the table of 816.42(a)(7) represent the "best technology currently available'' for controlling suspended solids, as is explained in greater detail above and in the preamble to Section 816.46. Establishing effluent limitations merely on the basis of the quantities of sediment in receiving waters would not represent the use of the "best technology currently available'' as required by SMCRA.

Further, the effluent limitations as specified in footnote 4 which apply to discharges from Western mines are essentially identical to the quantitative effluent limitations provided by the EPA-Region VIII Regional Policy. Therefore, operations in compliance with the requirements of NPDES permits should have little difficulty in complying with the stricter effluent limitations of this footnote. It should be noted that the final rules have been revised to exclude reference in footnote 4 to the States of Arizona and New Mexico. This change has been incorporated into the footnote to assure consistency with the scope of EPA's special effluent limitations regulations, for discharges from Western mining operations.

{15155}10. Several commenters suggested that the exemption from the required use of an automatic neutralization device or process, as provided for in Section 816.42(c), be extended to operators who demonstrate compliance with only the requirement of Sections 816.42(c)(1) and 816.42(c)(3) of the proposed regulations. That is, it was recommended that the maximum mine production rate criteria (i.e., less than 500 tons per day) to qualify for this exemption be excluded. In support of this recommendation, EPA's "Development Document for the Coal Mining Point Source Category'' (EPA, 1976 a, p. 4) was cited, which states that waste loads from coal mining operations are unrelated or only indirectly related to coal production quantities. Therefore, the final regulations relating to the exemption from automatic neutralization, provided for in 816.42(c), have been revised to exclude any mine size criteria and to include only criteria with respect to the degree of required treatment and assurance of treatment.

11. Several commenters expressed concern as to the wording of the large precipitation event exemption provided for in proposed Section 816.42(b)(1). This section provided an exemption to the requirement that discharges from disturbed areas be subject to effluent limitations when the discharges result from a precipitation even larger than a 10-year, 24-hour precipitation event or from a snowmelt of equivalent volume. A number of commenters noted that the term "snowmelt of equivalent volume'' led to unnecessary confusion with respect to interpretation of the exemption. The final regulations, therefore, have deleted reference to this term in 816.42 (b)(1). The definition of precipitation event, in Section 701.5 of the regulations, provides clarification on the application of the exemption to snowmelt runoff.

OSM has been made aware that the proposed rules exemption was not totally consistent with the similar exemption in EPA's Effluent Limitations Regulations for the Coal Mining Point Source Category (40 CFR 434). EPA's regulations allow for an exemption when the discharge results from a precipitation event equal to or larger than a 10-year, 24-hour precipitation event. To provide consistency with EPA's regulations, Section 816.42(b)(1) has been accordingly revised. Regarding comments that OSM's exemption is inconsistent with the EPA exemption because OSM's exemption is tied to the occurance, in fact, of a large precipitation event, OSM believes that matter is resolved by the Agency's regulation of new source effluent limitation regulations which adopts an exemption identical to OSM and indicates that the EPA Best Practicable Control Technology regulations will be accordingly revised.

See 44 Fed. Reg. 2587 2588 (Jan. 12, 1979). One commenter suggested that, given the duration of some mine operations (e.g., over 40 years), utilization of a large precipitation event exemption with a recurrence interval of 10 years does not meet the requirements of Section 515(b)(10)(B)(i) of the Act. The commenter recommended use of a recurrence interval for the exemption which is more in line with the expected duration of the mining activity controlled by the sediment pond. The office has determined that the 10-year, 24-hour precipitation event exemption meets the intent of the Act, because sedimentation pond designs are based for a 10-year, 24-hour event to comply with the EPA regulations and is needed to achieve a conservative design for a structure which detains water. See the discussion in the preamble to 816.46. Moreover, Section 816.42 does not authorize the industry to use sediment ponds to treat run-off from an area larger than that which is disturbed and unreclaimed over a ten-year period. To the extent that an operation will last over a ten-year period, the permittee is only allowed to drain into a pond sized for a 10-year precipitation event from an area which is limited to land mined in the last ten years.

The recurrence interval for the large precipitation event exemption may be revised, if it is found by the Office that the hydrologic balance is not adequately protected as a result of frequent discharges from larger storms during the course of mining activities.

12. Some commenters noted that EPA regulations under the Effluent Limitations Guidelines for the Coal Mining Point Source Category (40 CFR 434) allow for a variance to the EPA effluent (limitations i.e., more or less stringent limitations) to provide for site-specific cases of existing mining which represent fundamentally different conditions than those which were considered in the development of the USEPA regulations. Such different conditions essentially would include factors relating to the equipment or facilities involved, the process applied, and other site-specific characteristics different than those considered in the Development Document (USEPA, 1976 a). This variance is included in 40 CFR 434.42. The Office has not revised Section 816.42(a), after analysis of these comments.

First, it is noted that no variances are allowed under the Clean Water Act from effluent limitation regulations for new sources.

E.I. du Pont Nemours & Co. vs. Train, 430, U.S. 112, 138 (1977). Thus, there is no difference between EPA and OSM regulations on the variance question as to new coal mining operations. As to existing mines, the Office believes that no variance as suggested by the commenters should be provided in its regulation, because Congress did not intend that the regulation involved be subject to case-by-case waivers.

Congressional intention on whether a variance should be provided by an agency is controlling, E.I. du Pont de Nemours, supra; In re Surface Mining Regulation Litigation, 452 F. Supp. 327, 388 (D.C.D.C., 1978). As the court explained in the latter decision, the Act and its legislative history clearly indicate that Congress intended no uniform, board provisions for variance from the performance standards. The effluent limitation consitute performance standards and, accordingly, the Office believes it is without legal authority to enact a related variance procedure.

700 Moreover, it has not been demonstrated that the variance provision suggested by the commenters is appropriate or necessary for OSM's effluent limitations. No showing was made that EPA has ever found it necessary to grant variances from its effluent limitations, which is remarkable, in view of the large number of coal mines in the United States. Further, the commenters presented no data to establish that there are significant numbers of mining operations which materially differ from the data base from which the effluent limitations were developed. Indeed, the only significant data submitted suggests merely that some surface water contains rather high levels of suspended solids in flows from undisturbed areas, which is not relevant to determining what effluent limitations should be for water contaminated by mining. Finally, as is discussed in detail above, the data base as a whole shows that the effluent limitations can be achieved with the use of appropriate control technology.

13. Some commenters recommended that the list of effluent limitations in Section 816.42(a)(7) be expanded to include other pollutants related to coal mining, including aluminum, copper, magnesium, zinc, and sulfate. The Office has not implemented this recommendation in the final regulations. As noted in USEPA, 1976(a), treating discharges from coal mining operations to meet the effluent limitations specified in 8.16.42(a)(7) for iron, managnese, total suspended solids and pH should result in effective treatment and control of some of the additional metals listed by commenters.Id., pp. 66, 71, 170, and 172), as a result of precipitation of the metals in the neutralization process as insoluble hydrozides.

{15156}As for sulfate, USEPA 1976(a) states that sulfate in discharges from coal mining operations, although occasionally above accepted standards, are not normally at concentrations which will produce effects on water uses ( Id., pp. 1 and 53). In addition, the cost of necessary technology to provide reduction of this constituent at the concentrations observed in relation to coal mining discharges is not presently considered by EPA to be cost effective ( Id., pp. 97 99, 139 144, and 170 171).

One commenter recommended that the table of Section 816.42(a)(7) be revised to include total dissolved solids and specific numerical effluent limitations be applied to this water quality parameter. The commenter noted that control of total dissolved solids has special significance to the Western United States, particularly the Colorado River system where increased salinity concentrations have been identified as having deleterious impacts on agricultrual, industrial and domestic water uses. The EPA Development Document (pages 62, 102 138, and 148 167) identifies elevated concentrations of total dissolved solids in discharges from coal mining operations. However, this report also notes that the cost of treatment technology observed did not warrant the reductions obtained ( Id., pp. 97 99 and 139 144).

It should be noted that 816.42(a)(7) also requires that discharges be in compliance with all Federal and State laws and regulations. This requirement may result in specific effluent limitations for additional parameters in order to meet water quality standards in receiving waters, anti-degradation requirements, and other Federal and State laws and regulations. In addition, necessary compliance with this requirement addresses the concern expressed by one commenter that discharges from surface mining activities shall not degrade the water quality of a drinking water source. Moreover, the Act (Section 102, 508(a)(13), 510(b)(3), 522, (a) (d), requires that mining not be permitted at all, if reclamation cannot be feasibly performed to protect water uses. Thus, to the extent that mining would produce unacceptable discharges of sulfates and total dissolved solids, the regulatory authority should not issue permits for the areas involved.

700 SECTION 816.43 Hydrologic balance: Diversions of overland flow shallow groundwater flow.

1. Section 816.43 provides for protection of the hydrologic balance of the mining area by establishing design, performance, and reclamation standards for the diversion and conveyance of overland, shallow ground water, and ephemeral stream flows. Diversions represent an important environmental tool. They may not be necessary in all cases, but they will be required where needed to prevent or minimize water pollution, to maintain the stability of fills and to protect treatment facilities. Legal authority for this section is Sections 102, 201, 501, 503, 504, 506, 507, 508, 509, 510, 516, 517, 519, and 522 of the Act.

2. The basis and purpose of this Section was explained, in general, at 43 Fed. Reg.

41746 (Sept. 18, 1978). Technical literature relied upon by the Office for this Section includes the material listed preceeding the discussion to 816.41 material discussed below, and, in addition: (a) Mining Enforcement and Safety Administration, U.S. Department of the Interior, 1975, Engineering Design Manual_Coal Refuse Disposal Facilities, (Prepared by D'Appolonia Consulting Engineers, Inc., Pittsburgh, PA) Pg 6.80, table 6.8.

(b) U.S. Department of Interior, 1960, p. 291.

3. Several commentors suggested that ephemeral streams be included in the scope of overland flow and shallow ground water flow diversions. Ephemeral stream flow diversions require precautionary handling, in order to avoid excessive sedimentation and erosion (USEPA, 1976, Erosion and Sediment Control, Vol. 1 at 35; Vol. 2 at 1 10). Because ephemeral streams are smaller than perennial and intermittent streams and more nearly like overland flows, the Office has decided that ephemeral streams should be regulated similarly to overland flow. Therefore, the Office had added ephemeral streams to section 816.43.

4. Several commentors suggested that the disturbed areas which include diversion ditches, sedimentation ponds or roads be excluded from regulation under Section 816.43, as they are excluded from the definition of disturbed area under Section 816.42(a). Diversion ditches, sedimentation ponds and roads, however, must be installed in accordance with provisions of Part 816 other than 816.42(a), to prevent environmental damage to the extent possible. Especially important is that diversions be designed, constructed, operated, and maintained utilizing the best technology currently available to control sedimentation. (See Section 515(b)(10)(B) of the Act). Where these diversion ditches, sedimentation ponds, and roads are properly installed and maintained, the other requirements of Section 816.42(a) are effectively achieved; therefore, no change in the regulation was deemed necessary.

5. Paragraphs 816.43(a) (b) specify minimum requirements for sizes of diversion facilities, with respect to the volumes of water resulting from precipitation events that both temporary and permanent diversions must achieve. Regarding the size the precipitation events involved, Section 816.43(a) (b) refer to "peak runoff'', "precipitation events'', and "recurrence interval'', without specifying durations of those events, as the Office's intent is to require design of diversion channels which pass safely the maximum precipitation runoff rates that occur in different regions of the country. These may vary, as one commenter pointed out, for example, from a 6-hour storm in one area to a 24-hour storm in another. Thus, diversions under 816.43 will have to be sized to safely contain and pass the peak flows resulting from the storm which produces the largest peak flow in a particular location. The permittee is not, of course, required to divert flows which exceed the required storm design under these paragraphs.

6.

Recurrence Intervals.

In the proposed rules, 3-year and 10-year recurrence intervals were specified as design precipitation event criteria for temporary and permanent diversions, respectively, under 816.43(a) (b).

Several commentors noted that the 3-year storm recurrance interval was not readily available from the National Weather Service and suggested that the Office should use a two- or five-year recurrence interval as a standard, in line with National Weather Service data. Because temporary diversions are expected to be in place for a limited period and are of lesser hydrologic significance, a 2-year storm recurrence interval is a desired minimum, ("Engineering Design Manual-Coal Refuse Disposal Facilities'', U.S. Department of Interior, D'Appolonia Consulting Engineers, table 6.8, page 6.80). The regulatory authority may increase this minimum standard where significant environmental harm may occur.

The 10-year minimum recurrence interval specified for permanent diversions has been adopted from the long established record of the U.S. Soil Conservation Service, as stated the U.S.S.C.S. comments to the proposed rules of September 18, 1978 and preproposed rules of July 21, 1978.

7. Section 816.43(b) also provides for requirements concerning the gently sloping banks of permanent diversion channels and lining requirements of those channels. These requirements are important, because they will result in a stabilized diversion channel thus reducing the sediment derived from channel cutting and reducing the potential for diversion failure. USEPA, 1976, Erosion and Sediment Control, Vol. 1, at 35; Vol. 2, at 8.

{15157}8. Commentors suggested that the permittee be allowed to innovatively use asphalt, concrete or similar channel lining material, to prevent seepage or to maintain stability. The regulations have been changed to allow this flexibility, with the approval of the regulatory authority.

9. Section 816.43(c) implements the requirements of Section 515(b)(10)(b) of the Act with respect to diversions. Several commentors suggested that the wording, " . . . prevent to the extent possible using the best technology currently available,'' be deleted from this Paragraph. This language is, however, required by Section 515(b)(10)(b)(i) of the Act. Thus no change was made in the final regulations.

10. To achieve the requirements of Section 515(b)(10)(B)(i), Section 816.43(c) specifies sediment control practices that may be used singly, or in combination. The preamble to Section 816.45 of the final rules explains the utility and purpose of these measures, in general. See USEPA, Supra ., Vol. 1 at 33 36; Vol. 2 at 1 13. Commenters noted that proposed Section 816.43(c) seemed to require the use of all specified measures in every case, which was not the Office's intention. As a result, the final rule was worded so that any of the measures "may'' be used, so long as the requirements of Section 515(b)(10)(B) of the Act are achieved.

700 11. Section 816.43(d) implements Sections 515(b)(3), (4), (10), (21), and (22) of the Act, with respect to those diversions regulated under 818.43. The proposed regulations did not allow diversions to be built across slides. However, it was pointed out by several commentors that slides occur which cover spring areas, thus building up hydrostatic pressure. The regulations have been changed to allow diversions to be built across slide areas, when approved by the regulatory authority, if hydrostatic head is to be reduced to safe levels.

12. Section 816.43(e) provides for reclamation requirements of temporary diversions, to insure that lands affected by those diversions are restored in accordance with the Act. Section 816.43(f) specifies certain diversion design requirements.

In the proposed regulation, Section 816.43(f)(2) required freeboard of the diversion ditches to be set according to a formula adopted from "Design of Small Dams'', U.S. Dept. of the Interior, page 291. Several commentors noted that a critical element of the formula, one-third power of the depth, (D), had been omitted from the proposed rule and should be reincorporated. Other commentors suggested the freeboard be changed to 1.0 feet, which would only have been slightly less than the ordinary solution to the proposed freeboard formula.

Upon review by OSM, the proposed freeboard requirement was shown by commenters to increase the actual capacity of diversions to approximately four times the design discharge in some instances. This was judged to be excessive for most diversions used to divert overland flow in light of the established design criteria of 0.3 foot freeboard in U.S. Soil Conservation Service diversion design, as mentioned in the above-cited SCS comments. Accordingly, the Office established 0.3 foot as the minimum freeboard, based on the standard of the U.S. Soil Conservation Service which has been tested by many years of experience throughout the U.S. See also, USEPA, T3supra., Vol. 2 at 8.

13. Section 816.43(f)(2) also specifies that diversions are to be designed to provide for flow transition and to protect critical areas. For those cases where critical areas are protected by a diversion, a larger freeboard requirement may be justified to prevent overtopping of the diversion. USEPA, supra., Vol. 1 at 7. Therefor, the final regulations allow for establishing a higher freeboard requirement to be specified by the regulatory authority.

14. Section 816.43(f)(3) requires installation of energy dissipators where diversion discharges intersect natural streams, and is to be implemented in detail, through application of the requirements of Section 816.47. See USEPA, supra., Vol. 1 at 36. As proposed, disapators were required for all diversion discharges. Several commentors pointed out that energy dissipators are not always needed at every diversion outlet into a stream. Energy dissipators are needed only where velocity differences in the diversion and intersecting streams differ appreciably, causing disruption to the stream channel geometry or ecology. The Office agreed and has amended the final regulations to clarify this point.

15. To insure that Section 816.43 is administered consistently with the rest of the provisions of Part 816, Section 816.43(g) was added to the final rules to cross-reference the applicability of Section 816.55.

SECTION 816.44 Hydrologic balance: Stream channel diversions.

This Section established design, performance, and reclamation standards for diversions of perennial and intermittent streams, under authority of Sections 102, 201, 501, 503, 504, 506, 507, 508, 509, 510, 515, 519, and 522 of the Act. The terms "diversion,'' "intermittent,'' and "perennial'' streams are defined at Section 701.5 of the regulations. The basis and purpose of Section 816.44 was explained at 43 Fed Reg. 41746 (Sept. 18, 1978). Regulation of stream diversions under Section 816.44 is deemed necessary because of the significant alteration of the hydrologic balance that may occur if these are not properly designed, maintained, and reclaimed. See H.R. Rep. No. 95 218, 95th. Cong., 1st. Sess. at 116 (1977); Karr and Schlosser, 1978, at 229; USEPA, 1976, Erosion and Sediment Control, Vol. 1, at 25. Technical literature used in the development of Section 816.44 includes the literature listed at the preamble discussing of 816.41, the material cited immediately above, material cited in the preamble to Section 816.43, and additional literature discussed below.700 1. It was suggested by commenters that diversions of intermittent streams with a drainage basin of less than one square mile in an area be permitted without regulatory approval. In the final rules (section 701.5), intermittent stream is defined as either (a) stream draining a watershed of at least one square mile, or (g) a stream which reaches both below the local water table and obtains flow from both surface and ground waters. Thus, to the extent that a stream to be diverted satisfies the condition of the second-half of the definition of intermittent stream, Section 816.44 would apply. The Office has not exempted such diversions, because Section 515(b) of the Act requires protection of all aspects of the hydrologic balance, not just larger intermittent streams.

In arid areas, where surface waters are particularly limited, protection of small intermittent streams is particularly critical.

See H.R. Rept. No. 95 218, 95th Cong., Ist Sess. at 116 (1977). In humid areas, even intermittent streams can cause flooding problems; therefore, requiring regulation (See the preamble to Section 701.5).

2. Several commenters suggested that ephemeral streams also be included under this section or Section 816.43 with the approval of the regulatory authority. In the final rules ephemeral stream diversions are to be regulated under Section 816.43 as is explained in greater detail in the preamble to that section.

3.Section 816.44(a)(1).

Several commenters pointed out that the proposed regulation provided that the regulatory authority could approve stream channel diversions only if the diversion was necessary to achieve compliance with other performance standards. They argued that the rules did not recognize many legitimate uses of diversions in and around mine sites for reasons other than protecting water quality, slope stability, or treatment facilities.

The Office agreed that this limitation was not appropriate and the Office adopted the criteria of Section 816.57, pertaining to maintenance of stream buffer zones as more appropriate. Under that section, streams may be diverted and the buffer zone requirement waived by the regulatory without, under certain conditions, if necessary to facilitate mining operations. Thus, if the permittee can satisfy the requirements for waiver of the buffer zone under Section 816.57, it will also satisfy Section 816.44(a)(1). {15158}4.

Section 816.44(a)(2)(3).

These provisions will insure consistency in the use of diversions under Section 816.44 with other applicable legal requirements. Under Section 816.44(a)(2), the regulatory authority and permittee are to insure that diversions comply with the other requirements of this subchapter and with all applicable non-SMCRA requirements, particularly those of the River and Harbor Act of 1899 (33 USC Secs. 401 et seq.

and the "dredge and fill'' permitting requirements of Sections 208 and 404 of the Clean Water Act (33 USC Secs. 1288, 1404).

5. Section 816.44(b) establishes detailed design, performance and reclamation standards which are to be followed for those diversions authorized under Section 816.44(a). Under Section 816.44(b)(1), the diversion is to remain stable and to prevent the conveyance of suspended solids outside the permit area according to the requirements of Section 515(b)(10(B) of the Act. ( See USEPA (1976) Erosion and Sediment Control, Vol. 2 at 9.) The second sentence of Section 816.44(b)(1) has been modified in the final rule to delete the phrase "in any event,'' as it was redundant in view of the rest of that sentence. No change in meaning of the sentence is made by this revision.

6. Section 816.43(b)(2) is the keystone of this Section. The sizing of diversions to adquately contain flows of water is critical. (USEPA 1976, supra Vol. 1, at 35 36, Vol. 2 at 6 9.) Minimum design capacities, based on the deviation and frequency of precipitation events, are specified for both temporary and permanent diversions.

In the proposed rule, the Section was worded in a manner that could have been construed to require that the channel, bank, and associated flood-plain each pass the minimum peak runoff event. Many commenters objected to that possible construction, which would have required that the new stream's channel be designed to safely pass a 10-year or 100-year storm event. The Office does not intend that the stream channel itself pass this peak runoff, but that a combination of the channel, bank, and flood plain configuration be used for that purpose. The channel should however, be designed to approximately the same size as the undisturbed inlet and outlets to and from the diversion, to decrease the potential of downstream damage. Chow, V. T. (1974, p. 7 26 thru 7 29) The final regulation was amended to clarify this point.

7. For temporary diversions, the carrying capacity required under Section 816.44(b)(2) is for the peak runoff from a 10-year storm event. The 10-year storm recurrence interval requirement is based, in part upon the success of U.S.D.A. Soil Conservation Service as explained in their comments to the pre-posed and proposed rules, and, in part, upon general practice as outlined in U.S. Mine Safety and Health Administration, 1975, p. 6. 80, table 6.8.

One commenter felt that a 10-year storm interval was excessive and suggested a three year interval that was alleged to more nearly approximate natural conditions. Natural conditions vary considerably between rainfall areas, thus natural stream channels vary accordingly. Because of this variability, a single national standard such as a three year storm interval, would not be appropriate. The Office has allowed for this variability by requiring the stream channel of the diversion to approximate the upstream and downstream stream channel. The stream channel bank, and flood plain configuration must, therefore, in total pass the peak runoff from a 10-year storm event. 8. A new Paragraph (d) has been added to Section 816.44 in the final rules, by expansion and transfer of portions of Section 816.97(d) of the proposed rules, to consolidate stream channel protection requirements to enhance and protect fish and wildlife under Sections 102, 201, and 515 of the Act. The basis and purpose of this provision of Section 816.44 are found at the preamble to the corresponding material in Section 816.97.

9. Several commenters were concerned with potential overlap of other State and Federal regulation of stream diversions, especially the Corps of Engineer/Environmental Protection Agency's Section 404 Clean Water Act program. It is true that streams which fall under the 404 program of the Clean Water Act will in some cases also be covered by Section 816.44. However, the Office does not believe that conflict exist between Section 816.44 and requirements applicable under Section 404, Clean Water Act, nor did commenters specify any such conflicts. Rather, the Office views Section 816.44 as an important complement to Section 404 programs, particularly because the Office's regulation is tailored specifically to coal mining.

SECTION 816.45 Sediment control measures.

This Section of the final regulations includes sediment control measures to be utilized in conjunction with sedimentation ponds as best technology currently available to achieve and maintain the water quality standards of the Act. In addition, implementation of such sediment control measures with proper demonstrations to the regulatory authority in accordance with Section 816.46 can result in reductions of requirements for sediment storage volume and detention time for sedimentation ponds.

Acceptable sediment control practices include: (a) distributing the smallest practicable area at any one time during the mining operation, through progressive backfilling, grading, and prompt revegetation; (b) stabilizing backfill material to promote a reduction in the rate of volume of runoff; (c) retaining sediment within the disturbed area; (d) diverting runoff away from the disturbed area: (e) diverting runoff using protective channels or pipes; (f) using straw dikes, riprap, check dams, mulches, vegetative sediment filters, dugout ponds, and other measures to reduce overland flow velocity, reduce runoff volume, or trap sediment; and (g) treating with chemicals. Grim, (1974) pp. 101 114; USEPA, Erosion and Sediment Control, (1976) Vol. 2, pp. 1 51; USEPA, Erosion and Sediment Control (1976) Vol. 1, pp. 1 84.

Authority for this Section is contained in Sections 102, 201(e), 501(b), 503(a) and 515(b) of the Act. The preamble discussion supporting the proposed rule is incorporated herein by reference. 43 Fed. Reg. 41746 (Sept. 18, 1978).

1. Some comments on this Section overlapped comments on Sections 816.42 and 816.46. To this extent, responses to comments on such Sections are incorporated herein by reference. Other comments on this Section are discussed below.

2. One commenter said the use of "appropriate sediment control measures'' and "best technology currently available'' was redundant, and one or the other should be deleted. "Best technology currently available'' is defined in Section 701.5, and is a requirement for the operator to examine a number of methods, recognized as being effective.

See preamble discussion to Section 701.5. "Appropriate sediment control measures'' promotes the implementation of the selected methods.

3. One commenter recommends inserting words to assure that one or several of the sediment control techniques may be used but all are not necessary. The Office has added language to clarify that such additional sediment control measures are necessary to achieve and maintain water quality standards and effluent limitations of the Act.

4. Another commenter said that this Section of the regulations was open-ended, implying that other measures not listed may be required. To assure flexibility and promote the development of innovative control techniques, the Office has decided to retain the aspect of the regulation which implies that other unlisted sediment control measures can be implemented.

{15159}5. Commenters suggested substituting the word "stabilizing'' for "shaping'' in Section 816.45(b). The rationale for this change was that shaping was only one of several stabilizing techniques used for erosion control. The commenters felt that shaping might be incompatible with the approximate original contour requirement. The Office has decided to adopt this recommendation. Stabilizing by mechanical and vegetative techniques are only two of many methods which can be used to reduce the rate and volume of sediment transport.

6. One commenter said "treating with chemicals'' should be reworded to say "utilization of flocculating agents.'' The Office has decided that the term chemicals is broad enough to include not only organic polyelectrolytes, but could also include such other chemicals as lime or alum that could possibly be used to increase floc size and which may at the same time improve other water quality parameters.

7. One editorial change was made to clarify the intent of the regulation within the context of the law. In Section 816.45(a), "prompt'' revegetation was replaced with "timely'' revegetation in accordance with Section 816.111(b). The purpose of this change was to stimulate the operator to take swift measures in re-establishing the vegetative cover.

700 SECTION 816.46 Sedimentation ponds.

816.46(a) General requirements.

The Office has decided to require sedimentation ponds in conjunction with other sediment control measures as "best technology currently available'' to prevent to the extent possible additional contributions of suspended solids to streamflow or runoff outside the permit area and to achieve and maintain applicable effluent limitations.

Sedimentation ponds are structures, including barrier dams or excavated depressions, which slow down water runoff to allow sediment to settle out. To effectively settle particles, sedimentation ponds must provide sufficient storage volume for both sediment and detained water. In addition to providing adequate storage volume, ponds must detain water for a sufficient time to allow sediment to settle out. It is well established that sedimentation ponds used with other sediment control measures are "state-of-the-art'' for controlling sediment movement from surface coal mining operations. The Environmental Protection Agency (EPA) has undertaken a number of studies to determine the best methods for controlling sediment laden flow. EPA studies have concluded that sedimentation ponds are the key to controlling sediment. According to EPA, such ponds are "the most effective structures for trapping sediment.'' The conventional method for controlling sediment that reaches the periphery of the mining operations is through the construction of a sediment pond to intercept the surface runoff before it leaves the mining site.

Erosion and Sediment Control_Surface Mining in the Eastern United States, at 65 ( 1976 ). Another EPA study indicates sedimentation ponds can be considered as the last opportunity to treat the runoff before the water leaves the mine area. Hill, Sedimentation Ponds_A Critical Review, at 2 (Oct. 1976). According to one of the leading commentators in the field, sediment ponds should be located as close to the sediment source as possible and before drainageways reach the main stream. Grim and Hill, Environmental Protection in Surface Mining of Coal, EPA 670/2 74 093; at 103 (Oct. 1974).

Also, several states, including West Virginia, Pennsylvania, Kentucky and Montana now require sediment ponds to control sediment from mining operations. Hill, at 13 (1977).

The mechanics of sediment laden flow are complex. The major factors governing the efficiency of a sediment pond are the geometry of the basin, the inflow hydrograph, the inflow sediment graph, the outlet design, the flow pattern within the basin, the characteristics of the sediment and the settling behavior of the suspended sediment particles, the detention time, and, where applicable, control devices within the basin which minimize short-circuiting, turbulence, and resus pension. Ward, Simulation of the Sed imentology of Sediment Detention Basins at 32 ( 1977 ).

The final sedimentation pond design criteria are supported by Sections 102, 201(c), 501(b), 503 (a) and (b), 515(b)(10), 515(b)(24) and 516 of the Act. See also Surface Mining Regulation Litigation, 456 F. Supp. 1301 (D.D.C. 1978).

The Office has considered alternatives analyzed in the regulatory analysis. The rationale for selecting the final regulations in lieu of the alternatives is found in the context of this preamble discussion, the disposition of submitted comments related to the final regulations and the preamble to the proposed regulations for the permanent program.

The final design criteria for sedimentation ponds contain the following key requirements. Sedimentation ponds may be used individually or in series. Especially in mountainous areas, several small ponds may be more desirable than a single large pond because of topographic constraints. Several small ponds may also improve overall detention time. Moreover, one small pond can be used to remove the bulk of the large particles thus reducing the need to clean out a larger polishing pond. Hill, at 14 (1977); Erosion and Sediment Control at 54 (1976).

Sedimentation ponds must be constructed prior to any disturbance of the area to be drained into the pond and as near as possible to the area to be disturbed. Grim and Hill at 103 (1974). Generally, such structures should be located out of perennial streams to facilitate the clearing, removal and abandonment of the pond. Further, locating ponds out of perennial streams avoids the potential that flooding will wash away the pond. However, under design conditions, ponds may be constructed in perennial streams without harm to public safety or the environment. Therefore, the final regulations authorize the regulatory authority to approve construction of ponds in perennial streams on a site specific basis to take into account topographic factors. Hill at 11 (1976); Erosion and Sediment Control at 54 (1976).

In general, various subsections of the regulations dealing with sedimentation ponds require the operator to demonstrate how elected options will meet design criteria. Several commenters desired clarification as to how this could be accomplished. The operators have the burden of providing adequate assurance or proof that the methods proposed are effective and safe. Such proof can be presented for approval by the regulatory authority in many different forms, and is not specified in any specific format. Except as specified in the regulations, such forms may generally include but are not limited to the following: a. Maps, graphs, or charts.

b. Valid reports of similar work performed by others.

c. Testimony by recognized professionals, or d. Actual laboratory experiments, and controlled field plot demonstrations.

The operator has the option of electing the most advantegous method. Final approval is still vested in the regulatory authority.

The following general comments were received on Section 816.46(a).

Commenters requested insertion of words in this section to point out the exemption from the requirement to construct ponds in order to track Section 816.42. Such insertions as "if necessary,'' or "as required'' were suggested. This issue has been previously addressed in the context of whether sediment ponds are "best technology currently available.'' Operators will find that sedimentation ponds can be used to their benefit to reduce sediment and achieve effluent limitations. The insertion of the suggested wording might expand the narrow exemption contained in Section 816.42. To avoid any possibility that the exemption would be expanded by this language addition, the Office decided to reject the comment.

{15160}Commenters requested clarification of the terminology "disturbance of the disturbed area'' as used in the proposed regulations. Disturbance is a progressive process which can be considered as a deviation from a baseline condition. The wording has been clarified to reflect the requirement to construct a pond prior to any disturbance of the existing pre-mining condition.

Commenters suggested allowing construction of sedimentation ponds in intermittent and perennial streams. Because of the physical, topographic, or geographical constraints in steep slope mining areas, the valley floor is often the only possible location for a sediment pond. Since the valleys are steep and quite narrow, dams must be high and must be continuous across the entire valley in order to secure the necessary storage. There are two other alternatives. One would be to use an area to one side of the stream for the pond. This will not be physically possible in most cases, and if pursued, might cause serious additional disturbance to the environment. Kathuria at 4 (1976).

The other alternative would be to declare the area unsuitable for mining. Each case needs to be judged on its own. The Office recognizes that mining and other forms of construction are presently undertaken in very small perennial streams. Many Soil Conservation Service (SCS) structures are also located in perennial streams. Accordingly, OSM believes these cases require thorough examination. Therefore, the regulations have been modified to permit construction of sedimentation ponds in perennial streams only with approval by the regulatory authority.

One commenter suggested that a new Section should be added for controlling sedimentation from mining on steep slopes and that the new Section should focus on performance standards with no reference to design criteria. The commenter contends that 0.1 acre-foot for each acre of disturbed area within the upstream drainage area is sufficient to control runoff and sedimentation. Also the commenter suggests the design standards would appear to eliminate bench ponds.

The commenter did not submit any data or information such as maps, contours and mine plans and drainage of their sediment ponds to substantiate the comments. Based on this suggestion alone without the submission of data, the office has no reason to believe that performance standards of the Act will be achieved and maintained.

Commenters said sediment ponds could cause degradation and scouring of some stream channels especially in areas prone to arroyo formation. The Office has decided that such downstream erosion can be mitigated. As discussed previously, sediment ponds are necessary to achieve and maintain water quality standards of the Act during surface coal mining and reclamation operations. To avoid downstream erosion or scouring, operators are free to divert streams around surface coal mining activities in accordance with Section 816.44. Moreover, downstream scouring can be minimized by locating the sediment pond out of perennial streams thus assuring that natural sediment loads remain in the stream. In addition, downstream adverse effects can be mitigated by the use of energy dissipators, riprap channels and other devices as required by Section 816.45.

816.46(b) Sediment storage volume.

The final regulations establish two methods for computing required sediment storage volume. First, the operator may utilize the Universal Soil Loss Equation (USLE), gully erosion rates and appropriate sediment delivery ratios to compute sediment yield. This method allows the operator maximum flexibility to account for site specific variations in sediment yield. The preamble to the proposed rules 43 Fed. Reg. 41747 (Sept. 18, 1978) supporting the selection of the USLE is incorporated herein by reference.

Under the second method, operators may utilize a general rule for computing sediment yield from the disturbed area. The operator may assume a sediment yield of .1 acre-foot for each acre of disturbed area. The regulatory authority is authorized to require greater sediment storage volume if necessary. A lesser sediment storage volume to .035 acre-foot for each acre of disturbed area may be authorized if the operator demonstrates that sediment removed by other sediment control measures is equal to the reduction in the pond sediment storage volume. The preamble to the proposed rules supporting this Section is hereby incorporated by reference. 43 Fed. Reg. 41748 (Sept. 18, 1978).

The following comments were received on Section 816.46(b).

Commenters requested technical justification for the option to construct sediment ponds having acumulative sediment volume from the drainage area to the pond for a minimum of three years. Commenters submitted no data to refute the design option. However, commenters said the majority of ponds had an operational life of less than six months. Commenters added that this was not the case with sedimentation ponds serving reclaimed areas, but few of the latter category were required due to consistent attainment of effluent limitations. Again, commenters failed to submit data supporting this assertion.

The final regulations include a three-year minimum sediment storage volume for ponds. Operators may use the USLE to compute required sediment storage volume to capture sediment yield for a minimum three-year period. As an alternative, operators may compute sediment storage volume based upon an initial requirement of 0.1 acre-foot for each acre of disturbed area within the upstream drainage area. These two options offer operators the flexibility to include site-specific variation in design of sediment ponds.

A three-year minimum storage volume is necessary to collect sediment during normal premining, and reclamation operations under the Act. Under prior state laws, the normal life of ponds designed for contour mines was usually from one to three years. For area mines it was usually much longer. Hill at 11 (1977). With the implementation of the Surface Mining Act, surface coal mining and reclamation operations will generally occur over a period much longer than three years. Premining and actual mining will normally occur over more than one year. Further, the pond may not be removed until the disturbed areas has been restored, the vegetation requirements of Section 816.111 816.117 are met, and the drainage meets applicable stream standards. Thus, a three-year minimum storage volume is not an excessive requirement.

In particular, vegetation standards require, as a minimum, vegetative cover capable of stabilizing the soil surface for erosion. Site-specific investigations in the western coal fields have shown that such stabilization may not occur within the first year or two after mining. Gullies formed on revegetated surfaces will often increase sediment yield. Moreover, internal drainage to graded, topsoil and seeded areas is possible. Hardaway and Kimbal, Trip Report at 8, 12, 23 (1976).

See also Dollhopt et al. 71 73 (1977). This type of extensive erosion after mining requires that sediment ponds be designed with a minimum sediment storage volume of three years.

{15161}Moreover, data collected in Appalachia support a three-year sediment storage volume. According to one study, gullies can form after revegetation causing erosion. Curtis and Superfesky at 157 (1978). In addition, measurements of sediment accumulation in debris basins show highest sediment yield during the first six months following mining, with excess sediment loads occurring within three years following mining. Curtis at 88 (1974). According to this study methods of mining and handling spoil affect sediment yield, and so does the speed with which vegetation is established. The Office considered that this study examined surface mining prior to implementation of the standards of the Act. Compliance with the Act should result in a reduction of sediment yields from surface mined lands. However, sediment yield is not only a function of operating practices, but also of revegetation which is more a function of climate, terrain and soil type. Normally in the east, revegetation will require, at the minimum, six months to stabilize the surface area with vegetation. Curtis at 88 (1974). Naturally in the arid west a considerably longer period will be required for adequate stabilization. Hardaway and Kimball at 8, 12, 23 (1976). All of these factors support a pond design standard which includes a sediment pond with a minimum three-year sediment storage volume.

One commenter wanted to create a larger sediment storage volume to reduce the frequency of sediment cleanout. The intent of this regulation is to specify the minimum sediment storage volume necessary for a well-constructed sediment pond. Accordingly the word "minimum'' is added to clarify this point.

The use of the USLE for mined area was questioned by several commenters. They contend that although this method is well established for sheet erosion losses on argiculture land, it may not be truly accurate or useful in other areas. The Office has decided to retain the option to use the USLE to compute sediment storage volume procedures since making the USLE predictions is a well established and accepted practice of the engineering and scientific community. Meyer at 3 (1975); Haan at 5.1 (1978); Wischmeir (1965): USDA, 1975, Procedure for Computing Sheet and Rill Erosion on Project Areas, SCS Technical, Release No. 5 (Rev.). The USLE recognizes the effects of the primary environmental and physiographic factors causing erosion, without having to establish site-specific conditions through field measurements of data.

700 The use of gully erosion rates and sediment delivery ratio factors was questioned by some commenters. The Office has retained these requirements. The USLE considers only soil lost by sheet erosion. Where gullies are active, the eroded material must be accounted for in determining the sediment entering the pond. The SCS Technical Release No. 32 is one reference which gives procedures for determining the rate of gully development. Sediment delivery ratio is defined as D=Y/A where Y is the sediment yield from a watershed and A is the gross erosion occurring on the watershed. Gross erosion is the sum of a sheet and rill erosion, gully erosion, and stream erosion. On active and reclaimed surface mines, sheet and rill erosion are the principal components of A. Haan and Barfield at 221 (1978). The sediment delivery ratio is necessary to account for eroded material which is deposited prior to entering the pond. Haan at 5 (1978); McKensie at 4 (1977).

One commenter questioned whether the regulatory authority should establish methods "for determining sediment storage volume.'' The Office agrees that this is not the proper role of a regulatory authority. Accordingly, the regulation has been changed by substituting the word "approved'' for "established.'' With this concept, the operator will submit his methods for review and approval by the regulatory authority.

Commenters requested that reference and justification for using the USLE should be discussed. They stated that accumulated sediment volume can be estimated using the USLE or forms thereof. According to commenters, methods using gully erosion rates and sediment delivery ratios, either singly or in combination, which estimate sediment volume are not commonly used for surface mining.

Section 816.46(b)(1) authorizes the use of the USLE, gully erosion rates, and the sediment delivery ratio converted to sediment volume using the sediment density, or other empirical methods derived from regional sediment pond studies to determine the sediment storage volume. Haan and Barfield (1978), ch. 5, discuss soil erosion and sediment yield similarities between surface mining and agricultural land. The similarities are helpful since agricultural erosion has been studied for many years resulting in the development of procedures for its prediction and control. Soil erosion results when soil is exposed to the erosive powers of rainfall and flowing water. It is not possible to conduct massive earth moving operations necessary for strip mining without exposing soil to these erosive forces. It is possible to use the USLE to plan the surface coal mining and reclamation operations so that sediment production can be reduced. Through the use of properly designed and constructed sediment detention structures containing adequate storage volume the adverse effects of mining on stream water quality can be essentially eliminated. (Haan and Barfield at 5.1 1978).

Commenters questioned the selection of sediment storage volume equal to 0.1 acre-foot for each acre of disturbed area within the upstream drainage area. Other commenters suggested that the 0.1 value be reduced to 0.035. The Office has retained this section of the regulations. This method is provided as an alternative choice to minimize the amount of onsite study for determining adequate sediment storage volume. If the operator utilizes on-site erosion and sediment control measures, such as prompt and progressive backfilling, prompt revegetation, and upstream sediment traps, the regulatory authority may approve a sediment storage volume not less than 0.035 acre-foot for each acre of disturbed area within the upstream drainage area. To obtain the reduction in sediment storage volume, the operator must show the sediment removed by other control methods is equal to the reduction in sediment storage volume. Grim and Hill at 102 (1974). Thus, a sediment storage volume of 0.1 acre-foot per acre of disturbed area is the initial standard which can be adjusted downward to 0.035 upon proper demonstrations by the operator. A sediment storage volume of 0.035 acre-foot for each acre of disturbed area is a nationwide minimum sediment storage volume for sedimentation ponds. Simpson, Westmoreland Resources, comments on the Interim Final Rules, page 1 (March 23, 1978); National Coal Association, Comments, and data on the proposed interim regulatory program, Section 715.17(e)(1), Oct. 1977. Robbins, Comments on the Interim Final Rules, at 16, (March 15, 1978).

700 Commenters suggested the minimum storage volume for sedimentation ponds was excessive. This volume is composed of storage for the runoff from the 10-year 24-hour precipitation event, and 0.1 acre-foot of storage for each acre of upstream disturbed area. A settling pond must include both a settling volume and a sediment volume to hold inflow for a sufficient period of time to allow sediment to settle and provide storage volume for such sediment. Therefore, a settling volume with a minimum detention time, and a sediment storage volume have been specified. Kathuria at 8 (1975); Grim at 106 (1974); Ward at 2 (June 1978).

Commenters suggested the regulations should require surface area criteria in design of sedimentation ponds, particularly where necessary to meet the effluent limitations. They cite "Physiochemical Processes,'' by Walter J. Weber, Jr., to support this proposition. This discusses overflow rate, detention period, terminal particles velocity and effective tank depth. This reference discusses "the removal of discrete particles in an ideal settling tank,'' where inflow, outflow, surface area, and volume are constant values in a steady state process.

{15162}The Office agrees that surface area is an important consideration in the design of a sediment pond to achieve and maintain water quality standards. Surface area should be adequate to provide both the required storage capacity and the sediment removal capability to achieve and maintain water quality standards. Kathuria at 87 (1976). The Office believes, however, that established criteria for sediment storage volume and detention time will result in adequate pond surface area to meet water quality standards. This determination is based upon the preamble discussion supporting Section 816.46(b) and (c) which is incorporated herein by reference.

816.46(c) Detention time.

This section of the final regulations requires sediment ponds to be designed, constructed and maintained to detain sediment laden water for a period of time sufficient to allow the water to come to rest and clarify to assure the discharge from the pond meets water quality standards of the Act. The average time design inflow is detained in the pond is the theoretical detention time. Haan at 6.6 (1978). This measure of flow through velocity is an essential design criterion for sedimentation ponds. Haan at 6.6 (1978); Hill at 11 (1976); Kathuria at 8, 56 (1976); Ward at 26 (1978); Janiak, Purification of Waters from Lignite Mines, at 59 (1975); USEPA Erosion and Sediment Control, Vol. 2, 51 79 (1976).

The final regulations establish a 24-hour theoretical detention time as the initial design detention time for sediment ponds. The regulatory authority is authorized to lower the theoretical detention time upon adequate demonstrations by the person who conducts the surface mining activity. In no event may the regulatory authority lower theoretical detention time from 24 hours without a demonstration that water quality standards including effluent limitations will be achieved and maintained. The regulatory authority may require the pond design to include a theoretical detention time above 24 hours to meet water quality standards including effluent limitations. The regulatory scheme recognizes that to achieve the water quality standards of the Act, the operator must consider site-specific conditions such as soil type, particle size, particle specific gravity, slope, moisture conditions and other physical conditions. In addition, the final regulations recognize the importance of pond inflow and outflow design, and pond shape in determining necessary detention time. The preamble to the proposed rule as clarified in the respoonse to comments on this section is incorporated herein be reference. 43 Fed. Reg. 41748, Sept. 18, 1978.

The following comments were received on Section 816.46(c).

Most industry commenters suggested that the use of sedimentation ponds alone will not achieve EPA effluent limitations. Although some industry commenters concede that sediment ponds are the best technology currently available, the same commenters add that even the use of such technology will not achieve EPA effluent limitations. Commenters submitted no independent field data to show that properly designed sediment ponds would not achieve effluent limitations. Rather, commenters challenged the data base, methodology, recommendations and conclusions of the Kathuria study cited in the preamble to the proposed rules, 43 Fed. Reg. 41748, Sept. 18, 1978.

In particular, regarding the initial design criteria of a 24-hour theoretical detention time for the water inflow entering the pond from a 10-year 24-hour precipitation event, commenters suggested that this detention time would not necessarily result in a 94 percent removal efficiency which may be necessary to achieve effluent limitations. Commenters added that when particles in the inflow are less than 20 microns, a sediment pond built to OSM criteria will not settle out particles during high rainfall events. Commenters suggested that pond efficiency was more a function of surface area and inflow sediment concentration and velocity. According to commenters, chemical treatment will probably be a requirement rather than option to meet effluent limitations. Environmental group commenters said sediment ponds were the best technology currently available, but greater detention times and surface area would probably be required to meet effluent limitations.

Sedimentation ponds are the heart of the regulatory scheme. As discussed previously sedimentation ponds are the key to controlling sediment. Nonetheless, as industry commenters point out, sedimentation ponds alone may in some cases be insufficient to achieve and maintain applicable effluent limitations. Therefore, the Office has required the use of additional sediment control measures if necessary to achieve effluent limitations.

In addition to sediment ponds, operators must use, as necessary, straw dikes, riprap, check dams, mulches, vegetative sediment filters, dugout ponds, and other measures that reduce overland flow velocity, reduce runoff volume, or trap sediment to meet effluent limitations. The effectiveness of such sediment control measures is well documented. Grim and Hill at 101 115 (1974), Erosion and Sediment Control 59 72 (1976).

Moreover, disturbing the smallest practicable area at any one time during the mining operation through progressive backfilling and grading, timely revegetation, retaining sediment within disturbed areas, and diverting runoff using protected channels or pipes through disturbed areas will effectively reduce sediment laden flow to sediment ponds thereby decreasing pond maintenance and increasing overall efficiency of sediment control measures employed. Grim and Hill at 101 115 (1974), Erosion and Sediment Control 59 72 (1976).

As commenters have repeatedly said, such sediment control measures will effectively reduce sediment laden flow from surface coal mining and reclamation operations. West Virginia Surface Mining and Reclamation Association, Comments on Interim Rules, Section 715.17(e) at 6 (1977), West Virginia Department of Natural Resources, Comments on Interim Rules, Section 715.17(e) 1 of 2 (1977).

The final design criteria for sedimentation ponds, in conjunction with other sediment control, are intended to achieve the water quality standards of the Act. The sediment pond design criteria requiring inflow detention time are critical to effective performance of sediment ponds. Under the final regulations, a 24-hour theoretical detention time for water inflow or runoff entering the pond from a 10-year 24-hour event is established as the threshold criteria for sediment ponds. The regulatory authority may require additional detention time if necessary to achieve effluent limitations. Similarly, the regulatory authority may approve a lower detention time to 10 hours, when the person who conducts the surface mining activities can demonstrate that the process will achieve and maintain effluent limitations and is harmless to fish, wildlife and related environmental values.

The detention time requirements are based upon the following technical literature and comments. In 1976, EPA commissioned a study of nine selected sediment ponds in the States of Pennsylvania, West Virginia and Kentucky. Kathuria, Effectiveness of Surface Mine Sedimentation Ponds (1976). The conclusions and recommendations of this study demonstrate the need for and timelines of the final design criteria for sediment ponds. According to the study, construction of ponds not in accordance with approved plans and specifications and poor subsequent maintenance of the ponds were the two major factors contributing to their poor performance. Moreover, the investigators found that timely removal and disposal of accumulated sediment, cleaning of clogged outflow pipes, repair of emergency spillways and embankment repair are extremely important for the proper functioning of sediment ponds and are usually overlooked. Kathuria at 3 (1976). Thus, the final regulation for sediment ponds are essential to assure that sediment ponds are properly designed, constructed and maintained to achieve the water quality goals of the Act.

{15163}The study identified three ponds which achieved EPA effluent limitations during both baseline (non-storm conditions) and storm conditions. Kathuria at 47, 48 (1976). Based upon these and other collected data which show that removal efficiency is a function of detention time, the study recommended that sediment ponds be designated and constructed with at least a 10-hour actual detention time. Kathuria at 8, 56 (1976).

Studies of actual pond detention time versus theoretical detention time have shown actual detention time to be 30 to 70 percent of theoretical detention time with most ponds falling into the lower category. Hill at 11 (1976). Assuming ponds are approximately 50 percent efficient, to achieve an actual detention time of 10 hours, as recommended by Kathuria, ponds should be designed with a theoretical detention time of approximately 20 hours. According to data collected by Kathuria, the pond will have a removal efficiency of 90 percent with this detention time. Accordingly to a simulation model run by Ward, removal efficiencies greater than 90 percent may be required if water quality standards are to be achieved. Ward at 30 (1978). Since according to Kathuria data, removal efficiency begins to level off at approximately 24 hours theoretical detention time because of the additional time required to settle particles less than 20 microns, the Office has decided to establish a 24-hour theoretical detention time as the initial design standard for sediment ponds.

Regarding industry's contention that when even small amounts of incoming sediment are less than 10 or 20 microns in size, effluent limitations will not be achieved, the Office emphasizes that three of the nine ponds tested by Kathuria met effluent limitations during baseline and rainfall events with inflow containing sediment in the 10 to 20 micron particle size range. Kathuria at 89 100 (1976).

In addition, using Stoke's Law, which is an idealized formulation recognized as basic to all settling theory, a 20-micron particle would settle at a rate of approximately 2.4 ft/hr at 10 degree C, therefore falling 57 feet in a 24-hour period. A 10-micron particle under the same conditions settles at approximately 0.6 ft/hr. falling 14.4 feet in 24 hours.

Of course, short-circuiting and eddy currents make the real world situation different from the ideal situation expressed by the Stoke's Law approach. Assuming the pond to be approximately 50 percent efficient, the average actual detention time (as opposed to the theoretical 24-hour detention time) would be 12 hours. Twelve actual hours detention time should be ample to remove the 20-micron particles and most of the 10-micron particles. For the majority of the runoff events, the detention time achieved will be significantly higher than 24 hours, thus offering additional removal capability. The Office believes, therefore, that sediment ponds will generally be effective in removing particles 10 microns and larger.

To the extent that inflow volume or sediment concentration become factors in failing to achieve water quality standards, operators should consider locating ponds out of perennial streams and utilize measures to control the inflow rate to sediment ponds. For example, Kathuria found that Pond 2 which met effluent limitations had the benefit of initial settling of inflow in a pit area. The surge effect from a rainfall event was reduced by controlled pumping of influent to the pond. Pond 6 also had a portion of the inflow pumped from the mining pit area to the sediment pond. Kathuria at 22, 31 34 (1976). Other measures can also be applied to reduce the surge effect of a rainfall event. Erosion and Sediment Control 59 72 (1976), Grim and Hill 101 115 (1974), Hill at 14 (1976).

With the proper design construction and maintenance of sediment control measures including sediment ponds, the Office believes that water quality standards of the Act can be met. To the extent that particle size distribution precludes attainment of water quality standards even with application of these sediment control measures, the operator must use flocculants to achieve water quality standards. Hill at 6 (1976).

The Office emphasizes that Congress was well aware that best technology for sediment control could necessarily include the use of flocculants. In discussing best technology currently available, the House Committee on Insular Affairs stated: 700 One example of the best available technology for sediment control, which is applicable throughout the United States and can be used on a mine-by-mine or a multiple-mine basis, is that technology employed at the surface coal mine of the Washington Irrigation and Development Company. This mine is located in the Hanaford Creek drainage, south of Centralia, Washington. The general geographic characteristics of this area are common to other coal areas. . . . In this instance, in order to meet year-round water quality standards for migrating fish, the company designed a relatively inexpensive method of settling virtually all of the sediment in the surface runoff from the mining operation. Several sets of double siltation entrapment ponds were constructed on the small tributaries leaving the mine property. Elimination of sediment loads is achieved through a two-stage process, with the initial gravity settling occurring in the first pond and the introduction of a biologically inert flocculating compound into the flow between ponds. This results in a discharge that contains even less silt than the normal background flow. . . . H. Rept. 95 218, 114, 115 (1977).

Thus, Congress clearly contemplated the use of flocculants to achieve water quality standards. Further, Congress intended that such innovative technology should be transferred to other coal fields. In this regard, the Committee added: This technology sets a standard for the industry and is representative of the innovation the mining industry can achieve when required to meet specific water standards as a precondition to operation. It should be noted that this approach is applicable not only in area-type mining situations but also in the mountain mining operations in the Appalachian coal fields, where such facilities might serve more than one specific mine site in a small drainage area. H. Rept. 95 218, 115 (1977).

Moreover, the Committee was well aware that control costs would increase with the use of flocculants. Nonetheless, the Committee stressed that achieving water quality standards must be the guiding principle under the Act. To remove any doubt with respect to whether water quality standards should yield to cost considerations, the Committee said: The bill requires that the standard for siltation control should be the best available technology in recognition that the application of such technology might well increase present siltation control costs of some mine operations. However, the Committee rejected the notion that the standards should be adjusted to what individual mine operators state they can or cannot afford. The Committee's action requires the adjustment of operation to the environmental protection standards rather than the opposite. With this approach, the Committee believes that operators will find the right combination of techniques to meet the siltation on the most cost-effective basis. H. Rept. 95 218, 115 (117).

{15164}Thus, Congress intended that operators use flocculants if necessary to achieve and maintain water quality standards. I11Congress' belief that flocculants are available to effectively control sediment in the submicron size range is buttressed by testimony on flocculants received during public hearing on the proposed rules. During hearings in Charleston, West Virginia, a vendor of such chemical agents testified to their effectiveness in facilitating the capture of submicron size sediment. Public Hearing 450 459 (Oct. 26, 1978). Therefore, the Office has included flocculants as best technology currently available if necessary to achieve and maintain water quality standards.

Commenters suggested that the term detention time be more precisely defined in the regulations. Theoretical detention time is determined by a flood routing procedure for the design event. Haan, at 2.91, 4, 8, and 4.17, 6.6 (1978). The routing procedure balances the design release rate and the available storage (settling storage). The balance achieved assures that water will be released rapidly enough to prevent overtopping the dam, and that it will be released slowly enough to allow proper settling for the design event. Soil Conservation Service National Engineering Handbook Chapter 15 and 17 (1971). As the release rate is decreased, the amount of storage is increased and the outflow hydrograph is lengthened (because the settling storage is released over a greater length of time). The net effect of a smaller release rate is greater distance between the centroids of the inflow and outflow hydrographs, thus, giving a larger theoretical detention time. The determination of the centroid (of the outflow hydrograph) is an analytical procedure discussed in Haan and Barfield, at 6.6 (1978).

Commenters questioned the selection of a 10-year 24-hour precipitation event as the design criterion for a sediment pond. The selection of a 10-year 24-hour precipitation event as the inflow design criterion for sediment ponds is based upon Section 515(b)(10)(B) (i) of the Act which requires the Office to assure that additional contributions of stream flow do not exceed applicable Federal law. Under the Clean Water Act, EPA effluent limitations are applicable to coal mining operations, 40 CFR Section 434. According to EPA regulations, treatment facilities to meet such effluent limitations should be constructed to include the volume which would result from a 10-year 24-hour precipitation event.

See also Grim at 241 (1974). To assure a uniform regulatory scheme and enable the regulatory authority to measure compliance with both EPA effluent limitations and OSM standards, the Office has decided that sediment ponds should be designed to control a 10-year 24-hour precipitation event. This should also reduce the regulatory burden on the operator by eliminating confusion between EPA regulations and OSM regulations.

Commenters questioned the requirement that chemical treatment processes be designed by a professional engineer. Commenters specifically questioned the ability of even a few professional engineers to properly design chemical treatment processes. They also noted that EPA does not require that a professional engineer design treatment processes. This Office also determined that designing processes for chemical treatment of water will require special expertise. Accordingly, the Office removed the restriction, thus permitting the operator to use the services of any qualified persons.

Commenters questioned whether qualified operators approved by the regulatory authority should operate chemical treatment processes. Commenters said that approval by the regulatory authority was not necessary. Other commenters were concerned about apparent conflict with recent UMW wage contract agreements. Other commenters said OSM was without statutory authority to require certification of waste-water treatment operators.

The Office has decided to delete the requirement for a qualified person approved by the regulatory authority to operate a treatment process. This additional flexibility should avoid any conflicts with UMW wage contract agreements. It is emphasized, however, that operators have the burden of achieving and maintaining effluent limitations. The operator is therefore responsible for selecting a qualified person to operate a chemical treatment process to meet such limitations.

A few commenters suggested removal of "chemical'' in reference to treatment processes. Commenters said that inclusion of "chemical'' in the regulations would decrease development of alternative methods, because the term "chemical'' excluded other methods which were mechanical, or electrical.

The Office has retained this terminology. Alternative sediment control measures are permitted under Section 816.45 and 816.46. Chemical treatment which may include flocculants is an option chosen by the operator if approved by the regulatory authority. Chemicals used as flocculants include both organic and inorganic compounds that effectively cause the coalescing of individual particles and their resulting increased rate of settling.

816.46(d) Dewatering. This Section of the final regulations requires a non-clogging dewatering device (which can be a principal spillway) to achieve and maintain the required theoretical detention time. The dewatering device and the principal spillway are required to pass the runoff resulting from a 10-year 24-hour precipitation event without use of the emergency spillway. If the design flow passes through the emergency spillways, there is no practical way to detain it. Thus, the detention time would be inadequate. For this reason, flow through the emergency spillway is restricted to precipitation events exceeding the 10-year 24-hour event. Erosion and Sediment Control-Surface Mining in the Eastern United States, Vol. 2 at 55 80 (1976); Hill at 17 (1976); Haan, at 6.1 6.27 (1978).

The sediment pond dewatering device may be designed in a number of ways. One method is to place the inlet of the principal spillway (usually a pipe spillway) at the elevation of the required sediment storage. A second method would be to place the inlet of the principal spillway at an elevation above the required sediment storage elevation. If this latter alternative is selected, sediment cleanout would not be necessary when sediment accumulate to 60 percent of the required sediment volume. However, the reduction in settling storage must not reduce the actual detention time below the theoretical detention time.

816.46(e) Short-circuiting.

This section of the final regulations requires each person who conducts surface mining activities to design, construct and maintain sedimentation ponds to prevent short-circuiting to the extent possible. Short-circuiting is defined as a process which transports sediment through a pond in less than the detention time required for sediment to settle out. Short-circuiting can be caused by improper pond construction, high velocity jet action of incoming water, wave action and inlet and outlet design. Hill at 10 (1976); Kathuria at 84 (1976).

Methods of preventing short-circuiting include baffles, partitioning the pond into chambers, maintaining a length to width ratio of five to one, constructing an energy dissipator at the pond entrance, modifying the inlow, or adding two or more basins in series. Erosion and Sediment Control_Surface Mining in the Eastern United States, at 68 (1976).

See also Ward, at 57 (1977); Janiak, at 59 (1975); Kathuria at 58 (1976).

Commenters said it is impossible to "prevent'' short-circuiting. Therefore the regulations should require only that operators "minimize'' short-circuiting.

{15165}To accommodate this concern while at the same time assure an enforceable standard, the Office has modified the language of the regulation to require that operators prevent short-circuiting to the extent possible. Thus, the burden is on the operator to show that all available methods have been utilized to prevent short-circuiting.

816.46(f) Effluent limitations.

This section of the final regulations provides that the design, construction and maintenance of sedimentation ponds or other control measures will not relieve the person from compliance with applicable effluent limitations contained in 30 CFR 816.42. The additional design flexibility provided to operators is thus coupled with the responsibility to achieve and maintain water quality standards. This minimum requirement is mandated by Section 515(b)(10)(B)(i) of the Act which provides that in no event may this Office authorize the discharge of suspended solids in excess of requirements set by applicable state or Federal law.

See also 121 Cong. Rec. 6201 (1975).

Commenters suggested that operators should be relieved from compliance with effluent limitations if the design criteria for sedimentation ponds were met. Many of the same commenters said there should be minimal or no design criteria for sedimentation ponds.

As stated previously the Office is without authority to relieve operators from compliance with Section 515(b)(10)(B)(L) of the Act. Further, as a result of extensive industry comment, considerable flexibility has been added to the final regulations. For example, pond detention times and sediment storage volume may be lowered upon proper demonstration. In addition, no surface area requirements are included in the design criteria. These modifications have been made because industry has said it should have the flexibility to use alternative means to meet effluent limitations. With this additional flexibility, operators and their engineers will need a guiding limitation to properly design, construct and maintain sediment ponds. Moreover, the Office must be assured that the measures approved by the regulatory authority are effectively controlling the discharge of suspended solids. The effluent limitations provide this essential standard to measure the effectiveness of the sediment control system.

816.46(g) and (i) Principal and emergency spillway.

The final regulations require the design, construction and maintenance of principal and emergency spillways to safely pass a 25-year, 24-hour precipitation event or larger event specified by the regulatory authority. As provided in Section 816.46(d), the principal spillway must dewater the sediment pond at a rate to achieve and maintain the required detention time during a 10-year, 24-hour precipitation event. To assure that the emergency spillway is used only for precipitation events exceeding a 10-year, 24-hour event, the final regulations prohibit any discharge through the emergency spillway during the passage of runoff resulting from such an event and lesser events. The minimum capacity of the emergency spillway should be that required to pass the runoff from a 25-year, 24-hour event less any reduction due to flow in the principal spillway. Erosion and Sediment Control, Vol. 2, 50 69 (1976); Haan, 6.26 6.27 (1978); SCS, Pond 278 313 (1977).

Commenters questioned whether the regulatory authority should specify spillway grades and water velocities. These commenters said that the regulatory authority should assume liability in case of failure. In consideration of these comments, the final regulations permit the operator to select spillway grades and velocities with final approval resting with the regulatory authority. The purpose of the grade and velocity requirements is to provide protection against downstream scouring by released water. This modification recognizes that the operator has the responsibility to design a safe sediment control system and bears liability in the event of failure. Commenters questioned whether only events greater than the 10-year, 24-hour magnitude were permitted to pass over the emergency spillway. Some commenters interpreted the proposed regulations to allow a "lesser precipitation event'' to pass throught the emeregency spillway. The intent at the final regulation is to provide for the detention of any and all events less than or equal to the 10-year, 24-hour event, for the required time period. For example, the emergency spillway may not be located at an elevation where the 5-year, 24-hour precipitation event might be discharged through the spillway. Such action would short-circuit the detention time for the runoff volume of the 10-year, 24-hour precipitation event. Grim at 241 (1974); Erosion and Sediment Control as 65 (1976); Hann at 6.27 (1978).

816.46(h) Sediment removal.

This section of the final regulations provides for the timely maintenace of sediment ponds. A properly designed sediment pond poorly maintained will not achieve water quality standards. Kathuria at 3, 47, 48 (1976). To assure that the sediment pond contains adequate unoccupied sediment volume, sediment must be removed from sediment ponds when the volume of sediment accumulates to 60 percent of the design sediment storage volume. The regulatory authority is authorized to allow sediment removal when the permanent sediment storage is decreased to 40 percent of the total sediment storage volume if additional sediment storage volume is provided above that required for the design sediment storage and theoretical detention time is maintained. These requirements are necessary to assure that the pond has adequate sediment storage as a reserve for future precipitation events inasmuch as runoff events are not entirely predictable. Additionally, the remaining water volume (40 percent of required sediment volume) reduce the velocity of inflows and allows for resuspension of previously settled sediment. When resuspension occurs, the concentration of suspended solids exceed the concentration of the inflow to the pond. Erosion and Sediment Control_Surface Mining, the Eastern United States Vol. 2 at 53 (1976); Hill at 11, 13, 14 (1976); Kathuria, Effectiveness of Surface Mine Sedimentation Ponds, EPA-600/2 76_17 at 3 (1976); Haan at 6.1 6.27 (1978).

Commenters questioned sediment removal requirements. Some commenters want to utilize 100 percent of the storage volume for sediment prior to cleanout while others suggested 70, 80 or another percentage without technical justification.

The Office has decided to retain the sediment removal requirements. Timely removal and disposal of accumulated sediment is extremely important for the proper functioning of a sedimentation pond. This maintenance is too often overlooked. Kathuria at 3, 25, 28, 31 (1976). Actual operational experience show that some sediment ponds fill up with sediment after only one moderate storm. Grim at 106 (1974).

A number of studies have recommended criteria for timely removal of sediment from ponds. One commentator said ponds should be cleaned when storage capacity is reduced to 40 to 50 percent of design capacity. Hill at 11 (1976). Another commentator recommends that ponds should require maintenance when 60 percent full. Grim at 106 See also Erosion and Sediment Control, Vol 2 at 53 (1976). Based upon those studies and to assure effective maintenance of sedimentation ponds, the Office has decided to require removal when sediment accumulation reaches 60 percent.

Commenters requested guidance on the proper disposal of sediment removed from ponds.

Normally, sediment is fine-grained material which has a high water content, and is difficult to handle. After being removed from the pond, sediments are usually placed in a sump or buried during spoil replacement.

700 {15166}816.46(j) Freeboard.

This section of the final regulations requires a one-foot freeboard above the water surface in the pond with the emergency spillway flowing at design depth. The purpose of freeboard is the protection of the embankment against overtopping created by wave action. U.S.D.A. Technical Release No. 60, "Earthdams and Reservoirs,'' Erosion and Sediment Control, Vol. 2 at 65 (1976); SCS (No.) Pond 378 2 (1977); Grim at 241 (1974).

Commenters suggested deleting the freeboard requirements. They said freeboard requirements are specified by MSHA for large ponds, and should not be included in these regulations. Commenters did not provide any information on other methods to prevent overtopping created by wave action. Therefore, the comment was rejected.

816.46(k) Embankment settlement.

This section of the final regulations requires the construction height of the dam to be increased a minimum of five percent over the design height to allow for settlement. The regulatory authority may authorize an exemption from this requirement if it has been demonstrated that the material used and the design will ensure against all settlement. Erosion and Sediment Control at 69 (1976); SCS (No.) Pond 378 2 (1977).

Commenters suggested deletion of Section 816.46(k). The commenters stated that section 816.46(j) and Section 816.46(p) effectively considered the intent of this section by using the term "settled embankment.'' Other commenters suggest that the requirement apply only to the embankment in the immediate vicinity of the emergency spillway. Because settlement of an earth embankment is uncertain, an overage is included for safety. The value of five percent may still be insufficient if the construction methods will not meet the criteria specified for compaction. Soil Conservation Services Practice Standards 378 Pond at 378 2 and 378 7; USDI Bureau of Reclamation at 202 (1960). In such cases the designer should make the appropriate design allowances. The retention of this section is necessary to protect against failure of embankments.

816.46(l) Minimum top width. This section of the final regulations establishes a minimum top width for embankments.

One commenter suggested a narrower width, to avoid the possibility that traffic would use the embankment for a roadway.

Pond design criteria established by the Soil Conservation Service Standard Practice 378 were followed as minimum requirements. The embankment is to provide additional mass for embankment stability. U.S.D.A., Technical Release No. 60, "Earth Dams and Reservoirs,'' p. 5.1, 5.5 (1976); SCS (No.) Pond 378 3 (1977).

816.46(m) Embankment side slopes.

To assure embankment stability, this Section of the final regulations requires the combined upstream and downstream side slopes of the settlement embankment to be not less than 1v:5h with neither steeper than 1v:2h. SCS (No.) Pond 378 2 (1977).

Commenters suggested deletion of side slope criteria as specified 816.46(m). They suggest that an overall safety factor should control side slope gradient. While the embankment stability analysis may allow slopes steeper than 1v:2h, the procedure requires an intensive geologic investigation and testing. The side slope criteria specified for small ponds is standard for most small dams and has proven adequate. The Office considers this alternative design a sounder approach, as many designers do not have the facilities to perform complex investigations. This slope criteria also provides additional protection against erosion due to impacting rain and runoff. Moreover, the slope is not so steep as to impede good surface stabilization by vegetation.

816.46(n) Embankment foundation.

This Section of the final regulations requires the embankment foundation to be cleared of all organic matter with surfaces sloped to no steeper than 1v:1h and the entire foundation surface scarified. SCS (No.) Pond 378 1, 7 (1977); Erosion and Sediment Control, Vol. 2 at 69 (1976).

Commenters suggested deletion of the 1v:1h slope criteria between the foundation and the embankment materials, because such requirements will result in occupation of excessive areas by the foundation. The Office has retained this section of the regulations. The basic concept for this specification is to ensure an adequate seal between the excavated slope of the foundation and the embankment materials, both on the bottom and the side slopes. Steeper slope criteria could result in additional shear at this important junction. The requirement is retained to ensure the creation of an adequate and safe junction of these two materials. SCS (No.) Pond 378 2 (1977).

816.46(o) and (p) Fill material. These Sections of the final regulations require fill material to be free of sod, large roots, and other large vegetative matter, and frozen soil, and in no case may coal processing waste be used. The placing and spreading of fill material must be started at the lowest point of the foundation. The fill must be brought up in horizontal layers of such thickness as is required to facilitate compaction and meet the design requirements of the regulation. SCS (No.) Pond 378 7 (1977); Erosion and Sediment Control, Vol. 2 at 69 (1976).

Commenters requested permission to use coal processing wastes as a fill material in embankment construction. The commenters said coal processing waste could serve as a supplement to embankment materials in areas where soil and rock material were limited. The use of the waste would also allow a desirable use for these products.

Coal processing waste may not be used to construct embankments. Several problems are involved in using coal processing wastes.

See the preamble discussion under coal waste embankments. (Section 816.81 88) and disposal of excess spoil (Section 816.71 74). Due to the difficulty in obtaining the required compaction, thin lift thickness is usually required. Other problems are the potential for spontaneous combustion resulting from the inflammable nature of the waste and the potential for acid and toxic forming material within the waste. For these reasons, coal processing waste was not included in the list of approved construction materials. See also McKenzie, at 3, 4 (1976).

Commenters said authorizing the regulatory authority to specific lift thickness and compaction requirements was beyond the scope of the Act.

Section 515(b)(10)(B)(ii) of the Act provides that sedimentation ponds must be constructed as designed and approved in the reclamation plan. This provision of the Act is intended to assure that the regulatory authority has the authority to require the design of sediment ponds to meet the requirements of the Act. Moreover, Section 510(a) authorizes the regulatory authority to grant, require modification of or deny plans to construct sediment ponds. The Office therefore believes the Act authorizes the regulatory authority to specify lift thickness and compaction requirements for sediment ponds. Such measure are essential for erosion control and stability. SCS (No.) Pond 378 7 (1977).

816.46(q) Embankments greater than 20 feet in height.

This section of the regulations establishes more stringent design standards if the pond embankment is more than 20 feet in height or has a storage volume of 20 acre-feet or more. Under either of these conditions, the combination of principal and emergency spillways must safely discharge the runoff from a 100-year, 24 hour precipitation event or larger event as specified by the regulatory authority.

{15167}The embankment must also be designed with a static safety factor of at least 1.5 or higher safety factor as determined by the regulatory authority. Further, appropriate barriers must be provided to control seepage along conduits that extend through the embankment. Finally, the criteria of the Mine Safety and Health Administration as published in 30 CFR 77.216 must be met. SCS (No.) Pond 378 2 3 (1976); Erosion and Sediment Control, Vol. 2 at 59 69 (1976); SCS Technical Release No. 60, at 5.1 and 5.4. See also preamble discussion to Section 816.72 incorporated herein by reference.

Commenters questioned the need for additional design criteria for large dams.

The general design criteria for principal and emergency spillways, and embankments are drawn from technical literature which distinguishes between large and small sediment ponds. SCS (No.) Pond 378 (1977); Grim at 239 (1974).

To prevent more extensive damage to public health and safety and the environment resulting from a failure of a dam capable of releasing a large volume of water, the Office has decided to impose additional safety requirements for such structures.

816.46(r) Engineering.

This Section of the final regulations requires each pond to be designed and inspected during construction under the supervision of and certified after construction by a registered engineer. This requirement is mandated by Section 515(b)(10) of the Act to assure the proper design and construction of ponds.

A commenter suggested that the pond might be inspected and certified by a qualified person, other than a professional engineer. Another commenter suggested that the regulations include a list of individual items to be inspected and certified. Such areas would include concept, design, construction activities, and inspection certification.

Sedimentation ponds are the key sediment control structures required in the final regulations. In the past many sediment ponds have been poorly designed and constructed. Sometimes ponds were adequately designed but not constructed in accordance with approved plans. This has caused severe erosion and downstream damage, as well as the failure to meet water quality standards. Kathuria at 3, 47, 48 (1976).

Congress was well aware of the importance of the proper design and construction of sediment ponds. To assure that water quality standards were met by surface coal mining and reclamation operations, Congress explicitly required sediment ponds to be certified by a qualified engineer. To implement this congressional directive, the Office has required that each sedimentation pond must be designed and inspected during construction under the supervision of a registered engineer. The operator must have proof of such engineering supervision.

Further, after construction is completed, a registered engineer must certify the sediment pond as conforming to the approved design requirements.

816.46(s) Stabilization of embankment.

This Section of the final regulations requires the entire embankment including surrounding areas disturbed by construction to be stabilized with a vegetative cover or other means. Erosion and Sediment Control, Vol. 2 at 71 (1976); SCS (No.) Pond 378 8 (1977).

After removal of the sediment pond, the area must be regraded and revegetated in accordance with Sections 816.100, 816.105 and 816.111 816.117 unless the pond is approved for postmining land use. In this event, the pond must comply with the requirements for permanent impoundments in Section 816.49 and 816.56.

Commenters suggested modifications to 816.46(s) concerning stabilization of the embankment. One commenter suggested that graded be replaced with "stabilized.'' The Office found this suggestion acceptable because it permits the operator to employ methods other than grading alone. This intent was previously mentioned in the preamble to 816.45(b). The Office believes that temporary vegetation should be used initially, until the permanent vegetation can be established. Permanent vegetation for sedimentation ponds should include the sod-forming grasses and should exclude woody plants.

700 816.46(t) Inspections.

This Section of the final regulations requires all ponds to be examined for structural weakness, erosion and other hazardous conditions in accordance with 30 CFR 77.216 3. With approval of the regulatory authority, dams not meeting the criteria of 30 CFR 77.216 3 must be examined at least four times per year.

Commenters were opposed to weekly inspections for all ponds including those not meeting the size or other criteria in accordance with MSHA requirements 30 CFR 77.2163. According to commenters the small size and brief duration of these impoundments make weekly examinations for structural weakness, erosion, and other hazardous conditions unnecessary.

The Office has decided to modify this Section to allow for inspections on a less frequent basis. Since the ponds are small and have been designed and constructed according to Section 816.46, weekly inspection and subsequent reporting required under MSHA for large impoundments might have no significant value.

816.46(u) Removal of sedimentation ponds.

This Section of the final regulations provides that no pond may be removed until the disturbed area has been restored and the vegetative requirements of Section 816.111 816.117 are met. Additionally, the drainage entering the pond must meet applicable State and Federal water quality requirements for receiving streams.

Commenters questioned when ponds might be removed. Some commenters read the proposed regulations to prohibit sediment pond removal until such time as pond influents met effluent limitations. As discussed more fully in the preamble to Section 816.42 which is incorporated herein by reference, sediment ponds may be removed after revegetation requirements have been met and after pond influent meets applicable State and Federal water quality requirements for receiving streams. I11One commenter said bonds should be retained as protection against operator abandonment of a sedimentation ponds.

The Office believes there is sufficient control within the regulation for the regulatory authority to approve any changes or amendments pertaining to long term control.

Another commenter requested that the landowner should have a role in determining the postmining use of the sedimentation pond. The Office interprets this comment to apply to cases where the landowner is not the operator. Such decisions would have to be mutually agreed upon by the two parties and in accordance with approved postmining land uses.

SECTION 816.47 Hydrologic balance: Discharge structures.

(1) Authority for this Section is found in Sections 102; 201; 501, 503; 504; 515(b)(2), (3), (4), (10), (17), (18), (21), (23) and (24) of the Act.

(2) The requirements of Section 816.47 are intended to minimize erosion from mining operations by requiring control of water runoffs which have high velocities and can scour unprotected channels of receiving streams and cause uncontrolled erosion. Scouring can destroy the aquatic, biotic communities of the receiving stream in the immediate discharge area as a result of physical factors, such as trauma, displacement and destruction of habitat, and it can adversely impact water quality and ecology for large distances downstream as a result of excessive suspended material. (See the discussion in the Final EIS at Part III B) Most biological effects of suspended materials are also physical in character, including asphyxiation by the mechanical blockage of respiration, inhibition of photosynthesis by the obstruction of sunlight, and the irritation of gills, which may render the affected organisms more readily susceptible to infections. Hyne, H.B.N., 1970, pp. 443 450; and Wilber, C.G., 1969, p. 261. The regulations identify devices generally applicable for dissipating water energy and preventing scour. Flexibility is provided for use of any acceptable method or combination of methods that will preclude channel deeping or enlargement.

{15168}(3) Several commenters suggested that the reference to surge ponds be omitted as a means to control discharges from sedimentation ponds. Some of these commenters also suggested that the phrase "where necessary'' be moved to follow immediately after the word "controlled.'' The commenters considered surge ponds to be generally associated with large reservoirs and suggested that discharge control might not be necessary in all cases. Alternatives considered for developing the final rules were: (1) to leave rules as proposed, (2) delete the reference to "surge ponds'', (3) move the words "where necessary'', or, (4) incorporate both of the suggestions in (3) and (4). The second alternative was adopted and the reference to surge ponds was deleted since they are just another form of an energy dissipator and therefore, already included in the listed discharge controls. In addition, a comma was added before the phrase "where necessary'' to clarify that the intent of the regulations is not to require discharge control in all cases but to limit the need for the specific measures and devices to instances where they are necessary.

(4) OSM has further clarified the scope of this provision from proposed Section 816.47 by adding the words "permanent and temporary impoundments, coal processing waste dams and embankments'' after the word "ponds.'' This change is based on provisions of the proposed rules which provided that all these structures be designed and operated in a manner which minimized erosion, adverse affects on fish and wildlife and disturbance of the hydrologic balance (see for example, Sections 816.41(a), 816.49, 816.81 816.93(c), and 816.97). The addition of specific mention in Section 816.47 of impoundmnets and waste dams emphasizes that discharge measures are appropriate means to help achieve the goals of other regulations specifically applicable to these structures.

700 SECTION 816.48 Hydrologic balance: Acid-forming and toxic-forming spoil.

Authority for this Section is found in Sections 102; 201; 501(b); 503; 504; 508(a)(13); and 515(b)(2) (5), (9) (11), (14), (16), (17), (19) and (21) (24) of the Act. Section 816.48 identifies measures for avoiding acid or other toxic mine drainage which might result in degradation of the water quality and ecology of receiving streams (Kinney, 1964; Warner, 1973; Turner, 1958; Striffler, 1973). Biological effects may be acute or chronic in nature, depending upon the type and concentration of toxic pollutants contained in the drainage, the biological species exposed to the pollutants, and the time of exposure.

The methods specified in Section 816.48 are broad in character and cover the practical options known for avoiding acid or other toxic mine drainage. These are supported by the technical literature and State regulations that predate the Act: Alabama: Act 1260, Sec. 4(i), 1971; Regulations of June, 1974, Secs. 6(c), 7.

Illinois: Act 78 1295, July 1975; Regulations of Feb. 1976, Chapter XI, Rule 1106, 1107, Chapter XIII, Rule 1301, 1302.

Louisiana: LRS, Title 30, Secs. 901, 914 (no date); Regulations of Jan. 1978, Rule 10(b-c), 10(f-la,b,c).

Maryland: ACM, Article 66e, 1967; Regulations of Oct. 1973, Rule 08.06.07.

Montana: RCM, Title 50, Chapter 10, 1947; Regulations of (no date), Rule 26 2.10(10) S10310, 1(b-c).

Ohio: ORC, Chapter 1514, Secs. 1513.01 1514.02 (no date); Regulations of Sept. 1977, Rule 1501:13 11 05.

Tennessee: TCA, Secs. 58 1540_58 1564, May 1974; Regulations of Dec. 1975, rule 0400 3 7 .03, 1(b).

Texas: RCST, Article 5920 10 (no date); Regulations of Feb. 1976, Rule 051.07.03.251(x).

Virginia: CV, Chapter 17, Title 45.1, 1950; Regulations of July 1972, Chapter II, Sec. 4, C(1,2). West Virginia: CWV, Article 6, Chapter 20, 1971; Regulations of March 1972, Rule 8D.01(c). 1. Several commenters questioned the provision of Section 816.48(c) which requires that acid- and toxic-forming spoil be placed on impermeable material. The alternative suggested would be to change the last sentence of Section 816.48(c) by deleting "on impermeable material'' and substituting "in such a manner as to be.'' These commenters felt that the primary concerns in handling spoil are water quality, air quality and safety. Further, that material properly compacted as required will be protected from erosion and contact with surface water and will not further oxidize or otherwise deteriorate. Thus, they felt that placing spoil on impermeable material is unnecessary.

The Office did not accept these suggestions. Compaction alone may not be sufficient to prevent acid or toxic waters from slowly seeping through material and making contact with surface or ground water. It is necessary to prevent contamination of these waters, and thus the use of impermeable material is imperative to prevent seepage. (Gasper, 1976, p. 2; Gasper, 1978, pp. 2 4.) 2. A commenter questioned Sections 816.48(a) and (c) as to the appropriateness of relying upon treatment of acid- or toxic-forming spoil as an acceptible independent alternative to spoil burial because of doubts concerning whether the reliability of permanent spoil treatment, under average site conditions, has been sufficiently proven. The Office's review of this matter indicates that the commenter's doubts, on the basis of work on this subject to date, may have some validity. However, use of treatment methodologies is believed to represent a potentially viable alternative in certain situations for destroying the toxicity of spoils. The critical fact which is believed to resolve the issue is that, in Section 515(b)(14) of the Act, Congress clearly permitted either spoil treatment or burial as acceptable disposal methods for preventing water-quality contamination. Furthermore, an absolute ban on use of spoil treatment would preclude development of acceptable treatment methodologies.

Therefore, the Office decided not to exclude the provision allowing for treatment of spoil as an alternative to burial. Of course, the regulatory authority will allow for use of treatment only where the operator can demonstrate that the particular treatment methodology involved will preclude water pollution. (See Sections 102 and 515(b)(22) of the Act.) Use of treatment methods which have no demonstrated history under field conditions relevant to the particular site should not be allowed as an alternative to burial except when the requirements for approval of an experimental practice under Section 785.13 of the final rules are fulfilled.

3. Several commenters questioned the 30-day limitation for completion of burial or treatment of acid- or toxic-forming spoil, suggesting both longer and shorter time periods. Some commenters felt that the 30-day period may not be feasible in all instances nor adequate for environmental protection. In addition it may increase costs and still may not allow enough time to adequately assess the potential problem. However, a total disregard of the requirement or allowing a much longer time for treatment or burial does not meet the requirements of the Act to minimize the potential formation of water pollutants.

{15169}Laboratory leaching tests, conducted under both buffered and unbuffered conditions and designed to relate the acid-producing potential of a rock to its sulfur content, have shown that significant acid production begins within 24 hours of exposure of the rock to water. After 24 hours, the production rate of acidity tends to decrease, but after 20 to 30 days, increases again (Caruccio, 1968, pp. 125 126). The Office believes that the 30-day limitation for covering potentially toxic materials is a reasonable compromise that allows the operator a practical timeframe within which to work and, at the same time, protects against adverse environmental consequences resulting from long-time or unlimited exposure.

A requirement for immediate treatment or burial of material, might result in reduction of disturbance to the hydrologic balance. However, such a requirement would be unduly restrictive and costly and may cause other areas to be disturbed and thus prevent mining of some areas efficiently.

The Office chose to make no changes to the 30-day time requirement, as the provision was deemed necessary to ensure against acid or toxic drainage. However some flexibility for allowing temporary storage, with approval of the regulatory authority, is allowed where compliance with the 30-day period is not feasible. The regulatory authority may also specify a lesser time period where necessary.

4. Several other commenters questioned the reasonableness of requiring spoil burial and treatment only on the basis of the regulatory authority decision as to its potential acidity or toxicity. The suggested alternative would require that the regulatory authority determine the spoil to be, in fact, acid or toxic before burial or treatment.

This alternative was not accepted because it would authorize the regulatory authority to allow acid and toxic releases from spoil, thereby undermining the intent of Congress to preclude water pollution from occurring at all.

700 SECTION 816.49 Hydrologic balance: Permanent and temporary impoundments.

1. The authority for Section 816.49 for the final rules is found in the Act in Sections 102, 201, 501, 502, 504, 515(b)(2), (4), (8), (10), (13), (19), (21), and (24).

2. The technical literature used in developing the performance standards for permanent and temporary impoundments includes that listed under "Hydrologic balance,'' Sections 816.41 816.57, and that listed under "Coal processing waste dams.'' Sections 816.91 816.93, in addition to other works cited below within the preamble.

3. The requirements contained in Section 816.49 set minimum standards for permanent and temporary impoundments. Soil Conservation Service (SCS) documents are incorporated by reference and contain the general design criteria to be used in designing permanent impoundments and all coal processing waste dams and impoundments. These design criteria were selected because these standards are widely used and accepted. The SCS had "built'' 1.7 million ponds as of September 30, 1977, and is presently assisting in the design and construction of about 50,000 ponds per year. In addition SCS has constructed over 8,000 dams under PL 83 566 and PL 504 programs. SCS standards have proven to be workable and are not so restrictive economically as to prohibit construction of small impoundments. Because the final regulations require that coal processing waste dams and impoundments be designed in compliance with this Section, the requirements included in Sections 816.92(c), 816.91(a), 816.91(b), 816.91(c), and 816.91(d) of the proposed rules are now contained in Sections 816.49(d), 816.49(f), 816.49(g), 816.49(h), and 816.49(i), respectively. These requirements are in this Section since they are general requirements that are applicable to all dams and impoundments and are an integral part of the complete scheme suggested by the SCS standards. This Section should be read together with Section 780.25 which contains related permit application requirements, and the reader is referred to the preamble discussion for that Section for elaboration of additional issues relevant to Section 816.49.

4. Paragraph (a) of Section 816.49 contains the specific SCS design criteria that are to be used to design permanent impoundments and itemizes certain conditions that must be met before the impoundments will be permitted.

5. Paragraph (b) refers to the design requirements for sedimentation ponds as the criteria for all other temporary impoundments.

6. Paragraph (c) contains requirements that must be met before excavations that will impound water shall be allowed during or after the mining operations.

7. Paragraphs (d) and (e) provide for slope protection, sediment control, and vegetation of all unprotected areas to be accomplished contemporaneously with construction, in line with standard operational procedures for permanent structures under construction. (Brundage, R.S., 1974, pp. 183 185; Capp, J.P. et al, 1975, p. 44; Capp, J.P. and Gillmore, D.W. 1974, p. 200; Davidson, W.H., 1974, pp. 186 188; Dean, K.C. and Havens, R., 1972, pp. 450 457; James, A.L., 1966, p. 157; Leroy, J.C., 1972, pp. 441 415; Martin, J.F., 1974, pp. 27 28; USMESA, 1975, pp. 7.50 7.58; USSCS, 1974, pp. 19 29. See also ASCE, 1977, Colgate, J.L. et al, 1973; Ramsey, J.P., 1970; Riley, C.V. and Rinier, J.A., 1972.) 8. Paragraph (f) adopts inspection requirements by reference to 30 CFR 77.216 3. See responses to comments contained in Paragraphs (12)(1), (m), and (n) below for more detailed discussion of inspection requirements. An inspection program is necessary to discern any changes which could indicate problems developing with structures. (ASCE, 1974, p. 5; USMESA, 1975, 9.7 9.11. Sherard, et al, 1963, pp. 563 565; W. Va. Dept. of Nat. Resources (no date). See also Comptroller General of the U.S. (acting), 1977.) 9. Paragraph (g) requires maintenance of dams, which is essential to assure their continued stability and proper performance in accordance with the engineering and environmental standards. (Canada DEMR, 1977, p. 93; USBR, 1973, p. 521. See also ASCE 1973; Sherard, et al, 1963; USMESA, 1975; W. Va. Dept. of Nat. Resources, (no date).) 10. Paragraph (h) contains requirements for an initial certification of construction and an annual certification thereafter. This requirement is in compliance with current MSHA requirements. (Canada DEMR, 1977, pp. 93 95; USBR, 1973, pp. 521 523; U.S. Code of Federal Regulations, 30 CFR 77, 216 3; USMESA, 1975, pp. 9.7 9.26. See also ASCE, 1973; Compt, Gen of the U.S. 1977; Sherrard, et al., 1963; W. Va. Dept. of Nat. Resources (no date).) 11. Paragraph (i) contains procedures that must be followed in modifying structures that have been constructed.

12. Response to specific comments on the proposed rules and regulations are: a. One commenter recommended that Section 816.49(a)(1), which requires that discharges from impoundments must not degrade the quality of receiving waters below the water quality standards under applicable State and Federal laws, be eliminated because this duplicates requirements under the Clean Water Act and State regulations. This recommendation was not accepted and this subsection is retained in the final rules in the same form it was proposed. The Office must, under the Act, insure that water quality standards are met. Retaining this subsection gives the regulatory authority the right to review plans and inspect the mining operations for conformance to water quality standards. The Office believes that emphasis of some important requirements may be desirable when different agencies are regulating toward a common goal, such as improving water quality and protecting environmental values.

700 {15170}b. Another commenter suggested that Section 816.49(a)(1), (2), (3) and (4) contain some general requirements that are impossible with which to comply and that specific terms such as "adequate safety'', "adjacent'', and "surrounding'' should be further defined. The terms used are common usage and these four subsections as adopted have not been significantly changed from the version proposed. These four paragraphs contain general requirements that are to be considered and addressed before permanent impoundments will be allowed on the mine plan area. The Office believes the intent of the language is sufficiently clear to enable operators, regulators and the public to meet their obligations and perform their intended functions under the Act. If further definitions are needed for a specific State, they can be included in the State program for that State.

c. Another commenter recommended that Section 816.49(a)(2) be expanded to state that the design high-water level in impoundments must be below the level of any tile drainage system in the vicinity, and that the impoundments may not affect seasonal variations in water tables in underground agriculture soils. This recommendation was not incorporated in Section 816.49(a)(2) because the Office felt the adverse effects with which the commenter was concerned were adequately covered by other provisions pertaining to the protection of the hydrologic balance, including Sections 816.41, 816.49(a)(4), 816.51, and 816.54 of these final rules.

d. Another commenter stated that the Soil Conservation Service's practice Standard 378 is not the same for each State and that Technical Release No. 60 is too detailed to be used. This commenter recommended that minimum design requirements be developed and included in the final rules rather than incorporating by reference the SCS design criteria. In developing the final rules three alternatives were considered: (i) Incorporate by reference SCS design criteria for dams and impoundments as presented in Section 816.49(a)(5) of the proposed regulations; (ii) Modify the proposed rules to incorporate by reference the current State SCS Standard rather than the National 378 Standard for "Ponds''; (iii) Develop design criteria and include the criteria in the final rules and regulations rather than incorporating by reference SCS design criteria.

The final rules and regulations were developed using the first alternative by incorporating by reference Technical Release No. 60 and the National 378 Standard as contained in the proposed rules. The design criteria were incorporated by reference because these standards are widely used and accepted.

The alternative to refer to the current State SCS 378 Standard rather than the National 378 Standard was rejected because the design criteria required for smaller embankments and impoundments as contained in the National SCS 378 Standard are adequate for national application. Requiring adherence to separate SCS 378 Standards for each State would cause confusion in applying different standards and would present logistical problems in distributing and maintaining the current standards while not providing any additional critical design criteria not contained in the National 378 Standard. In addition, since each State Standard is at least as stringent as the National 378 Standard, a State could adopt the State Standard for its regulatory program as an alternative standard approved as past of the State program under Subchapter C of these final rules. (See Section 731.13_the "State window.'') The alternative to develop specific design criteria and include them in the final rules and regulations was rejected because this would add considerable volume to the regulations with no appreciable benefit, since the SCS design criteria have proven to be adequate and acceptable design criteria for the size and type of dams and embankments anticipated in operations covered by these final rules.

700 (e) A few commenters recommended that design criteria be developed for different classes of dams and embankments which would allow smaller, low hazard structures to be designed to comply with less rigid design criteria. The final rules and regulations, which contain the incorporation by reference of SCS design criteria, provide for different design criteria for different classes of structures, which is appropriate, giving consideration to the risks.

(f) One commenter stated that the Soil Conservation Service does not publish changes to their design criteria in the Federal Register and that this could be a potential problem in incorporating by reference the SCS design criteria. SCS has agreed to inform the Office of any revisions issued to the design criteria referenced in Section 816.49(a)(5) and the Office intends to publish in the Federal Register the title and date of those revisions to the referenced design criteria which are to become standards under this Section.

(g) Commenters recommended that impoundments should be prohibited on steep slopes. This recommendation was not accepted because the design requirements contained in this Section are considered adequate to evaluate the acceptability of impoundments on steep slopes. In some cases, however, it will be impossible to design an impoundment on a steep slope and meet the design requirements in the referenced SCS design standards contained in Section 816.49(a)(5). In such circumstances, no impoundment will be permitted.

(h) Another commenter questioned whether fish and wildlife structures were allowed under the criteria contained in this Section. The statement contained in the SCS design criteria, which are incorporated by reference in this Section, includes multiple uses, one of which is fish and wildlife.

(i) One commenter recommended that impoundments be allowed to be retained in final cut areas of area stripping operations. This recommendation was accepted and Section 816.49(c) was added to the final rules to contain the specific requirements that must be met in order to retain excavations that will impound water during or after the mining operation. These excavated slopes shall be stable and not pose a safety hazard and shall meet the basic requirements of the Act concerning the elimination of highwalls.

(j) A comment was accepted which recommended that "structures'' be changed to "measures'' in Section 816.49(d) (proposed Section 816.92(c)) because there are other effective ways to control sediment at a construction site besides structures. Structures will be required in many instances, under Section 816.42, which applies to these impoundments.

(k) One comment, recommending that a requirement to establish vegetation on permanent and temporary impoundments be included in Section 816.49, was also accepted. Section 816.49(e) was added to the final rules. Vegetative and revegetative requirements were contained in proposed Sections 816.106 and 816.111 816.117. Adding the cross reference to these Sections in the final rules does not impose any additional requirements, but only assures that the requirements are not overlooked.

(l) Commenters suggested editorial changes to proposed 816.91(a); i.e., change reference of 30 CFR 77.316 3 and Mine Safety and Health Review Commission to 30 CFR 77.216 3 and Mine Safety and Health Administration respectively. These references have been corrected since the original citation was a typographical error which was not misleading, since the reason for the cross reference was clear, and since the substance of the material was set forth elsewhere in the proposed rules and preamble to the proposed rules. The entire paragraph was moved to 816.49(f) in the final rules.

{15171}(m) A commenter suggested further clarification of construction inspection requirements and the need to insure that construction is properly controlled and inspected. The commenter also expressed general concerns about applicable regulations for dams that are not constructed of coal processing waste and suggested reordering of topics for clarity. These suggestions were accepted, and inspection requirements originally proposed in Section 816.91(a) were clarified and moved to Section 816.49(f) because adequate inspection requirements are necessary for all dams and impoundments. Special design requirements for coal processing waste dams have been clarified in the final rules by modifications to Sections 816.91 816.93.

(n) Commenters expressed a desire to delete requirements for periodic inspections of smaller dams of certain size criteria and the inspection requirements by registered professional engineers. The final rules were changed to delete the 7-day inspection requirements for smaller dams that do not meet the size or other criteria contained in MSHA regulations. All dams and impoundments require a certification, immediately after construction and annually thereafter, that the structure has been constructed and maintained to comply with the design standards. This certification will require that an inspection of the structure be conducted before it can be certified. OSM believes that a single certification will adequately cover the inspection requirements for those structures not meeting the size or other criteria contained in MSHA regulations because of the reduced risk they pose to the environment, health and safety.

(o) A commenter suggested that a reference to "person'' in Section 816.49(i) be defined (proposed Section 816.91(d)). The final rules were reworded for clarity to eliminate the reference. 700 SECTION 816.50 Hydrologic balance: Ground water protection.

(1) Section 816.50 is adopted to protect the ground water portion of the hydrologic balance from surface mining activities under the authority of Sections 102, 201(c), 501(b), 503, 504, 507(b), 508(a), 510(b)(3), 515(b), and 517 of the Act. The uncontrolled discharge of drainage from coal mining operations has been the documented source of massive adverse impacts upon water quality and the ecology of surface and ground waters, as is discussed in detail in Sections B III 4(a)(2), (b), B III 4(a)(3) and B III 4(b) of the Final Environmental Impact Statement accompanying these regulations. Control over discharges from affected areas to ground water is possible, through the investigation of the potential impacts of the mining operation in the permit application review process, leading to the proper location, design, construction, maintenance, utilization, and reclamation of pits, cuts, auger holes, other excavations and spoil and waste disposal facilities.

(2) These controls are to be instituted, first, with respect to backfilling operations under Section 816.50(a). Implementation of Section 816.50(a) will require careful adherence to the requirements of Sections 816.48 and 816.100 816.105, which also regulate backfilling. In particular, the provisions of Sections 816.48 and 816.103, related to handling of acid-forming and toxic-forming spoil, are critical to the success of efforts to protect ground water.

As proposed, Section 816.50(a) would have regulated backfilling to protect the ground water system "offsite,'' a term that was nowhere expressely defined and, therefore, subject to ambiguous interpretation. To guard against that possibility, the final version of 816.50(a) provides for protection against adverse effects of backfilling on ground water systems outside the permit area, with the latter term being specifically defined at 30 CFR 701.5. It should be noted, however, that this does not mean that ground water systems anywhere within a permit area may be allowed to be polluted by surface mining activities. Rather 816.50(a) requires that, as a minimum, protection be afforded to ground water outside the permit area, which will ordinarily also require protection of ground water inside the permit area so as to preclude the drainage of pollutants to adjacent areas.

(3) The second means by which this section will protect ground water is to require careful regulation of mining-related earth excavation and other disturbances to land under Section 816.50(b). Important complements to this provision are Sections 816.13 816.15, 816.53 and 816.55.

(4) Technical literature utilized as support for Sections 816.50 and 816.51 as cited in the general preamble to Sections 816.41 816.57 includes: Dollhopf et al. 1977, pp. 108 128; Feder, et al. 1976, pp. 86 93; Feder, et al. 1977, pp. 173 179; Grim and Hill, 1974. pp. 2, 24; Hardaway and Kimball, 1976, 29 p.; Hardaway and Kimball, 1978, 19 p.; Hardaway et al., 1977b. pp. 61 135; Hamilton and Wilson, 1977, 156 p.; McWhorter et al., 1977, 357 p.; Shumate et al., 1971, 81 p.; Pagenkopf et al., 1977, vol. 3, No. 2, p. 107 126; National Academy of Sciences, 1974, 198 p.; Pennington, 1975 pp. 170 178; Pietz et al., 1974, pp. 124 144; Rahn, 1976, 108 p.; Rogowski et al., 1977, vol. 6, No. 3, pp. 237 244; U.S. Environmental Protection Agency, 1977c, 21 p.; Van Voast, 1974. 24 p.; and Van Voast and Hedges, 1975, 31 p.

700 (5) As proposed, Section 816.50(c) authorizes the regulatory authority to require the submission of data of various types. Upon the review of comments on this Section the Office was decided that the provision was redundant of the permit application requirements (Sections 779.14 779.15, 780.21) and the monitoring regulation (Section 816.52) and therefore, the Office has deleted it from the final rules.

SECTION 816.51 Hydrologic balance: Protection of ground water recharge capacity.

(1) The impacts of surface mining activities on ground water may vary considerably, depending on the scope and extent of aquifers involved, water infiltration rate, the porosity and permeability of the excavated overburden, the compaction of the backfill in disturbed areas, whether mining operations are conducted above or below the water table, and the extent of ground water use in the recharge areas.

(2) Section 816.51 is adopted to protect the recharge capacity of aquifers in areas affected by surface mining activities.

Uncontrolled mining and reclamation practices can result in significant degradation of infiltration rates, decline in ground water levels and flow from springs, and changes in waterbearing characteristics within any aquifer recharge area.

Recharge capacity is defined in Section 701.5 and conceptually is the ability of the soil and rock materials to receive water, store it for a variable period of time and slowly release it, usually to lower elevation streams, water bodies or in response to well pumpage. The movement of surface water (precipitation and surface flow) to recharge the ground water zone is controlled primarily by the infiltration characteristics of the surface soil (Chow, V. T. 1964. Handbook of applied hydrology, McGraw-Hill, Chapters 12 and 13). When mining disturbs the surface soil, it changes the infiltration characteristics, primarily ambient soil moisture, structure and porosity. If the infiltration is reduced by compaction in backfilling, the soil pores are clogged from fine sediment, the rate of infiltration is reduced and thus recharge is reduced. Water levels and spring flows then will be adversely affected. The opposite can occur, if the waterbearing characteristics, such as porosity and transmission, are improved. Thus, careful consideration in mining and reclamation must be given, for example, to proper location of ponds, backfilling techniques and diversions in local recharge areas to ground water.

{15172}(3) Legal authority for this Section is found in Sections 102, 201(c), 501(b), 503, 504, 507(b), 508(a), 515(b), and 517 of the Act.

(4) The primary protection afforded recharge capacity under the Act is provided for in Section 515(b)(10)(D) of the list, requiring the postmining restoration of the approximate premining recharge capacity. As proposed, however, Section 816.51 contained an ambiguity, for although the main text of the Section required restoration to "approximate'' premining levels, Section 816.51(c) would have required restoration to a recharge capacity "at least equal'' to that prior to mining. Many commenters argued that Section 816.51(c) be revised to more closely follow the language of Section 515 (b)(10)(D) of the Act. To resolve the ambiguity in the proposed rule and in response to those comments, Section 816.51(c) was changed in the final rule to require "a rate of recharge that approximates the premining recharge rate.'' (5) One commenter claimed that the restoration of recharge is impossible on certain "scoria deposit'' lands in the West. To the extent, however, that the Act requires restoration (e.g. to approximate pre-mining levels) as noted in above discussion, this comment could not be accepted as a basis of change to the regulations.

(6) Several commenters suggested that the regulatory authority be afforded discretion under Section 816.51 to waive the requirement of restoration to approximate premining recharge capacity on a case-by-case basis. These commenters, however, provided no data to support such a waiver, nor did they suggest specific criteria by which waivers could be assessed to avoid inconsistency in administration of the Section. Further, adoption of such a broad waiver provision would be tantamount to a general variance clause, which was not contemplated as available in implementation of Section 515(b)(10)(D) of the Act, for there is no indication in either the language of that Section or the legislative history that Congress desired that broad exemptions be afforded to the requirement of restoration of recharge capacity. Moreover, since restoration is required to "approximate'' premining levels, the regulatory authority is afforded sufficient discretion to account for local physical characteristics in administration of Section 816.51 without the need for a waiver clause. As a result, the Office declined to accept these comments.

(7) One commenter suggested that the term "rate of recharge'' in Section 816.51(c) be specifically defined. Such a definition was believed unnecessary because the meaning of "capacity'', as used in the context of "recharge capacity'', implied the rate or the ability to receive, store and transmit water.

700 SECTION 816.52 Hydrologic balance: Surface and ground water monitoring.

TA. Section 816.52 is adopted to require persons conducting surface mining activities to conduct surface and ground water monitoring, under the authority of Sections 102, 201, 501, 503, 504, 506, 507, 508, 509, 510, 515, and 517 of the Act. Because mining can adversely impact upon water resources in many ways (Curtis, 1974, pp. 92 97; Dyer and Curtis, 1977, p. 13; Simpson, 1977, p. 8; USDA, 1973, pp. 5 8; Grubb and Ruyder, 1972, pp. 16 58; U.S. DOI, 1967, pp. 50 64; Striffler, 1973, pp. 180 186; Turner, 1958, p. 2; Kinney, 1964, p. 27; and Warner, 1973, p. 11) monitoring is essential to provide sufficient data for evaluating the effectiveness of control technologies employed, forewarn against the development of adverse effects not identified in the permit application stage, ensure that adverse effects are not inadvertently created, and evaluate whether activities are being conducted in compliance with applicable requirements of the Act, this Chapter, the regulatory program, and permit conditions.

The basis and purpose of Section 816.52 was, in general, explained at 43 FR 41751 41752 (Sept. 18, 1978). The foundation for the monitoring requirements will be the specific requirements imposed by the regulatory authority in approval of the plan submitted under 30 CFR 780.21(b)(4). B. (1) Section 816.52(a) specifies minimum requirements for ground water monitoring programs. Under Section 816.52(a)(1), ground water levels, infiltration rates, subsurface flow and storage characteristics, and ground water quality are to be monitored as required by the regulatory authority. Thus, ground water monitoring will be required at those sites where there is a possibility of disruption or degradation of the ground water system.

Ground water systems can be extremely complicated; consequently, to design a monitoring program of value, it is essential that information be available on the basic geohydrological characteristics of potentially impacted ground waters. (Hardaway, 1978; Chow, V.T., 1964, pp. 4 23.) Additionally, sampling procedures must be carefully developed to obtain representative samples. Installation of sampling and observation wells may be the only feasible alternative for monitoring many of the potentially impacted aquifers. (See the preamble discussion to Sections 779.13 779.15.) Establishment of baseline conditions is also essential requiring sampling in advance of mining (See Sections 507, 508, SMCRA.) (2) Section 816.52(a)(1), as adopted, was modified in the final rule to specify that monitoring should be adequate to evaluate surface mining activities impacts on water in "the mine plan area,'' which is a defined term under the regulations, while "mine site' is not.

(3) Commenters suggested that specific limits be placed on the amount of well drilling and testing which should be required in connection with Section 816.52(a). While agreeing that monitoring must be adequate for its intended purposes, these commenters believed that no more than two wells or ten tests (including wells) per 50 acres under permit is needed. This was rejected, since it would place unnecessary constraints on the regulatory authority to determine, through monitoring, that there is minimal change to the hydrologic balance according to collection of representative data. (See the preamble discussion to Sections 770.5 and 779.13 779.15.) (4) Section 816.52(a)(2) specifies circumstances when ground water monitoring is mandatory and is intended to fulfill the specific requirements of Section 517(b)(2) of the Act. In those circumstances, monitoring should include water, mineralogical, and chemical analyses to include both changes resulting from mining and to predict how mining and reclamation may need to be revised. (See the preamble discussion to Sections 770.5 and 779.13 779.15.) (5) Sections 816.52(a)(1) (2), as proposed, were objected to as requiring monitoring in some circumstances where ground water was either unlikely to be impacted, where ground water is not ecologically significant, or will not likely be useful for public or private consumption. In response to these comments, Section 816.52(a)(2) has been reworded to more closely track the language of the Act, with respect to situations where ground water monitoring must be conducted, leaving to the regulatory authority discretion under Section 816.52(a)(1) to require monitoring in other circumstances.

(6) Section 816.52(a)(3) is adopted to provide the regulatory authority with the power to require specialized monitoring, if necessary, for evaluation of surface mining activities compliance with the requirements of Sections 816.50 and 816.51. {15173}Two commenters proposed revisions to Section 816.52(a)(3), to indicate that the additional hydrologic tests which may be required in this Section be conducted after reclamation. This was rejected as redundant. The existing wording allows for additional tests to be required either during or after mining and reclamation.

(7) Four commenters suggested rewording Section 816.52(a)(3) by deleting the words "specified and.'' The commenters felt that any additional hydrologic tests required by the regulatory authority should be planned by the operator, rather than specified by the regulatory authority. This alternative was rejected, since the regulatory authority may need to specify specific tests to be conducted, or it could specify that the operator develop a plan for additional testing which would have to meet regulatory authority approval. Moreover, this wording puts the burden on the regulatory authority to specify additional testing, if it decides that either the initial plan was inadequate or based on results obtained from the tests, that more testing is necessary.

(8) One commenter expressed concern as to whether or not there are enough qualified technical personnel available to meet the potential work load which may result from the requirements of this Section and other parts of the regulations. The Office feels that there presently are enough qualified people to meet this predicted demand, and, in any event, the demand will be filled quickly.

700 (9) One commenter proposed that the requirement for determining post mining recharge capacity be deleted, due to the expense and difficulty of those tests. This comment was rejected, however, since Section 515(b)(10)(D) of the Act requires restoration of the recharge capacity of mined areas to the approximate premining condition. It is noted, however, that as interpreted in Section 816.51, the restoration requirement applies to the overall mine area, not necessarily to fills or coal processing waste and refuse disposal sites. Thus, highly detailed monitoring, as apparently assumed by the commenter, may not ordinarily be required.

C. (1) Section 816.52(b) establishes minimum requirements for surface water monitoring. Under Section 816.52(b)(1), the regulatory authority is to specify the nature of data, frequency of collection, and reporting requirements, subject to the standards of Section 816.52(b)(l)(i) (iii). The provision for regulatory authority specification of these items was shifted from Section 816.52(b)(2) in the proposed rule, to eliminate confusion that the proposed rule may have created as to what phases of mining and reclamation the regulatory authority's specification power and duty applies.

(2) Surface water monitoring requirements should be tailored to the wastewater and available treatment facilities. Wastewaters with highly variable concentrations and quantities of potential contaminants must be sampled more frequently than discharges which have relatively constant or low levels of contaminants. If adequately designed, operated, and maintained, settling ponds and automatic neutralization facilities (for acid or toxic mine drainage) will assure that the treated effluent will be relatively constant in character and contain low levels of contaminants, therefore, requiring a minimum of monitoring to document compliance with the permit limitations.

(3) Four comments were received proposing that further minimum criteria be delineated for the collection of hydrologic information. These criteria were not developed, because of the impossibility of accounting in national rules for many variables that would have to be considered, including the proximity and utility of historic data, knowledge about the characteristics of a site, and the availability and applicability of hydrologic models that might be used to simulate information.

For example, in areas where there are extensive historic hydrologic data available and/or where a regionalized hydrologic model is applicable, pre-mine measurements might be aimed only at detecting anamolous conditions, while in an area with little available data, extensive measurements might be required. These decisions are left to the regulatory authority. A major Federal interagency effort has been underway, for some time to develop guidelines for acquiring water data information. Two documents from this effort will soon be offered as guides to help regulatory authorities: (a) U.S. Geological Survey. 1979. "Water Quality Data Needs for Small Watersheds.'' Office of Water Data Coordination, Federal Interagency Work Group on Water Quality Data Needs for Small Watersheds, Reston, VA (in final preparation; to be released in 1979).

(b) U.S. Geological Survey. 1979. "National Handbook of Recommended Methods for Water Data Aquisition'' Office of Water Data Coordination, Reston, VA (Chapter 3 on Sediment, Chapter 5 on Chemical and Physical Quality of Water, and Chapter 7 on Basin Characteristics were completed in 1977, and seven other chapters are in various stages of completion and will be published by the end of 1979).

(4) Several commenters felt that Section 816.52(b) should be modified so that it required only monitoring under NPDES permitting. These commenters cited Missouri and a few other States where non-point source discharge monitoring is required under NPDES permits. The Office rejected this alternative, first, because national regulation of non-point source discharges from coal mines does not occur under the NPDES permit program administered under the Clean Water Act, 33 U.S.C. Section 1341 1342, but rather under particular provisions of Missouri and a few other State's laws. The requirements for NPDES permits under the Clean Water Act simply do not, as a matter of nationwide Federal law, apply to non-point sources. Furthermore, EPA's regulation establishing effluent limitations for discharges from surface coal mines and, therefore, monitoring of those discharges under Section 301(b)(1)(A) and 304 of the Clean Water Act (33 U.S.C. Section 1211(b)(1)(A), 1314), are expressly limited to point source discharges and only during the active phase of mining. See 40 CFR Part 434 (1976).

The Office has carefully coordinated Section 816.52 with monitoring requirements imposed on a national basis under the NPDES system. The Office does not feel that this Section creates substantial duplication or additional reporting and monitoring requirements from those required under NPDES permits. As Section 816.52(b)(1)(iii) indicates, the requirements of this paragraph can be ordinarily satisfied with regard to point-sources by compliance with the monitoring and reporting requirements of the Act permittee's NPDES permit. The only additional requirement imposed by Section 816.52 in most cases with respect to point sources will be for the permittee to notify the regulatory authority of the location of filing of the NPDES self-monitoring report. Of course, there will be additional monitoring for non-point sources as required by Sections 515(b)(10) and 517 of the Act. Lastly, as indicated above, the requirements of Section 816.52(b) can ordinarily be satisfied, for discharges subject to NPDES permits, by compliance with NPDES monitoring and reporting requirements. Therefore, to the extent that Section 816.52 arguably covers the same discharges as under NPDES permits, it complies with the requirement of Section 201(c)(12) of the Act that the Office "cooperate with other Federal agencies . . . to minimize duplication.'' 700 (5) One commenter felt that the regulations appeared to limit monitoring to automated sampling devices. This is not true; Section 816.52 merely requires that sampling be adequate to meet approval of the regulatory authority and does not necessarily exclude manual sampling.

{15174}(6) One commenter felt that the requirement of Section 816.52(b)(1)(i) with regard to water quantity monitoring should be deleted as it was too burdensome. The Office rejected this proposal, since information on quantity of water is expressly required by Sections 507(b)(11), 508(a)(13)(c) and 517(b)(2) of the Act. Further, Sections 510(b)(3) and 515(b)(10) require that the regulatory authority ensure that operations are designed and conducted to "prevent material damage to the hydrologic balance.'' "Hydrologic balance'' is defined to include water quantity (see Sec. 701.5 of the regulations).

(7) Three commenters felt that when the analyses for water quality constituents (parameters) are found to be at insignificant concentrations, then those analyses be discontinued, and suggested that this be specified in 816.52(b)(1), to allow a decrease in the monitoring of constituents that consistently meet the effluent limitations. The Office rejected this proposal as redundant. The language of the final rule at 816.52(b)(1) is sufficiently flexible for the regulatory authority to revise the monitoring program to fit such situations.

(8) Several commenters suggested several alternatives of limits for monitoring requirements in Sections 816.52(b) and 817.52(b). These alternatives suggested that water quantity measurement requirements be deleted, require a demonstration that the infiltration capacity has been restored, and specify the limits on the amount of change that will be allowed to the streamflow regime.

These alternatives were rejected, because Section 515(b)(10) of the Act requires that the disturbance to the prevailing hydrologic balance (quantity and quality) be minimized and Section 517(b)(2)(A) of the Act specifically requires surface water monitoring where mining overlies potentially significant aquifers. The regulatory authority may require that a discharge magnitude accompany certain water quality samples to evaluate the quantitative impact on parts of the hydrologic system. The return of infiltration to "approximate premine recharge capacity'' is believed to be a sufficient requirement, because recharge rates cannot be restored unless premine infiltration rates are also approached. It would also be very difficult to set more specific requirements for allowed variations, because of site and related hydrologic differences. The regulatory authority must determine the details of monitoring requirements on a case-by-case basis.

(9) Three commenters felt that the frequency of monitoring reports specified in proposed Sections 816.52 (b)(1)(iii) and 816.52(b)(1)(iv) and in the corollary subsections of Section 817.52 were not consistent. The Office agreed, and revised the final rules, by combining the Sections into a single Paragraph for Sections 816.52(b)(1)(iii) and 817.52(b)(1)(iii). (10) Three commenters suggested that Sections 816.52(b)(ii) (iii) and 817.52(b)(ii) (iii) be modified to more closely align these Sections with EPA reporting requirements under the NPDES system. The Office concurred with the commenters and has appropriately changed these subsections to specify reporting of violation within five days, reporting of violations by a second statement of analytical results, and a general quarterly reporting period.

(11) Under 816.52(b)(2), monitoring is required to continue throughout the reclamation period. This Section was revised from the proposed rule, to account for modifications made to Section 816.42(a) in response to comments. Those comments objected to the provision of Section 816.42(a), as proposed, which could have been read to preclude bond releases and removal of sediment ponds by reference to Section 816.52(b), unless drainage from a reclaimed area met the effluent limitations of Section 816.42(a). As explained in more detail in the preamble to Section 816.42(a), this was not the Office's intention. Section 816.42(a), as adopted, specifies that such drainage meet applicable stream water quality standards, not Section 816.42(a)'s effluent limits.

Section 816.52(b)(2) has been modified, first, to provide that monitoring data collected by the operator may be used for determining bond releases under Section 816.42(a), but leaves to the regulatory authority discretion as to whether other data, collected by State or Federal agencies, should be used instead, recognizing that stream sampling is a different problem than monitoring of discharges only. In addition, Section 816.52(b)(2) was revised to delete the phrase "and for determining when the requirements of this Section are met,'' as Section 816.42(a), not Section 816.52(b), establishes the relevant substantiative bond release criteria in the final rules.

(12) In 43 FR 41751, September 18, 1978, a previous comment suggested that all operators be required to conduct continuous total suspended solids/sediment monitoring in the first, second, and third streams downstream from discharges from the areas disturbed by a particular operation. Upon further consideration of this alternative the Office has concluded that, if effluent guidelines are met, if the hydrologic balance is restored on the mine plan area, and all reclamation completed, there is no reason to expect that significant adverse changes will be found in downstream sediment loads at great distances from the mine site. The alternative suggestion has, therefore, been rejected as a general requirement for all mining operations.

(13) Two commenters believed that the word "monitoring'' in Sections 816.52(b)(3) and 817.52(b)(3) referred to continuous, automated monitoring devices. The intent is that the monitoring requirements are to be determined by the regulatory authority on a case-by-case basis. The need for continuous automated monitoring, therefore, need not be required in all cases.

700 SECTION 816.53 Hydrologic balance: Transfer of wells.

(1) Under Sections 512(a) and 515(b)(10) of the Act, the use of drill or bore holes as water wells is to be closely regulated in both coal exploration and surface mining activities, to prevent ground water pollution, as is explained in the preamble to Section 816.13 816.15 and portions of the final EIS corresponding to these Sections. The uncontrolled use of wells in coal mining can be a source of serious ground water contamination, by creating cross-connection between polluted surface or ground water and previously uncontaminated aquifers.

On the other hand, these wells also can be used, subject to careful regulatory controls, as sources of water for domestic and public consumption by occupants of the surface lands on which these wells are located. Use of wells already created during mining operations is preferable to construction of new and additional wells by the surface occupant, both because of the additional expense involved and also the danger that a new well will shift ground water drainage patterns in a way unforeseen during the operator's careful process of formulating and implementing a reclamation plan to protect ground water resources (See 30 CFR 780.21).

To allow for the continued use of water wells used in coal exploration and surface mining activities, the Office has adopted Section 816.53 in the final rules, under authority of Sections 102, 201(c), 501(b), 814, 503, 507(b), 508(a), 510(b)(3), 512(a), 515(b), and 517 of the Act. Section 816.53 will provide for satisfactory accommodation between first, the requirements of the Act that wells used in coal exploration and surface mining activities be properly constructed, operated, and reclaimed to protect ground water from pollution and, second, the interests of the public in having ground water made usefully available.

(2) Under Section 816.53(a) the regulatory authority may approve the transfer from the operator to the owner of surface lands, of exploratory or monitoring wells, for use by the surface owner or leasee thereof as water wells. Approval of a well transfer must be supported by a written transfer request. Under Section 816.53(b) primary responsibility for any liability for damages, eventual plugging, and compliance with Section 816.13 816.15 passes to the surface owner upon approval of the transfer. Under Section 816.53(c) the permittee remains secondarily liable for those obligations until release of the applicable performance bond.

{15175}(3) The Office recognizes that standards for the construction of potable water supply wells generally require construction practices which assure protection from surface pollution. Since wells intended for potable supply uses are usually subject to regulation by local public health agencies, it is expected that the regulatory authority may require certification from the local government agency, before the well transfer is approved for potable supply use. Stock and irrigation uses, however, when well yields are sufficient for these purposes, usually do not require local agency inspection and approval.

(4) As proposed, Sections 816.53 and 817.53 contain no provision for cutting off the transferor/operator's secondary liability for assuring compliance with the requirements of the Act. Several commenters objected to this, indicating that perpetual liability would be so onerous as to preclude the transfer of good wells. In response to these comments, the Office considered three substantial alternatives.

First, it was considered whether to exempt the transferor/operator from any secondary liability. This alternative was rejected, however, because under Section 515(b)(10)(A)(iii) of the Act, the industry is charged with responsibility for protection of the hydrologic balance, in the first instance, both during and after mining operations. Thus, it is believed that Congress intended that the industry assume ultimate responsibility for assuring that wells used in coal mining do not result in ground water pollution. Moreover, it is the industry which will have both the resources and expertise to insure that wells are satisfactorily abandoned, if no longer needed, or if their use is leading to adverse effects on ground water.

On the other hand, the Office recognizes that Congress also expected that the operator's obligation to protect ground water was not one of absolute perpetuity, inasmuch as performance bonds are releasable under Section 519 of the Act at a relatively finite point. Therefore, the Office also considered and adopted an alternative whereby the transferor/operator's secondary liability for the well terminates upon approved release of applicable performance bond. As long as the operator is still conducting reclamation in a permit area, it will be relatively easy for the operator to conduct necessary repairs or closing operations to a well.

If a transferee does not maintain the well, the transferor's cost should not be excessive to return to fulfill his/her obligations under Sections 816.53(c) and 817.53(c).

The Office also considered, but rejected, an alternative limiting the transferor's secondary liability to 12 months after the transfer, because this is a relatively short period in which to determine whether the surface owner has satisfactorily administered a transferred well. Tying the elimination of secondary liability to bond release provides the regulatory authority with a sufficient length of time in which to determine, accounting for seasonal variations, that the surface owner can satisfactorily manage the well.

(5) Several commenters questioned the applicability of Paragraphs 816.53(d) and 817.53(d) in the proposed rules and also pointed out that the paragraph could have been construed to entirely negate the rest of the Section, as Paragraph (d) seemed to say that 816.53 and 817.53 would not support any State law on well transfers. Because Section 515(b)(10) of the Act requires that wells used in coal mining be used and reclaimed to protect ground water resources, it is necessary that State law, allowing for a different result, be pre-empted by Sections 816.53 and 817.53. Accordingly, to eliminate confusion, Paragraph (d) has been deleted in the final rules. In summary, it is the Office's intention that transfer of wells may be permitted under certain circumstances and with certain responsibilities as outlined above. It is not the Office's intention, through this provision, to supersede State or Federal law regulating only the use or allocation of water.

700 SECTION 816.54 Hydrogic balance: Water rights and replacement.

This Section provides that surface mining activities are to be performed in such a manner that water is not contaminated, interrupted, or diminished by the mining operations, and requires the replacement of domestic, agricultural, industrial, or other legitimate water supply when impaired by the mining activities. Authority for this Section is found in Sections 507(b)(11), 508(a)(13), 510(b), 515(b)(10), and 717 of the Act.

(1) A few commenters suggested that the word "proximately'' should be added to the regulations, to conform with the text of Section 717 of the Act. This suggestion was accepted. (2) A commenter questioned whether the operator, in consultation with the owner of interest, should be provided with the option of either replacing water affected by contamination or compensating the owner of interest for that loss. It was asserted that this would be a less expensive method than physically supplying replacement water. If ruined waters are not replaced, owners of interest may never find potable water sources for the replacement on their own. Moreover, Sections 508(a)(13) and 717 of the Act require that replacement, not compensation, be provided.

(3) Two commenters questioned who should have the burden of proof in administration of Section 816.54. Although the regulation does not explicitly establish this, the Office believes no additional language needs to be added to this Section. Under the normal rules of administrative law, the initial burden of production and proof will rest with the party asserting that a water supply source has been affected by interruption, whether a proceeding to enforce Section 816.54 is initiated by the Office or a State regulatory authority under Subchapter L or by a citizen under Section 520 of the Act or other relevant provisions of law.

(4) One commenter felt that the Section should be changed to provide that the operator would not have to replace the landowner's water supply, if the landowner indicated replacement was not wanted. The Office rejected this proposal, as Section 717(b) of the Act clearly requires replacement in all instances. Moreover, allowing present owners to waive the benefits of 816.54 would not provide adequate protection for present lessees or for future owners of the property involved.

SECTION 816.55 Hydrologic balance: Discharge of water into an underground mine.

(1) Section 816.55 provides for protection of the mining areas's hydrologic balance by restricting the diversion of discharge of water from surface or underground mines and the discharge of waste water, including coal processing waste, into other underground mine voids. Use of underground mines for wastewater disposal has the potential of degrading ground water aquifers and stream flow, (USEPA, 1976(a), pp. 90 93, Spaulding and Ogden, 1968, p. 17). However, such practices may be more cost effective than surface disposal facilities for an equivalent degree of environmental protection and, additionally, advantageous in such areas as fire protection, abatement of acid mine drainage, and subsidence control by filling mine voids through sedimentation of suspended solids. Consequently, the regulations would allow the practice, provided that all necessary precautions are taken to assure the protection of the area's water resources and meets with the approval of the Mine Safety and Health Administration (MSHA). It should be noted that the regulatory authority's approval of such a practice will be based on environmental protection and safety criteria, as required in Sections 102, 201, 515(b)(10), 515(b)(12), and 702 of the Act, and not economics.

{15176}The Office considered an outright ban on all discharges into underground mine workings. However, this would preclude the environmentally beneficial measures authorized under this Section. Legal authority for this Section is Sections 102, 201, 501, 503, 504, 506, 507, 508, 510, 515, 516, 517, and 702 of the Act. (2) Two commenters pointed out that a safety hazard might be involved in discharging water into underground voids; accordingly, Paragraph 816.55(e) has been added, requiring MSHA approval prior to allowing discharges under 816.55. Other editorial corrections were made to 816.55, to improve clarity or correct obvious inaccuracies. The Section was reworded to include all discharges into underground mines. Section 816.55(a) was reworded to apply to surface mining activities, which is the Part, of course, to which 816 applies. Section 816.55(b)(7), as proposed, was moved to 816.55(c). Compliance with effluent limitations on the ultimate discharge from the underground mine workings was specified, to insure that these discharges do not circumvent the requirements of 816.42(a)/817.42(a).

(3) Several commenters objected that proposed 816.55(b) did not allow for the discharge from the surface into underground workings to be exempted from the pH limitations of 816.42(a) although an exemption was allowed from the total suspended solids limitation.

700 The commenters pointed out that this would preclude the use of mine workings for storage of acid wastes and/or as an intermediate conveyance facility to a mine drainage treatment plant, requiring unnecessary pre-treatment prior to the discharge into underground workings. Accordingly, the final rule was modified to allow for an exemption as proposed by the commenters. It should be clearly understood, however, that any discharge from the underground workings must meet all relevant effluent limits of 816.42(a) through 816.55(c).

(4) Two commenters felt that 816.55(b) should be deleted because they doubted that the diverted waters would ever meet the effluent limitations and thus there was no reason for not discharging it directly. The Office rejected these comments, because whether or not such waters will ever meet the effluent limitations is conjecture. The subsection is designed to protect the hydrologic balance, but also to provide flexibility for the regulatory authority to grant variances for pH and total suspended solids.

SECTION 816.56 Hydrologic balance: Postmining rehabilitation of sedimentation ponds, diversions, impoundments, and treatment facilities.

(1) Authority for this Section is found in Sections 102, 201, 502, 504, and 515 of the Act. The requirements of Section 816.56 are intended to control the renovation of permanent structures prior to abandoning the permit area. Renovation shall be required to restore all permanent structures to criteria specified in the detailed design plan for each structure approved by the regulatory authority.

(2) Four commenters suggested that this Section should require renovation of all permanent structures allowed to remain, to critera specified in the permit, rather than to require restoration to the original design as was provided in the version of this Section proposed September 18, 1978. Four other commenters suggested modification of the renovation requirements to requirements appropriate for the approved land use. All suggested that restoration to the original design would unnecessarily require removing silt accumulations from all impoundments regardless of the postmining use. Alternatives considered for developing the final rules were (1) to leave rules as proposed, which requires that all structures be restored to the original design, (2) change the renovation requirements to those approved by the regulatory authority in the detailed design plan, and (3) change the renovation requirements to criteria appropriate for the postmining land use.

The final rules were developed using the second alternative, which requires that permanent structures shall be renovated to criteria specified in the approved detailed design plan for the structure. This will give the flexibility needed to renovate the structure to suit postmining land use and will assure that the regulatory authority reviews and approves all renovation plans. The first alternative was rejected because OSM believes that it is too restrictive and that the regulatory authority should be allowed some flexibility in determining how structures should be renovated on a site-specific basis. The third alternative is incomplete, and was not accepted because the Ofice believes that, although appropriateness for post-mining land use is one standard to be met, other standards also should be brought into consideration, as appropriate, in the detailed design plan.

SECTION 816.57 Hydrologic balance: Stream buffer zones.

(1) Authority for this Section is Sections 102, 201, 501, 503, 504, 506, 507, 508, 510, 515, and 517 of the Act. In particular, this Section is promulgated to implement Sections 515(b)(10) and 515(b)(24) of the Act. Buffer zones are required to protect streams from the adverse effects of sedimentation and from gross disturbance of stream channels, as explained in further detail in the Final Environmental Impact Statement (p. BIII 59).

(2) The general rule of Section 816.57 recognizes that buffer zones are an effective method to be used, in conjunction with sedimentation ponds and other techniques, to prevent sedimentation of streams by runoff from disturbed surface areas (Tennessee Valley Authority. 1971. 10 pp.; Karr and Schlosser, 1978, pp. 229 234; Grim and Hill, 1974, pp. 102 and Appendix D, pp. 255; Hardaway and Kimball, 1976, pp. 27 29; Weigle, 1965. p. 314; and USEPA, 1976b, Erosion and Sediment Control, Vol. 1, pp. 7, 14, 19, 30, 32, 61 62). It also recognizes that small streams may have a biologic community of considerable complexity worthy of protection under section 515(b)(24) of the Act, even if the streams are not perennial (Hynes, 1970, pp. 398 408).

700 However, since even the most ephemeral streams may have benthic biota, the Office believes that some reasonable level of biological community complexity should exist in streams before they deserve direct protection. The rule under Section 816.57(c) for determining "biological community'' seeks to do this by eliminating from consideration most of the very small forms of stream biota which have brief, ephemeral lifespans, unless they are joined in the biota by longer lived, larger, and more complex forms of life which characterize the more permanent streams (Hynes, 1970).

(3) Section 816.57 protects stream channels, but contemplates that the regulatory authority may allow surface mining activities to be conducted within 100 feet of a perennial stream or a stream with a biological community adopted to flowing water for all or part of their lifecycle. Thus, if operations can be conducted within 100 feet of a stream in an environmentally acceptable manner, they may be approved. This concept does permit the use of erosion and drainage control measures near the channel, if approved by the regulatory authority. The 100-foot limit is based on typical distances that should be maintained to protect stream channels from sedimentation. The 100-foot standard provides a simple rule for enforcement purposes, but the Office recognizes that site-specific variations should be made available when the regulatory authority has an objective basis for either increasing or decreasing the width of the buffer zone. Under Section 816.57, an operator cannot mine through a stream covered by Section 816.44 (intermittent and perennial streams), unless it has been diverted around the area of disturbance in accordance with that Section.

{15177}(4)(a) Several commenters questioned Sections 816.57(a) and 817.57(a) as to which water bodies require buffer zones. A commenter pointed out that even ephemeral streams and dry washes are significant sources of water and sediment to larger streams within the watershed, and thus are in need of protection by buffer zones to preserve aquatic habitat downstream. Although this is true, the Act contemplates mining and associated activities to directly disturb minor stream channels, when it allows for sedimentation ponds (Section 515(b)(10)(B) of the Act) which have to be built in some sort of water drainage channel. The Office thus has to draw a reasonable line.

Surface mining is impossible without destruction of a number of minor natural drainages, including some ephemeral streams as defined in section 701.5. The Office, therefore, believes it is permissible to surface mine coal so long as a reasonable level of environmental protection is afforded.

(b) Several other commenters felt only perennial streams should require buffer zones. This would reduce operator cost and increase coal production from deposits underlying nonperennial streams. The Office believes that this alternative is illegal; however, because there are significant fish and wildlife resources in streams other than perennial streams that need protection under section 515(b)(24) of the Act. The Office rejected these alternatives and chose not to change the section, except to delete the term "macroinvertebrate biological community'' and redefine and clarify the intent of "biological community.'' (See following discussion.) The regulation by use of the term "biological community,'' seeks to protect biologically significant streams from direct disturbance, except in accordance with section 816.44. The more constant intermittent streams will usually have a biological community, but as streams become increasingly intermittent due to their climatic, geologic, and geographic location, the less likely it will be that they have a biotic community that fits within the definition of sections 816.57(c) and 817.57(c). The regulatory authority and the permittee can agree at the application stage where buffer zones need to be established, based on the fish and wildlife data required under section 779.20.

Perennial streams will almost always have a significant biota unless it has been eliminated by pollution. Use of this regulation will aid the restoration of previously damaged streams.

The buffer zone concept is equally applicable to impoundments (other than mine-related sedimentation ponds and waste impoundments), both natural and man-made. The Office is not promulgating a rule specifically calling for buffer zones at impoundments at this time, because buffer zones may be required by the regulatory authority near impoundments under the provisions of section 816.97(d). (5) Several commenters questioned the width of the buffer zone. One requested restricting it to 100 feet in all cases, another to 200 feet. Two suggested allowing the distance to the discretion of the regulatory authority. The first two alternatives were rejected. A specific inflexible width is arbitrary, would not fit local situations, and could take significant coal reserves out of production without adding any better protection to the stream. The Office chose to make no changes to the regulation, as the 100-foot zone is a valuable general rule, but it is the intent of the Office that the width of the zone may be increased or decreased when there is justification for doing so, according to the findings of the regulatory authority. The Office believes that this is in accordance with the concerns in the other two comments.

(6) A State agency felt that State mining agencies may not have sufficient expertise to evaluate damage to streams, if buffer-zone exceptions are authorized. In particular, this commenter felt that the regulations should require those other State agencies which already have the necessary expertise to participate in decisions such as this. The Office feels that this can adequately be achieved by specific coordination requirements in State programs submitted for approval by the Secretary. Thus, for example, a State program could provide for approval by another agency within the State for those portions of the permit application dealing with buffer zones and for which the agency has sufficient expertise.

700 (7) Another commenter felt that buffer zones should be required only for streams known to have listed "threatened or endangered species'' within their biota. The Office rejected this alternative, as section 515(b)(24) of the Act requires protection of all fish, wildlife, and related environmental values, using the best technology currently available. It would be illegal to protect only those streams with threatened or endangered species.

(8) Another commenter felt that section 816.57(a)(2) should apply only to water quality and not quantity. The Office rejected this alternative because it would be illegal under section 515(b)(10) of the Act. Also, changes in water quantity can have marked effects on water quality and availability of aquatic habitat, thereby adversely affecting fish and related environmental values of aquatic environments as prohibited by section 515(b)(24) of the Act. ( See Hynes, 1970, chapters 3, 11, 21.) (9) Several commenters asked that the section be deleted entirely, as being redundant relative to various other sections of the regulations. These comments have some merit and changes have been made in sections 816.44 and 816.97 to clarify the regulatory scheme.

However, the Office rejects the position that there is no need for a separate section dealing specifically with stream buffer zones. Streams are the crucial conduits of sediment pollution from mine areas, and a given stream section either has a significant biota or else eventually flows into a downstream area which has a significant and valuable biological community that is significant for human uses. Because of the significance of streams as features on the mine landscape, the Office believes that rules on how streams are to be treated and protected should be spelled out. Section 816.57 establishes the kinds of streams that have the level of biological significance that triggers direct protective measures. Section 816.44 prescribes how stream channels and stream water must be handled when diversions are justified. Other sections of the regulations dealing with sedimentation ponds (section 816.46), impoundments (section 816.49), rehabilitation of ponds and treatment facilities (section 816.56), and revegetation (Sections 816.111 114) are to be read in conjunction with the provisions of this section. The Office believes that the conflicts have been resolved.

(10) Several commenters made suggestions on the definitions of perennial, intermittent, and ephemeral streams which relate to sections 816.57 and 817.57. The reader is directed to section 701.5 and the preamble for a discussion of those definitions and a resolution of the comments.

(11) The definition for "macroinvertebrate biological community'' was deleted because several additional commenters were confused by, and misconstrued, its concept. The Office redefined the term as "biological community.'' The concept is still retained, as discussed below, but is clarified by redefining it as a rule within sections 816.57(c) and 817.57(c).

{15178}The definition of macroinvertebrate biological community was proposed by the Office in 43 FR 41805 41806 to be applied to buffer zones (Sections 816.57 and 817.57) and stream-channel diversions (Sections 816.44 and 817.44). Hydrologic discharge characteristics are the main criteria on which the definitions of ephemeral, intermittent, or perennial streams are based, but these discharge criteria do not directly relate to the ecological complexity of stream communities. (Hynes, 1970, chapters 3, 11, and 21; Gary, McAfee, and Wolf, 1974, pp. 233, 366, and 527.) Therefore, the buffer zone sections as proposed, used the macroinvertebrate biological community (MBC) definition to call for a special performance standard near streams that are either perennial or which have an MBC.

700 These biological significant streams may be diverted only under special circumstances by cross-reference to Section 816.44 in Section 816.57(a). Section 816.44 applies certain engineering criteria to the diversion of streams characterized as "intermittent'' using hydrological considerations.

(12) Several commenters assumed that the MBC definition would cause the buffer zone sections (Sections 816.57 and 817.57) to apply to all ephemeral streams or "pools of stagnant water.'' These comments misunderstood the definition, which was specifically drafted to refer to true stream community organisms that need flowing-water conditions to complete their life cycles. These organisms are severely limiting in that they must be arthropods (insects, crayfish, and their kin) or mollusks (snails, clams, and their kin), and that they must be larger than 2 mm long while living in the stream. These criteria eliminate worms and hundreds of species of tiny arthropods and other small fauna which inhabit all streambeds, from the wettest to the dryest. (See Hynes, 1970, Chapter 21.) Even streams with summer pools containing fish that migrate upstream in the spring would not be included, unless a MBC also exists. For the more constant intermittent streams in wetter regions, a MBC will usually exist, but a MBC will very seldom exist in a truly ephemeral stream as defined in Section 701.5. In arid regions, many intermittent streams draining large areas will have no MBC (Hynes, 1970) and will thus be exempt from the buffer-zone regulations, although the stream-channel diversion regulations will still apply.

It is the intent of the Office that the use of the MBC indicator approach will better determine the streams worthy of special protection under the buffer-zone concept. It will necessitate a stream-fauna survey before a permit is granted, in those cases where it is unclear to the regulatory authority from available information on discharge ranges, maps, and from other sources, whether the stream segments within or bordering on the mine-plan area have a MBC. Such surveys are very simple, and the regulatory authority should have the expertise to make a determination based on the stream organisms found.

(13) A commenter suggested that some index of species diversity be used in the definition of a MBC. The Office believes that the mere presence of reproducing species is the most basic indicator of diversity. The definition has been carefully tailored to include a level of complexity indicative of a true stream ecosystem, on the basis of considerations discussed by Hynes (1970).

SECTION 816.59 Coal recovery.

This Section addresses two persistent problems of coal mining: (1) The loss of coal resources when mining does not recover all the coal at a particular mining site, and (2) recurrent environmental degradation when land is reopened for mining to recover the remaining coal. The regulation requires the operator to conduct mining operations to maximize resource recovery. This would be accomplished by mining all available coal at a minesite, which it is economically feasible to extract. It further requires operators to preserve environmental quality and to restore environmental balances after mining ceases. The authority for this Section is Sections 102, 201, 501, 503, 504, 510, and 515 of the Act.

(1) The Office considered but did not include specific language requiring the recovery of all coal economically feasible to be recovered from a site, because such a requirement would be too imprecise to enforce effectively and uniformly. The regulation as promulgated would be satisfied, however, by a demonstration by the permittee to the regulatory authority that all coal which is economically feasible to recover will be mined.

(2) The Office also considered requiring fixed percentages of recovery. The most commonly considered fixed percentages were 85, 90, and 95. These alternatives were not included for three reasons. First, it is difficult to define precisely the amount of coal existing at a site prior to mining, because of variable thickness of seams and partings, variable quality of the coal, and variations in depth of overburden. Second, health and safety considerations may preclude attainment of fixed percentages of recovery. Third, constant variation in thickness of seams, quality of coal, depth of overburden, and mining conditions would require a continuous monitoring and detailed ongoing exploration program which may be beyond the capability of the regulatory authority to undertake or oversee. All commenters on the fixed percentage of the proposed regulations provisions, and there were many, pointed out that the requirement would be inappropriate because the amount of coal that can be mined economically varies widely from place to place. The reader is referred to the Office's Regulatory Analysis for a discussion of the costs of these alternatives, which the Office considered in reaching its decision.

(3) A third alternative, requiring a separate list of cost variables and resource figures from the operator was also considered but not adopted. Public comment on the utility of requiring this information in permit applications, for use by the regulatory authority according to a fixed formula for determining economic feasibility of recovery, was overwhelmingly against such a requirement. The Office agrees with the commenters that such requirement would be impractical and incapable of uniform administration.

(4) One commenter suggested that recovery of small coal rider seams be made mandatory. The Office feels that coal recovery depends on the quality and thickness of a seam as these characteristics relate to economic recovery. Accordingly, the Office does not prohibit the spoiling of small rider seams in the course of economic recovery of major coal seams, so long as the maximum recovery economically feasible is achieved.

(5) A commenter suggested prohibiting the redisturbing of previously mined land for a period of 30 years as a means of insuring maximum recovery. OSM has rejected this suggestion, because this concept would foreclose, for 30 years, the introduction of new mining technology which could make mining of the remaining coal economic, while it might not have been during the initial period of mining.

(6) The reader's attention is directed to proposed regulations for determining recoverable reserves under a Federal lease, published by the U.S. Geological Survey July 10, 1978, (43 FR 19631). The Office understands the final version of these rules is soon to be published.

(7) Under the regulations published today, the regulatory authority would monitor the mining operations to assure that the operator is proceeding in compliance with the permit and with the determination of recoverable coal. Variations in recoverability may be necessary, where dictated by quality of coal resources, by health and safety considerations, by the geometry of the mine workings, and other factors.

(8) The language relating to environmental quality was added in response to comments, with which the Office agreed, pointing out that the requirement for maximization of recovery should not be viewed as superseding other performance standards, but should be viewed as a requirement of equal importance to others in Part 816. The additional language places the regulation in perspective.

SECTION 816.61-816.68 Use of explosives.

Introduction These sections establish performance standards regulating the amounts, methods of use, timing, and monitoring of blasting in the course of conducting surface mining activities. The statutory authority for and general basis and purpose of these sections were explained in the preamble to the proposed regulations, 43 FR 41753 41758 (Sept. 18, 1978).

The fundamental purpose for these sections is to establish regulatory controls on the use of explosives and blasting agents used in surface mining activities, because of the great potential for damage to public health and safety and water resources that improper blasting can cause. Congress was well aware of these dangers when it enacted the Act, as was explained through a review of relevant portions of the legislative history in the preamble to the proposed regulations. To protect against these dangers, Congress required the establishment of rigorous regulatory controls, particularly under Section 515(B)(15) of the Act.

1. Regarding Congress' perception of the dangers that may occur from blasting in surface mining activities, some commenters criticized what they felt to be the Office's reliance on a report presented in 1977 to the House Subcommittee on Energy and the Environment by the Center for Science in the Public Interest (CSPI). This report's conclusions were briefly discussed in the preamble to the proposed rules.

These commenters felt that the Office should not utilize the CSPI report because of asserted inaccurate assumptions about the extent of blasting effects made by the authors of the report. The Office has carefully reviewed these comments and the report and has concluded that, while the report's quantitative estimates of annual damages from surface mining blasting are indeed open to debate, changes in the regulations are not needed on that basis. The CSPI report was described in the preamble to the proposed rules as material illustrating the basis for Congress' general concern with the adverse potential for blasting, because it contained reports of firsthand observations of the effects of blasting in surface mining activities. Those observations, rather than quantitative predictions in the report, were used by the Office. Those observations were not challenged by commenters. As a result, the Office notes that the CSPI study is entitled to some weight to generally illustrate that significant problems can occur, if blasting is not properly controlled.

2. Materials considered by the Office in developing these regulations include: 1. Ash, R. L. 1968, The Design of Blasting Rounds, pp. 373 396, Chapter in Surface Mining, American Institute of Mining, Metallurgical, and Petroleum Engineers, Inc., New York, 1,061 pages.

2. Ashley, C., and Parkes, D. B., 1976, Blasting in Urban Areas: Tunnels & Tunnelling (British Tunnelling Society), September, 1976, pp. 60 67.

3. Barnes, Jack (John B.) 1977, The Effects of Strip Mine Blasting on Residential Structures_Ayshire Mine, Warrick and Vanderburg Counties, Indiana. Paper presented to the Indiana Academy of Science, Indianapolis, Indiana, October 28, 1977, 19 pp.

4. Coal Mine Health and Safety Act of 1977 and 71 CFR, Subpart D.

5. Committee on Hearing, Bioacoustics and Biomechanics, Assembly of Behavioral and Social Sciences, 1977.

Guidelines for Preparing Environmental Impact Statements on Noise, T1162 pp.

6. Dvorak, A. 1962, Seismic Effects of Blasting in Brick Houses, Geotysikalni Shornik, No. 169.

7. Grim, E. and Hill, R. 1974, Environmental Protection in Surface Coal Mining (U.S. Environmental Protection Agency, No. 1BB040).

8. Gustafsson, Rune 1973, Swedish Blasting Technique, SPI, Gothenburg, Sweden, 323 pp. 9. Kentucky Department of Mines and Minerals, 1977 Laws and Regulations Governing Explosives and Blasting.

Lexington, Ky., p. 1.

10. Laadegard-Pederson and Dally, 1975, A Review of Factors Affording Damage in Blasting, National Science Foundation.

11. Maryland Geological Survey, Bureau of Mines, 1973, Blasting restrictions (08.06.05.09) and Regulations governing blasting (08.06.05), in Bituminous coal strip mines and auger regulations, Maryland Department of Natural Resources Rules and Regulations, p. 23.

12. Medearis, Kenneth, 1976, The Development of Rational Damage Criteria for Lowrise Structures Subjected to Blasting Vibrations.

A Report of the National Crushed Stone Association, Kenneth Medearis Associates, Fort Collins, Colo., and Valley Forge, Pa., 94 pp. (duplicated report).

13. Miller, P. H. (no date), Blasting Vibrations and Air Blast: Park Central, Ill., Atlas Powder Co., 16 pp.

14. Nicholls, H. R., Johnson, C. F., and Duvall, W. I. 1971, Blasting Vibrations and Their Effects on Structures.

U.S. Bureau of Mines Bulletin 656, 105 pp.

15. Old Ben Coal Company, Comments to Office of Surface Mining (1978).

16. Pennsylvania Department of Environmental Resources, Rules and Regulations, Title XXV, Pennsylvania Code, Ch. 211.

17. Research Energy of Ohio, Inc. Comments to Office of Surface Mining, 1978.

18. Siskind, D. E., 1977, Structure Vibrations from Blast Produced Noise, in 18th International Rock Mechanics Symposium, June 1977, Keystone, Colo., Proceedings, pp. 1A3 1_1A3 5.

19. Siskind, D. E., Stachura, V. J., and Radcliffe, K. S. 1976, Noise and Vibrations in Residential Structures from Quarry Production Blasting_Measurements at Six Sites in Illinois.

U.S. Bureau of Mines Report of Investigation RI 8186, 17 pp.

20. Siskind, D. E., and Stachura, V. J. 1977, Recording System for Blast Noise Measurement. Sound and Vibrations Journal, pp. 20 23.

21. Siskind, D. E., and Summers, C. R. 1974, Blast Noise Standards and Instrumentation.

U.S. Bureau of Mines, Environmental Research Program, Technical Progress Report ("TPR 78'').

22. Siskind, D. E. 1978, Bureau of Mines Special Study Submitted to OSM, 5 pp.

23. Tynan, A. E. 1973, Ground Vibrations_Damaging Effects to Buildings, Special Report No. 11, Australian Road Research Board.

24. University of Maryland, An Investigation into Delay Blasting 1975, NSF Contract APR 75 05171 to the University of Maryland and Subcontract No. M 218907 to Martin Marietta Laboratories.

25. Duvall, W. J. Devine 1968, Air Blast and Ground Vibration from Blasting. pp. 398 411. Chapter in Surface Mining.

American Institute of Mining, Metallurgical, and Petroleum Engineers, Inc., New York, 1,061 pages.

26. Grubb and Ryder, 1972, and 27. USGS, 1974 (a), vol. 1.

3. Several of the materials were criticized by one commenter as being inappropriate for use by the Office as the basis for some or all of Sections 816.61 816.68. In part, this comment was based on the presentation in the preamble to the proposed rules (43 FR 41753), that the Office "used'' the cited materials to "develop'' Sections 816.61 816.68, thereby indicating that the Office was relying upon each source listed in the Preamble as justification for the proposed rules. In fact, the Office considered all of these sources, but found justification for the proposed rules in only some of them. Those that were believed to justify the regulations were discussed in portions of the preamble to the proposed rules related to particular sections of the regulation.

{15180}For the final rules, the Office has listed above all materials considered. That literature which provides the actual basis for particular sections of the regulations questioned by commenters is cited in succeeding portions of this preamble. The Office has also specifically considered the criticisms of the commenter who questioned the applicability of several articles listed in the preamble to the proposed rules_ (a) The Medearis study was consulted frequently by the Office in the preparation process, as is indicated by frequent citations in the final preamble. While the Office did not, as explained below, feel that the structural response technique proposed by Medearis is adequately developed for the purpose of adoption in these regulations (as an alternative to the peak particle velocity ground vibration limitation) the report does contain a considerable amount of useful information in other areas.

(b) The Siskind paper, "Structure Vibrations from Blast Produced Noise,'' points out that significant structure vibrations can be produced by airblast alone and that an airblast criteria based on damage should be considered. The specific data in the paper were not used as a basis for the final regulations. The noise decibel limits of Section 816.65 were derived, instead, from a special study done for the Office by the U.S. Bureau of Mines and from comments of a State agency.

(c) The Siskind and Stachura paper, "Recording System for Blast Noise Measurement,'' provided background information essential to the understanding of airblast recording systems. It contained no data which were directly used in support of a quantitative limit in the final regulations.

(d) The Atlas Powder Company brochure, "Blasting Vibration and Airblast,'' contained no data other than that contained in Bureau of Mines Bulletin 656 and TPR 78. It did, however, show that a major powder company considers Bureau of Mines publications as authoritative sources. Since the Bureau work contributed heavily to the regulations, it was important to know that industry has confidence in Bureau work. This is clearly shown by Atlas' preparation of a users' pamphlet based primarily on Bureau work.

(e) Bureau of Mines TPR 78, "Blast Noise Standards and Instrumentation,'' contained a good deal of background on airblast reduction techniques, some typical airblast levels measured on various instruments, and general recommendations. Although TPR 78 was used as a basis for the 128 dB standard in the interim regulations (see 30 CFR 715.19), the final standard was based on the special Bureau of Mines study. TPR 78 did, however, provide much of the rationale for parts of the airblast regulation, as indicated by frequent citations in the final preamble.

(f) The Ashley and Parkes reference was not relied upon in developing the vibration standard. Although not a study involving original research, it does present reasoned opinion, based on experience of the authors, that the one-inch-per-second peak-particle velocity standard is reasonable. This paper is an example of one which was considered, but which did not weigh heavily on the writing of any particular section of the regulations.

(g) Bulletin 656, "Blasting Vibrations and their Effects on Structures,'' was frequently used in the writing of the regulations. The data on propagation of blast vibrations was especially useful. The scaled distance formula requirement of Section 816.65 was also developed from that publication. Bulletin 656 stated that the two-inch-per-second criterion will keep the probability of damage below five percent. However, as explained further below, because of the inadequacy of a two-inch standard and information in several other technical reports (references 5, 6, 8, 12, and 13) the one-inch-per-second criterion was adopted in the final rules. The Office agrees with the statement that a scaled distance of 50 will protect against vibration of two-inches-per-second. The same graphs used for that conclusion support the use of a scaled distance of 60 to protect against vibrations of one-inch-per-second.

(h) RI 8168, by Siskind, Stachura, and Radcliffe, gave an insight on the correlation between structure vibrations induced by ground vibrations and airblast. No recommendation as to damaging levels from blasting was made. This publication merely gives background information on the technology and was not specifically used in writing the regulations.

(i) The preamble to the interim regulations referred to studies by the National Coal Board as part of the rationale for a one-inch-per-second limitation. This information was not used as a basis for the one-inch-per-second limitation in the final regulations and has not been incorporated in the list of references.

(j) The Barnes study, "The Effects of Strip Mine Blasting on Residential Structures . . .'' has been criticized by many commenters. It was considered in the writing of the regulations, because it demonstrates the annoyance of the public that can result from blasting conducted at a large surface coal mine. Because the explanation in the Barnes study of causes of much of the damage observed was subject to qualification because of the lack of pre-blasting data, the study points out the desirability of preblast surveys. This report was not, however, directly used in the writing of the final regulations.

(k) The Research Energy of Ohio comments to the Office were used to show that an alternative to traditional delay detonators exist for reducing peak particle velocities and to indicate that the industry can meet the one-inch-per-second standard. The use of these materials with respect to delay detonation is to allow for the only alternative that may be available for some operators who want to blast at very close distances to structures, i.e., within 300 to 1,000 feet.

(1) The University of Maryland, "An Investigation into Delay Blasting,'' describes inaccuracies in firing times of commercial electric blasting caps which have been known for a long time. The commenter stated that these inaccuracies cast doubt as to the ability of operators to meet the one-inch-peak-particle-velocity limitation, by using a scaled distance equation based on eight-millisecond delay intervals. However, the scaled distance studies described in Bulletin 656, upon which the Office's scaled distance formula in the final rules is based, were empirical studies employing standard commercial detonators which would have the inaccurate firing times described by the commenter. Thus, those empirical studies accommodate and account for the inaccuracies described by the comments.

The University of Maryland publication itself was used only to justify Sections 816.65(o) and 817.65(p) in the proposed regulations, which required regulatory authority permission to use combination surface-in-hole delay systems. In response to heavy comment objecting to this requirement, with which the Office concurs, it has been deleted. Thus, the University of Maryland study was not used to directly support any of the final rules.

SECTION 816.61 Use of explosives: General requirements.

I. A few commenters proposed that over 50 safety-related items be included in Sections 816.61 and 816.65 as operating standards. These suggested additions would cover the transportation, storage, and use of explosives. A study of these comments indicated that these items should not be included in the final rules.

{15181}Examination of the suggestions showed that they apply mostly to the safety of workers; commenters did not indicate how the inclusion of these provisions would increase the safety of the public. All but one of the proposed additions to the rules were either already adequately covered by the Office's rules or were covered by regulations of the U.S. Mine Safety and Health Administration (MSHA) or the Federal Bureau of Alcohol, Tobacco, & Firearms (ATF).

Because MSHA has primary responsibility for the safety of workers and ATF has primary responsibility for the storage of explosives to protect the public, inclusion of these provisions in the regulations would be an unnecessary duplication. The exception is the lack of a provision to regulate the use of two-way radios in the vicinity of explosives. MSHA has advised the Office that the use of two-way radios has never been known to cause an accident and that estimated costs of requiring those throughout the industry would be $4,000,000, a cost that would appear not to be justified.

II. To avoid redundancy by Federal agencies in inspection and enforcement, and to stay within the authority of the Act, deletions were made from proposed Section 816.61(a). The proposed regulation required compliance with all applicable local, State and Federal laws and regulations and the requirements of Sections 816.61 816.68 in the storage, handling, preparation, and use of explosives. The section was changed to require compliance with all applicable State and Federal laws in the use of explosives. As compliance with all sections of the regulations is independently required, the reference to Sections 816.61 816.68 was deleted.

The Act in section 515(b)(15) requires the Office to "ensure that explosives are used only in accordance with existing State and Federal law and the regulations promulgated by the regulatory authority . . .'' The Act does not mention local law. In many cases it will not be necessary for inspection personnel of the Office to determine all the laws which may be applicable in the numerous municipalities and counties within their assigned geographical areas, because those governmental bodies will enforce those provisions directly. Therefore, reference to local laws and regulations has been deleted.

Further, the Act mandates that the Office "ensure that explosives are used only in accordance with State and Federal law . . .'' (emphasis supplied). Traditionally, the "use'' of explosives has been differentiated in State and Federal regulations from the processes of manufacture, transportation, and storage, such as is done in MSHA regulations. See 30 CFR 55.6 1, 55.6 40, 55.6 90, 77.1300, 77.1301, 77.1302, 77.1303. Inspection by personnel of the Office to ensure compliance with all Federal and State laws pertaining to storage, preparation, and handling of explosives is not required of the Office by the Act under Section 515(b)(15). These aspects are presently sufficiently regulated by other Federal and State agencies, such as ATF, MSHA, and the U.S. Department of Transportation. Therefore, the reference that appeared in the proposed regulations pertaining to the storage, handling, and preparation of explosives has been deleted.

III.

Section 816.61(b).

A. Several individuals and groups objected to the use of "the equivalent of five pounds of TNT'' in the proposed rules as being confusing, since no mining operation uses TNT, the limit was too low, or the regulation was ambiguous. Based on the comments received, the following alternatives were considered and alternatives (2) and (5) were adopted.

(1) Retain the specification "the equivalent of five pounds of TNT'' as written in the proposed permanent rules.

(2) Substitute in Section 816.61(b) the phrase "five pounds of explosive or blasting agent.'' (3) Increase the weight to "250 pounds of explosive or blasting agent.'' (4) Define the term "explosives'' in the regulations.

(5) Do not further define the term "explosives.'' B. A few commenters felt that the specification in the proposed rule of "the equivalent of five pounds of TNT'' was ambiguous and confusing. "TNT'' is used for military operations, not industrial blasting. One of these commenters recommended that the Office define explosives. Another commenter asked for clarification at to whether OSM means five-pounds-per-blast or five-pounds-per-delay, and recommended specification of five-pounds-per-delay. Another commenter suggested that the minimum weight be increased to 250 pounds, and that a provision be made for exempting unscheduled detonations in case of misfire, wet holes, or other instances. The comments on the ambiguity of the "TNT'' specification are correct, so the Office has replaced the phrase "the equivalent of five pounds of TNT'' by "five pounds of explosives or blasting agents .'' A similar change was also made in Section 816.64(a) of the final regulations. "Explosives or blasting agents'' covers the range of products used for industrial blasting. Since both "explosives'' and "blasting agents'' are widely accepted terms for many specific types of detonable materials, and the definitions are common knowledge to those engaged in surface mining activities, no specific definition in the regulations is necessary. Of course, State regulatory authorities may adopt specific definitions, if those definitions cover all types of detonable materials used for blasting in surface mining activities in the particular State.

C. As proposed, Section 816.61(b) clearly stated that the rules apply to "blasting operations that use more than five pounds. . . .'' However, to eliminate any possible confusion, the term "blasting operations'' has been changed to "blasts.'' Therefore, all "explosives and blasting agents'' used in a particular blast will be aggregated to determine if these regulations apply. The Office clearly does not mean that the regulations should be applicable on the basis of five pounds "per delay.'' The recommendation to increase the minimum charge specifications to 250 pounds was not accepted. First, this comment merely asserts, without providing supporting data, that blasts containing up to 250 pounds of explosive can be conducted safely. Second, (Ref. 14) Bureau of Mines Bulletin 656, p. 66, Figure 5.1, shows that even 27 pounds of explosive fired unconfined at a distance of 900 ft. will yield an airblast with overpressure of approximately .08 pounds per square inch, or 150 decibels, an unacceptably high level far in excess of the maximum allowable levels for blasting needed to protect the public. (See Section 816.65(e) and the literature cited in this preamble to support the maximum decibel levels.) Thus, if blasts at 27 pounds can produce overpressure far in excess of allowable limits, the Office believes that establishing the minimum level for application of these regulations at five pounds is desirable to ensure that blasting is conducted, as required by the Act, to adequately protect the public. See Section 515(b)(15) of the Act.

D. Finally, the Office has also decided not to adopt a special exception from the blasting schedule warning requirements for misfires and for other reasons that lead to explosives failing to fully detonate. Such an exception is unnecessary, if the need for additional blasting to replace misfires and wet holes is accounted for and described with particularity in the original blasting schedule. For example, if the schedule describes that blasting will occur at 2 3 p.m. on X date, then re blasting at 3 p.m. for misfires occurring at 2 p.m. will have been properly described in the schedule. It is noted, however, that re-blasting occurring at times or under conditions not specified in the blasting schedule would not be allowed, because then the public will not have received the adequate warning required by Section 515(b)(15) of the Act.

{15182}IV.

Section 816.61(c).

Several commenters questioned the specification in the proposed rules of persons requiring blaster certification and personal characteristics of persons handling explosives. As a result, the Office revised Section 816.61(c) to eliminate reference to personnel characteristics of persons handling explosives and to retain only the requirements that blasting operations be conducted by certified blasters.

Adequate requirements for certification of blasters will be provided in detail in 30 CFR Part 850. Therefore, it is redundant to specify other requirements for certification of blasters in Section 816.61(c). It is sufficient in this section to provide that all blasting operations be conducted by certified blasters. Several commenters stated that is is unreasonable to certify all persons using explosives. These comments will be considered in the revision of proposed 30 CFR 850.

SECTION 816.62 Use of Explosives: Pre blasting Survey.

Section 816.62(a).

(A) Numerous comments were received relative to when, where, how, and by whom the preblasting survey should be conducted. A review of the comments resulted in consideration of the alternatives listed below. Alternatives three and four were adopted by the Office.

1. Retain the section as it appeared in the proposed regulations.

2. Set a definite time limit for submission to the regulatory authority of the preblast survey report, when completed.

3. Amend the proposed regulation to require "prompt'' responses to the request for the survey and submissions of the report to the requestor and the regulatory authority.

4. Amend the proposed regulation to add provision for a supplemental pre blast survey, if there have been renovations or additions to a surveyed structure after the original preblast survey.

5. Amend the section to extend the area of preblast survey beyond one-half mile of the permit area.

6. Amend the section to require that the preblast survey state the causes of existing, preblasting structural damage.

7. Amend the section to require that requests for preblast surveys be made in writing.

8. Amend the section to require that the blast schedule providing notice of the right to a survey be mailed to all residents within one mile of the permit area and include a map showing the permit area.

B.

Analysis of Comments and Alternatives Alternatives 2 and 3.

Numerous comments were received relative to setting a time limit on completion of the pre blast survey and submission of the report. The Office rejected the alternative of setting a specific time limit, in days, for the initiation of a preblast survey report and, instead, adopted the alternative of requiring both "prompt'' responses to the request for surveys and "prompt'' submission of survey reports to the regulatory authority. This alternative will further the purposes and requirements of the Act to ensure that preblast surveys be completed in a reasonable time prior to blasting, at the same time leaving flexibility to the regulatory authority to administer preblast survey requirements to fit local needs and workloads.

Alternative 4.

A few commenters recommended that provisions should be made for a supplementary preblast survey, where renovations or additions have been made to a structure after an initial preblast survey has been made. The Office accepted this recommendation. The Act, Section 515(b)(15)(E), mandates that, if requested, a preblast survey be conducted of any structures within one-half mile of the permit area. Additions to a structure after the survey become portions of the "structure'' that have not been surveyed and, therefore, should be covered in a supplementary survey. Renovations of a structure can substantially change its features, so that a preblast survey conducted prior to the renovation will no longer be representative of the structure for the purposes of analyzing the effects of blasting on the structure.

Alternative 5.

Several comments were received relative to extending the area for preblast surveys beyond one-half mile of the permit area. The Office considers the one-half mile zone required by the Act as adequate for most circumstances. At a 0.5 mile (2,640 feet) distance, based on the scaled distance formula presented in 30 CFR 816.65(m) (l), more than 1,900 pounds of explosives can be detonated within any eight-millisecond time period, without the maximum peak-particle velocity of the ground vibration exceeding one inch per second. Similarly, at a distance of 0.6 mile (3,168 feet), over 2,700 pounds of explosives can be detonated without the peak-particle velocity exceeding one inch per second.

Therefore, at distances greater than one-half mile, a mining operator should not experience difficulty in designing blasts that will not exceed the quantities as allowed by the scaled distance formula. Furthermore, Gustafsson, p. 221 (Ref. 8), states that when ground vibration control is to be supplemented with preblast surveys, the extent of the area subjected to pre-blast inspection is usually within one-half mile of a blast site. The Office did not, therefore, extend the area of preblast surveys. However, under Sections 503, 504, and 505 of the Act and 30 CFR 700.3(c), 730 and 736, the regulatory authority may extend the area beyond one-half mile from the permit area, if local situations require.

Alternative 6.

Several commenters recommended specifying that the preblast survey include analyses of the causes of existing preblast structural damage, while another commenter recommended that persons who conduct surveys make no comments either during the survey or within the survey report, concerning possible causes of any damage noted during the survey. The Office did not adopt either of these recommendations. The final regulations neither absolutely preclude nor require such information in the survey report.

In some cases the permittee may choose to have the causes of existing structural damage determined in a preblast survey. However, such determinations need not be made in all cases, because it would require detailed engineering analyses incompatible with the general purpose of the survey, which is to quickly document that damage exists and to compare that record as blasting proceeds.

The Office did not adopt the recommendation to prohibit the surveyor from making comments during the survey. This would be contrary to an objective of the preblast survey as stated in the preamble to the proposed regulations, to increase communication between the mining entity and the public about blasting operations. Further, the surveyor may in some cases be able to provide opinions or information which could be of value to the requestor, by explaining the cause of existing damage present at the time of the survey.

Alternative 7.

A commenter recommended that requests for a preblast survey be made in writing and that the person making the request state the specific conditions of the structure to be surveyed. The Office did not adopt this recommendation, because the stated purpose of the recommendation, which was to limit the number of requests for the preblast survey, was contrary to the purposes of Section 515(b)(15)(E) of the Act. That provision broadly provides for surveys and for the surveyor, rather than the requestor, to evaluate existing conditions of structures. Moreover, requiring written requests would prejudice persons with limited writing abilities in invoking the protection of the Act. Finally, a preblast survey is not an investigative or adjudicatory proceeding, requiring that written allegations be made to trigger the initiation of regulatory procedures.

{15183}Alternative 8.

A commenter recommended that the blast schedule be mailed to all residents within one mile and that a map showing the permit area be included with the schedule. The Office did not adopt these recommendations, because a precise description of the permit area is already required to be published in local newspapers under 30 CFR 786.11, and residents beyond a distance of one-half mile from the permit area can reasonably be expected to have adequate notice of the blasting schedule by its publication in the local newspaper.

II.

Section 816.62(b) Survey Personnel.

A. Numerous comments were received relative to the personnel specifications in the proposed rules for conducting preblast surveys. A review of the comments resulted in consideration of the alternatives listed below. The Office adopted alternative 5.

1. Retain the section as it appeared in the proposed regulations.

2. Amend the regulation to give property owners and residents within one-half mile of the permit area the right to agree to the persons conducting the preblast surveys and/or the right to have their own candidates perform surveys.

3. Establish specific approval criteria for preblast surveyors and have the regulatory authority approve all those permitted to perform such surveys.

4. Establish only one criterion: pre blast surveyors must not be employed by operator.

5. Delete requirement for regulatory authority's approval of persons conducting preblast surveys.

B.

Analyses of Comments and Alternatives Alternative 2.

The Office did not adopt this recommendation as it would make it too difficult to conduct prompt surveys, contrary to the purposes of the Act. Also, it is in the permittee's interest to have a thorough survey performed when requested, as it will serve as a baseline of damage existing at the time of the survey. Furthermore, the public can retain its own consultants, if necessary, for conducting surveys.

Alternatives 3, 4, and 5.

Several comments were received recommending against allowing the use of personnel employed by the mining industry to conduct preblast surveys, while several other commenters asserted that use of industry personnel should be allowed.

As stated in the preamble to the proposed regulations, one of the objectives of the survey is to increase communication between the mining entity and the public about blasting operations including discussions about how operations are conducted and how they may be modified, if necessary, to prevent damage. Use of personnel employed by the mining operators to conduct preblast surveys facilitate this objective.

The second objective of the preblast survey is to provide for the establishment of a preblasting record of the existing conditions of structures. The survey will provide a baseline record against which the effects of the mining-related blasting can be assessed. As it is to the operator's advantage to obtain a thorough preblast survey, it is not necessary to burden the regulatory authority and the industry with the requirement of approval of specific personnel conducting preblast surveys, because the operator is likely to use competent persons to conduct the survey. In addition, requiring prior approval of specific survey personnel would necessitate the establishment of comprehensive, job-related approval criteria, a scheme beyond the scope of this rulemaking.

The requirement in the proposed regulations for regulatory approval of personnel conducting the surveys was, therefore, deleted.

III.

Preblast Survey Methodology.

A. Recommendations as to the specific details of the conduct of preblast survey required by the rules were made by several commenters. Based upon a review of the comments, the alternatives listed below were considered. The Office adopted alternative 1. The Office may also prepare guidance manuals concerning the content of the preblast survey, if future experience indicates a need.

1. Retain the subject section as published in the proposed regulations.

2. Require that the subject of structural fatigue, due to blasting, be included as part of the preblast survey report.

3. Require that information be provided in the report on a specific minimum list of items.

4. Require that a photographic record, with copies of the photographs, be provided to the regulatory authority and to the survey requestor.

B.

Analyses of Comments and Alternatives Alternative 2.

A commenter recommended that the subject of structural fatigue due to blasting be a required item to be considered in each preblast survey. The Office did not adopt this comment as the current state-of-the-art indicates that structural fatigue is not a factor in blast damage. (Medearis, Ref. 12, p. 84). Alternative 3.

A comment was made that information be required on specific minimum items such as cracks in foundations, water leaks, mortar cracks, loosened gutter nails, and columns out of location. The Office did not adopt this recommendation, as it is in the self-interest of the mine operator that the preblast survey accurately reflect the condition of the structure at the time of the survey.

Alternative 4.

Another commenter recommended that a photographic record of the structure be required as part of the survey report. The Office did not adopt the recommendation, because photography is not the only method of establishing the condition of structures. Verbal, textual descriptions are an acceptable alternative.

IV.

Section 816.62(c).

(A) Numerous comments were received on the requirements for a written report of the survey. A review of the comments resulted in consideration of the alternatives listed below. The Office adopted alternative 2.

1. Amend the proposed regulations to substitute the word "may'' for "shall'' in the requirement that ". . . the report shall include recommendations . . .'' 2. A requestor of the preblast survey should be allowed to file objections to the report with the regulatory authority.

3. A requestor of the preblast survey should approve the survey or include comments on it, before the survey report is submitted to the regulatory authority.

4. Amend the section to require the regulatory authority to approve, disapprove, or modify any recommendations contained in the survey report regarding the blasting plan, within a specified time period.

(B) Analyses of Comments and Alternatives Alternative 1.

The Office did not adopt alternative one, because, as many commenters pointed out, the principal objective of the survey is to record existing levels of damage. The professionals who are competent to perform that work are not necessarily qualified to make recommendations concerning blasting itself.

Further, as was explained in the preamble to the proposed regulations, examination of relevant technology thus far has revealed no current, reliable methods for routinely determining the condition of structures in terms of resistance to vibration of structural and nonstructural elements, prior to blasting. Therefore, analyses regarding proposed blasting operations may not be possible in all cases, as part of the preblasting survey.

Alternative 2.

Alternative two was adopted because the requestor of a survey should have the right to comment to the regulatory authority concerning specific objections to the report of the preblast survey, so that the regulatory authority's limited surveillance capabilities of surveys are complemented and so that potential disputes between the permittee and the affected public may be resolved prior to blasting events. In that regard, the Office determined that the public would not be sufficiently protected by the right to file complaints under the inspection and enforcement provisions of Sections 517 and 521 of the Act and Subchapter L, because that process is intended to provide a remedy for problems that have already resulted, whereas the purpose of complaints on a preblasting survey is to prevent adverse effects prior to their occurrence.

{15184}Alternative 3.

The Office did not adopt recommendations by commenters that the requestor of the survey must approve the survey report or include comments therein, before the survey report is submitted to the regulatory authority. Requiring approval of the report prior to its submittal to the regulatory authority would result in considerable delay of the report's submission. Further, it appears to the Office that approval of the report by the requestor might not serve a meaningful purpose, where the requestor was reviewing a report containing detailed technical information difficult for lay persons to understand. As an alternative, the Office has decided that the right of the requestor to comment on the report as provided for in alternative two will provide adequate protection, because the requestor will have had an opportunity to independently consult with appropriately qualified persons, if necessary, prior to filing objections.

Alternative 4.

The Office did not adopt the recommendation of a few commenters that, within a specified time period, the regulatory authority shall in all cases approve, disapprove, or modify any recommendations regarding blasting that are contained in the survey report. It is the responsibility of the permittee, in the first instance, to conduct operations to avoid damaging property. Therefore, it is the permittee's primary responsibility to either implement or reject the recommendations. Requiring regulatory authority approval in all cases of recommendations in preblast survey reports would also be inconsistent with the purpose of the survey, which is to expeditiously provide a baseline reservoir of data on existing damages to structures.

Of course, there are instances where this consideration may be outweighed by the need for a regulatory authority to carefully scrutinize proposed blasting operations prior to blasting, such as where restrictions of Section 816.65(f) or where the peak-particle velocity limit needs to be set below one inch per second, to protect sensitive structures under Section 816.65(i). In those instances, scrutiny of the pre blast survey report, together with other relevant data, is needed because of the greater probability of adverse effects from blasting and also because, ordinarily, examination of those matters will not have occurred during the permit application review process, as is explained in the preamble to 30 CFR Section 780.13.