(1) Authority for this Part is found in Sections 102, 201, 501, 503, 504, 506, 507, 509, 510, 512 and 522 of the Act. This Part contains the general requirements for permit systems under regulatory programs for surface coal mining operations and procedural systems under those programs for coal exploration. Some of the proposed provisions of this Part received no comments and remain unchanged in the final regulations, except for minor editorial or grammatical variations which are not intended to alter the substantive meaning or effect. Further discussion of the basis of authority and purpose for this Part is contained in the Preamble to the proposed regulations (43 FR 41687, September 18, 1978). All comments or significant changes with respect to Part 770 are discussed below.

(2) In connection with the permit requirements, a number of commenters expressed concern over the plight of the small operators and the burden upon them to comply with new permitting regulations in general. Others were concerned that small operators not be granted special exemptions or variances in the type of data required in submission of a complete permit application. In the final regulations, OSM has addressed these concerns in a variety of ways, but the extent of relief for small operators is constrained by the explicit limitations of the Act.

The Act and its legislative history clearly recognize that small operators may be burdened by compliance with the Act, and the Act grants only certain specific limited assistance to these operators, e.g., the small operators exemption in Section 502(c) and the provision of certain services to small operators relating to hydrology and test boring under Section 507(c).

{15009}However, Sections 507, 510 and 511 of the Act require that extensive information be provided before a permit application can be approved, and also provide no exemption or variance for small operators. Moreover, the court has ruled that OSM has no authority to grant exemptions or variances from the requirements of the Act, except where Congress explicitly provided for this authority. ( In re: Surface Mining Litigation, 452 F. Supp. 327 (D.D.C. 1978)). Therefore, except for those elements of the final permit regulations which are not specifically required by the Act, OSM cannot lawfully create exemptions for small operators in the final regulations. On the other hand, OSM may reduce the information required with respect to particular types of environmental resources where, due to the small size of the mine area (as opposed to the mine operator), the impact on those environmental resources will be minimal. In that regard, modifications of particular application requirements in Parts 779 and 780 are discussed in the Preamble for those Parts.

(3) Part 776 of Subchapter G provides minimum regulatory program standards for procedures applicable to coal exploration on non-Federal, non-Indian lands. Part 776 also is limited to coal exploration performed outside land which is already under a current permanent regulatory program per mit. Exploration performed inside the latter type of area is regulated as surface coal mining and reclamation under other parts of Subchapter G.

SECTION 770.2 (4)(a) Section 770.2 states that the objective of Part 770 is to ensure that surface coal mining and reclamation operations will be conducted "only after the regulatory authority has first determined . . . that . . . (such) operations are conducted so as to fully protect the environment.'' A number of commenters objected to the phrase "to fully protect the environment'' and suggested changing the word "fully'' to "adequately'' or "reasonably.'' Other commenters thought that the objective should be to minimize the impact of surface coal mining and reclamation operations on the environment. The phrase "fully protect the environment'' was intended to mean that the purposes of the Act should be fully served under the permit process. It was not, as the commenters assumed, intended to be an "anti-degradation'' provision. These comments have, therefore, been rejected.

(b) A commenter asserted that the States are not given enough discretion in the regulatory process to factor distinct regional and local differences into the permit process. Part 731 of the regulations explains in detail the provision for regional and local differences to be provided in State programs. The commentor did not indicate why Part 731 was inadequate to account for those differences, and, therefore, no change has been made in this Part.

SECTION 770.5 (5)(a) Section 770.5 provides for the definition of terms which are used frequently in different parts of Subchapter G. The basis and purpose and statutory authority for this Section was discussed at 43 FR 41687, September 18, 1978.

(b) Several commenters questioned whether the term "complete applications,'' as defined in Section 770.5, included the submittal of or proof of application for other permits required under laws other than the Act. The answer is no. This definition requires neither: (1) that other permits required under other laws be obtained prior to filing of the application under the Act, nor (2) that applications or proofs of submittal of applications for permits required under other laws be made part of the Act's application, unless a particular State chooses to require this as part of its State program. If a State decides to do so, then OSM would have to approve that action under Section 505 of the Act. It should be noted, however, that OSM has been engaged in negotiations with the Environmental Protection Agency (EPA) concerning whether the contents of application for an NPDES permit could be coordinated with, and serve to satisfy in part, the Act's application requirements. Those discussions have not yet been concluded. See also, the Preamble to Sections 770.12 and 816.42, for an explanation of the terms of Surface Mining Act coordination requirements with other laws.

I11(c) A number of commenters expressed concern over the definition of "general area'' in the proposed rules.

The term "general area'' is based upon the requirements of the Act at Sections 507(b)(11), 508(a)(13), and 510(b)(3), that the regulatory authority make an assessment of the probable cumulative impacts of all anticipated mining in the locale around the area for which a particular permit is being sought. "General area'' is used to describe the area for which hydrologic information must be available to the regulatory authority before this assessment can be made. Legal authority for this definition is Sections 102, 201, 503, 504, 506, 507, 508, 510, 515, 516, 517, 522 and 717 of the Act.

The basis and purpose for the definition were generally discussed at 43 FR 41687 (Sept. 18, 1978). Under the proposed rule, the definition would ordinarily have been tied to the scope of the Department's Office of Water Data Coordination "catalog unit.'' As a result of public comments, the final rule utilizes a definition that will ordinarily be much narrower in scope, with appropriate distinctions drawn between surface and ground water.

(i) The Act differentiates between "onsite'' and "offsite'' data and specifies that both types of hydrologic data are required before the regulatory authority can make the necessary assessment. See Sections 507(b)(11), 508(a)(13), and 510(b)(3), of the Act. Because "onsite'' data refers to data obtained from the area that would be eventually permitted, i.e., the mine plan area, "offsite'' data are those data obtained from outside the mine plan area, (see the discussion on the definition of mine plan area in the Preamble to Section 701.5).

In this context, the inner limit of the "general area'' is defined as the same as and contiguous with the outer limit of the mine plan area. Therefore, it is necessary to define the outer limit of the "general area'' in terms of the area which will provide sufficient quantities and kinds of hydrologic data for reasonably assessing the environmental impacts of all anticipated mining in the "general area.'' The "general area'' must also be large enough to establish locations which provide baseline data that are not anticipated to be hydrologically or otherwise initially affected by proposed mining operations. This is needed to: (a) Provide base-line information on the normal, ambient hydrologic conditions of the area prior to mining, to determine potential impacts of proposed mining operations, and (b) Analyze what additional information (if any) the regulatory authority may deem necessary to require the operator to gather for the determination of the probable hydrologic consequences.

On the other hand, the area should be small enough to eliminate "masking'' or confounding effects from other existing mining activities or non-mining hydrologic influences. This is important, because the applicant, when developing its "determination'' under Section 507(b)(11) of the Act, needs to analyze only the impacts of its mining operations on the hydrologic balance; the regulatory authority makes the "assessment'' involving the cumulative impacts of all anticipated mining in the area. If the area is not delineated properly to account for the cause-effect relationship for a particular operation, then it will be impossible for the regulatory authority to evaluate the determination and approve the permit application or to make a proper assessment of cumulative impacts of all operations in the area. For example, influences of domestic, municipal, or non-mining industrial activities tend to "mask'' the natural hydrologic regime and make it difficult to isolate the hydrologic impacts that may be attributed to mining from those due to other causes.

{15010}(ii) The difficulty of arriving at a hydrologically sound and workable, blanket definition of "general area'' is compounded by the extent of diverse hydrologic and topographic variability throughout the coal fields of the nation, especially in Appalachia. Adding further complexity is the fact that ground water and surface water basins are not necessarily geographically identical. A topographic drainage basin (watershed) will drain surface water to a discrete "outflow'' point between drainage divides. However, depending upon the subsurface angle and direction of underlying geologic strata within that same topographic basin, downward percolating ground water will intersect with the geologic strata and may flow outside and into one or more other topographic basins. (Hjelmfelt and Cassidy, 1975. p. 6 and figs. 1, 2; U.S.G.S., 1974b, pp. 20 62 and figs. 7 18; Van Voast, 1974, pp. 16 23; Van Voast, 1975, plates 1, 5, 7, 9, 11; Bur. Mines, 1977b, pp. 50 51, 63; Bur. Mines, 1978, pp. 184 202). Thus a ground water "basin'' may be larger than the surface water topographic basin or watershed.

On the other hand, underlying impermeable strata may isolate the ground water from the surface water, resulting in two independent systems that limit or confound indirect-observation techniques. In this case, the ground water basin may be smaller in areal extent than the topographic basin. Often a series of "perched'' ground water zones can occur. (Musser, 1963, p. A 20; McWhorter, et al., 1977, pp. 18 22; Bur. of Mines, 1978, p. 184; USGS, 1974b, pp. 20 63, figs. 7 18). Thus, it is imperative that the surface water basins and the ground water basins be separately delineated because of the possible differential flow directions of surface and ground water (Chow, V. T., 1964, pp. 4 23).

(iii) The definition of "general area'' involved, in addition to the above discussion, consideration of: (1) the influence of mining activities upon watersheds in which permit areas are located, and nearby unmined watersheds that may be adversely impacted by practices associated with those activities, such as disposal of excess uncontaminated water or contaminated water; (2) the possibility that alteration of ground water recharge zones and rates in mined watersheds may adversely influence the ground and surface water availability in non-mined watersheds; and (3) topography, because of its influence on flow, storage, and retention of surface water.

The concept of "watersheds containing perennial streams'' is used in the definition to assure that the scope of the hydrologic assessment is not limited to the flow of water in a single channel of a small wet-weather stream, but includes the total watershed of larger streams. This is needed because the Act protects particularly the public uses of streams (see sections 508(a)(13), 717(b)) which are more likely directly related to larger streams. Some of the difficulties in assessing cumulative impact of anticipated mining, particularly in areas where mining has been done prior to the approval of State programs, can be overcome by using unaffected or "control'' watersheds for comparative purposes. Data from such areas may be required to provide an understanding of the hydrologic differences between mined and non-mined area (Grubb and Ryder, 1972, pp. 17 33). This concept is inherent in the term "areal extent'' as used in the definition.

(iv) The Office of Water Data Coordination (OWDC) of the U.S. Geological Survey (USGS) uses a system of catalog units for grouping approximately equal-sized surface water sub-basins with approximately equivalent rainfalls within regional areas. The catalog units are used as a basis for segregation of water quality and steamflow data in the NAWDEX and WATSTORE computer programs of the USGS. Work also is underway to make the Environmental Protection Agency's STORET water data storage and retrieval system compatible with these units. I11The OWDC catalog units are valid criteria for making rational hydrologic sub-divisions of the nation and, therefore, may serve as a guideline for the hydrologic data acquisition mandated by Section 507(b)(11) of the Act. The Office believes that although mandatory assessment of entire catalog units is not always required, as they were under the proposed rule, the catalog units should be used by the regulatory authority for reference to mine area locations, and data compilation, storage, and retrieval.

(v) In order to fully utilize the advantages inherent in the catalog unit system and, at the same time, assure adequate data coverage at a reasonable level of costs, the Office recognizes that the regulatory authority may require data from a "general area'' that will often be more limited geographically than the boundary of the catalog unit. For example, where mining activities have been limited to either the extreme upstream or downstream reaches of a sub-basin because of local geologic or topographic conditions, the regulatory authority may make its assessment using data from that relatively small percentage of the total drainage area of the sub-basin catalog unit in the locale of proposed mining.

The Office recognizes that, in this context, several "general areas'' may exist in one catalog unit. In such cases, the regulatory authority may make an assessment of the probable cumulative impact of mining by considering the cumulative data from more than one "general area.'' Depending upon the location of the proposed permit area, data may or may not be required at the downstream terminus of the sub-basin.

The Office also recognizes that where proposed permit areas lie in more than one catalog unit or overlie areas subject to interbasin transfer of ground water, it may necessitate the use of data from more than one catalog unit and, in such cases, the "general area'' may extend beyond the limit of one catalog unit.

(vi) All commenters, except one, construed "general area'' to mean the area from which hydrologic data must be collected or obtained by the permit applicant. It is important to note that "general area'' is used to define the area on which the regulatory authority must make an assessment of the probable cumulative impacts of all mining in the area and does not define the area from which the permit applicant itself must collect hydrologic data. The permit applicant may or may not be required to make use of general area data in order to make a determination of the probable hydrologic consequences in relation to a specific mine. ( See H.R. Rept. No. 95 218, 95th Congress, 1st Session at 64 (1977); and discussion in Preamble to Sections 779.13 779.16).

A number of commenters expressed concern over the vagueness of the geographic coverage of the "general area'' and stated that the imposition of the catalog unit system as the sole criterion for data collecton would result in unjustified costs and the acquisition of irrelevant data. The Office agreed with this position, believing that, in many instances, the excessive amount of data that would result from evaluating entire catalog units, or only that part of a catalog unit downstream from a proposed mining activity, would result in an unjustified expense for data that would not be needed for assessing the cumulative impacts of all anticipated mining in the area.

A commenter stated that OWDC catalog units are "inappropriate,'' because they may be much larger than the area anticipated to be impacted by mining activities. This commenter also suggested that hydrologic assessment data be provided only for the watershed in which the mine is located, downstream to a point where the mine area comprises ten percent of the watershed. The Office accepts this position in part, realizing that many catalog units are indeed much larger than the area to be impacted. However, the Office rejects the concept of data acquisition based on a fixed percentage of drainage, because it is felt that such an approach would not provide the flexibility needed for different hydrologic and geologic settings, where the percentage of impacted area may vary greatly. This is especially true for those basins which have a "dynamic'' boundary situation as discussed above in paragraphs (ii) and (iii).

{15011}A few commenters suggested that "general area'' should be limited to the watershed surrounding a proposed permit area and that a "tie-in'' to the OWDC catalog is "capricious in that said document is everchanging . . . and is not a common reference document available to the general public nor the coal industry.'' The Office believes that limiting hydrologic data requirements to the watershed surrounding the proposed permit area may fail to account for changes resulting from the interbasin movement of ground water and possible impacts on wells and streams in adjacent watersheds, particularly during base-flow conditions. The Office does not feel that the OWDC catalog is "capricious''; it will be made readily available to the public and industry by OSM and other involved Federal and State agencies under 30 CFR 779.13(b) and 783.13(b).

A few commenters opposed the proposed definition of "general area'' on the ground that it would require compilation of data on a "virtually limitless area'' not contemplated by Section 507 of the Act. That was not true, because the USGS catalog units have discrete definitions. In any event, the final rules definition insures a reasonably-ascertainable limit for both surface and ground water applications.

(vii). Technical literature considered in development of the definition of "general area'' were: 1. Chow, V. T., 1964, Handbook of Applied Hydrology, McGraw-Hill Book Co., New York, Sections 1 29 (various pagings).

2. Grubb, H. F. and Ryder, P. D., 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. 3. Hjelmfelt, A. T., Jr., and Cassidy, J. J., 1975, Hydrology for Engineers and Planners, Iowa State University Press, 210 pp.

4. McWhorter, D. B., and others, 1977, Surface and Subsurface Water Quality Hydrology in Surface Mined Watersheds, (Prepared by Colorado State University, Fort Collins, CO), U.S. Environmental Protection Agency Project R802175 Report, 357 pp.

5. Musser, J. J., 1963, Description of Physical Environment and of Strip Mining Operations in Parts of Beaver Creek Basin, Kentucky, Chapter A in Hydrologic Influences of Strip Mining, U.S. Geological Survey Professional Paper 427 A, 25 pp.

6. U.S. Bureau of Mines, 1977b, Research on 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 in Cooperation with the U.S. Geological Survey), U.S. Bureau of Mines Contract No. JO166055 Report, 68 pp.

7. U.S. Bureau of Mines, 1978, Research on Hydrology and Water Quality of Watersheds Subjected to Surface Mining, Phase 1: Premining Hydrologic and Water Quality Conditions, (Prepared by U.S. Department of Agriculture and Ohio Agricultural Research and Development Center, U.S. Bureau of Mines Contract Nos. JO166054 and JO166055 Report, 296 pp, and Appendixes A O).

8. U.S. Geological Survey, 1974b, Shallow Groundwater in Selected Areas in the Fort Union Coal Region, U.S. Geological Survey Open-File Report 84 48, 72 pp. and illustrations and tables.

9. 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 Geology Bulletin No. 93, 23 pp.

10. 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 No. 93, 31 pp.

(d) The definition of principal shareholder has been moved to this Section from Sections 778.5 and 782.5 of the proposed regulations. It also has been changed to cover beneficial owners of shares, as well as owners of record. This change is based on comments suggesting focus on all those who exert control on the applicant and the long experience of the Securities and Exchange Commission (SEC) in administering the Securities Exchange Act of 1934 (15 U.S.C. Chapter 2B). That experience led the SEC to require disclosure of both owners of record and beneficial owners of securities. The SEC's regulations for determining beneficial owners are set forth at 17 CFR 240.13d 3.

OSM believes that the regulatory concerns which led the SEC to promulgate this regulaton are similar to the basis for Section 507(b)(4) of the Act, which requires disclosure of persons owning 10 percent or more of any stock in a surface mining operation.

Because management control of a company can be exerted even by beneficial owners of 10 percent or more of such stock, OSM has decided to require that such ownership also be reported by permit applicants. SECTION 770.6 (6) With respect to Section 770.6, few commenters noted that theregulations contain no references to the Small Operators Assistance Program under Section 507(c) of the Act. A reference to this program has been added to Section 770.6 with a description by referring to Part 795, which was published along with the interim program regulations on December 13, 1977 (42 FR 62710) and remains unchanged for the permanent program.

SECTION 770.12 (7)(a) Section 770.12 implements several Sections of the Act which require regulatory authorities to establish a process for coordinating the review and issuance of permits under the Act with those under any other Federal or State permit process. In addition, this Section implements the requirements of certain other Federal laws which impose duties upon entities implementing the SMCRA, to ensure protection of resources regulated under those other laws. Statutory authority for Section 770.12 is Sections 102, 201, 501, 503, 504, 505, 506, 508(a), 509, 510, 513, 514, 515, 522, 523, 701, 702, and 707 of the Act and the statutes identified at Sections 770.12 (b) and (c).

(b) A few commenters suggested that the wording "Federal Programs'' in the first sentence be deleted. Because this Section relates to both Federal and State programs, the language has been changed to "regulatory programs.'' (c) A commenter suggested that Section 770.12 be revised to consider mining in national parks. This comment has been rejected as unnecessary, because mining in national parks is prohibited in Section 522(e)(1) of the Act and 30 CFR 761.11.

(d) A few commenters contended that Section 770.12 should mention Federal procedures for the protection of historic and cultural properties (36 CFR Part 800). This comment also has been rejected as unnecessary, because Section 786.19(e) already prohibits permits which allow mining on areas included in or eligible for the National Register of Historic Places, except as provided for in Section 761.11.

(e) One commenter suggested that, in order to coordinate the various environmental provisions of the Act, OSM should delegate its authority over air, water and solid waste to other appropriate Federal agencies. This comment has been rejected, because OSM cannot delegate any authority, however limited, except as authorized by the Act. Section 515 does require that surface coal mining and reclamation operations be regulated under State and Federal programs for air, Sections 515(b)(4), 515(b)(23); water, Sections 515(b)(4), (5), (8), (9), (10), (13), (15)(c)(iv), (17), (18), (24); and solid waste, Sections 515(b)(4), (10), (11), (13), and (14). The Act does not allow for delegation of authority under these provisions to any entity other than the regulatory authority. However, OSM is currently developing procedures for appropriate, detailed coordination with EPA.

{15012}(f) A few commenters questioned whether obtaining all permits under other laws is a prerequisite to issuance of a permit under the Act and Section 770.12. A State is not required under the Act to delay any permitting procedure pending the issuance of permits by agencies under other laws, unless the Act's permit would authorize the operator to take actions in conflict with the more stringent requirements of those laws. Where such a conflict occurs, the State is empowered to withhold issuance of the Act's permit under the Supremacy Clause of the United States Constitution (which makes Federal law supreme over inconsistent State law) and Sections 503 and 702 of the Act. State law cannot lawfully require the regulatory authority to issue a permit within a specified time, if a requirement of Federal law would operate to prohibit issuance of the permit.

It should be clearly noted, however, that under Section 510(c) of the Act and Sections 786.19(g) and (i) of the regulations, the State regulatory authority is required to withhold a SMCRA permit, if the applicant operates other coal mines in violation of other laws relating to air or water environmental protection. Thus the State regulatory authority may have to withhold issuance of the Act's permits, because of lack of concurrence from Federal or State agencies, on a basis independent from Section 770.12 of the final regulations.

(g) A commenter objected to Paragraph 770.12(b), arguing that the planning requirements cited there do not relate to permitting and are, therefore, not authorized under the Act. The Office does not agree and has retained these in the final rules.

(i) Section 208 of the Clean Water Act (CWA) requires that the States prepare and obtain approval of the Administrator, EPA, of "areawide waste treatment management plans,'' covering a variety of water pollution problems. It is to be the system for a national, comprehensive water quality planning and control process for "non-point'' sources of water pollutants. Among other elements, the various State plans are to identify and provide for controlling water pollutants in non-point source discharges (e.g., "runoff'') from mining activities (Section 208(b)(G), CWA). In addition, these plans are to provide the primary methods for the regulation of the discharge or other placement of dredged or fill material into navigable waters. Section 208(b)(4)(B) and (C). Dredging and filling is, of course, a common activity associated with coal mining in some areas of the country. Thus, Section 208 plans will clearly have to contain requirements in the regulation of numerous aspects of coal mining operations. (It is noted that EPA has, by policy memorandum, advised its Regional Offices that State reclamation plans and State programs under Titles IV and V of the Act will be deemed to satisfy Section 208, CWA plan requirements for coal mining in the States).

Section 303 of the CWA provides for a national, comprehensive water quality planning and control process that complements Section 208 plans, by covering point sources. Under Section 303(e), the States must establish a continous planning process to ensure that point sources of pollution are appropriately controlled through the imposition of effluent limitations (Section 303(e)(3)(A)), coordination with Section 208 plans (Section 303(e)(2)(B)), and other measures. Coal mining, of course, results in point source discharges, when water is discharged through discrete, confined conveyances.

(ii) The commenter objecting to Section 779.12(b) asserted that inclusion of plans under Sections 208, 303(e) of the CWA was unauthorized because Section 503(a)(6) of the Act refers only to coordination with "other Federal and State permit processes,'' and further asserted that neither Section 208 nor Section 303(c) required permits.

This argument is without merit. First, Section 779.12(b) is authorized under Sections 201(c)(12), 514(h), and 515(b)(10) of the Act, in addition to Section 503(a)(6). In any event, inclusion of a requirement in the OSM regulations to coordinate the Act's Sections 208 and 303(e) of CWA plans is authorized under Section 503(a)(6) of the Act because Sections 208 and 303(e) plans do constitute elements of a ". . . Federal or State permit process applicable to surface coal mining and reclamation operations.'' See Section 503(a)(6) of the Act.

Under Section 208(b)(2)(G)(ii), State plans are to include ". . . procedures and methods . . . to control . . .'' mine-related sources of pollution. Individual States may well decide to specify permit systems in their plans as the "procedure and method'' to control mine-related pollution. Indeed, as indicated above, the EPA expects that the Act's State programs and, therefore, the Act's permits will be used in many States to satisfy Section 208 planning requirements. Furthermore, Section 208 plan provisions are incorporated directly into, and become elements of, the NPDES permit system requirements of Sections 401 et seq.

of the CWA, 33 U.S.C. Section 1341 et seq.

Under Section 308(e), CWA, no NPDES permit may be issued if it conflicts with a Section 208 plan requirement. Thus, Section 208 will be part of a "Federal or State permit process'' under Section 503(a)(6) of the Act.

Section 303(e), CWA plans also are clearly subject to coverage under the Act. First, a satisfactory Section 303(e) plan is a necessary element of any State NPDES permit program. Section 303(e)(2), CWA. Second, the plans must provide for the imposition of effluent limitations and schedules of compliance on discharges. Section 303(e)(3)(A), (F), CWA which are implemented through the NPDES permit system. See Section 402(a)(1), (b)(1) of the CWA. Thus, Section 303(e) plans are critical elements of the NPDES "permit process'' and subject to inclusion within the coordination requirements of Section 503(a)(6) of the Act.

(h) With respect to Section 770.12(c), comments asserted that none of the laws cited there require permits and, therefore, this paragraph is beyond the scope of Sections 503(a)(6) and 504(g) of the Act. It also was contended that none of these laws apply to actions of State agencies, thereby implying that this Section should apply only to Federal programs and Federal lands programs. These arguments mostly have been rejected, on the basis of the Secretary's interprettion of the following statute, three of which he administers: (i) The Endangered Species Act of 1973, as amended, 16 U.S.C. Section 1531 et seg. (ESA): ESA contains forceful provisions designed to protect endangered and threatened species of plants and animals, entitled to protection by virtue of "listing'' by the Secretary of the Interior. Its principal operative provision is Section 7(a) (16 U.S.C.A. 1536(a)).

Pursuant to the ESA, the U.S. Fish and Wildlife Service (USFWS) and the National Oceanic and Atmospheric Administration (which has jurisdiction over listed species not relevant to OSM programs) have published regulations implementing Section 7 consultation requirements. (See 43 FR 870 876, January 4, 1978). Under these regulations (50 CFR 402.20), examples of activities which may require consultation include: (1) actions intended to conserve listed species or their habitat; (2) the promulgation of regulations; (3) the granting of licenses, contracts, leases, easements, rights-of-way, permits, or grants-in-aid; or (4) actions directly or indirectly causing modifications to the land, water, or air. {15013}Because OSM is required to insure that SMCRA permits under Federal programs must be issued in accordance with ESA requirements, this statute provides authority to promulgate Section 770.12(c) to accomplish that result. First, OSM can issue regulations under Section 7(a) of ESA itself, as it provides for action by the Secretary to "administer'' his non-ESA programs to further the purposes of the ESA. Second, Sections 102, 515(b)(10), 515(b)(17) and 515(b)(24) of the Act all provide authority to insure that Title V regulatory programs under the Act provide for protection of fish and wildlife under OSM's implementing regulations.

With regard to State programs, State permits are covered by the opening sentence of Section 7(a) of ESA, which provides that "the Secretary shall review other (i.e., non-ESA) programs administered by him and utilize such programs in furtherance of the purposes of the Act.'' State programs will be part of the permanent national regulatory program under Title V of the Act and, therefore, will be among the other programs which must further the purposes of ESA.

Even after a State program is approved, the Secretary, through OSM, will continue to administer those programs, by conducting inspection and enforcement actions in the States, funding State programs, and conducting oversight activities to ensure that the States are adequately enforcing State program provisions. Furthermore, permits issued under State programs are actions authorized, funded, or carried out by a Federal agency, as defined in 50 CFR Section 402.02(a).

The regulation covers the "promulgation'' of the OSM national regulations, and because State programs will be adopted as Federal rules, the approval of State programs. Therefore, OSM must insure that State programs contain appropriate requirements to prevent jeopardizing listed species and destruction or modification of critical species' habitat. In addition to the direct authority of ESA and the USFW's regulations, OSM also has relevant authority under various provisions of the Act. (See Sections 102, 515(b)(17); and 515(b)(24)).

In conclusion, OSM has the authority required to ensure the coordination of ESA requirements with the issuance of SMCRA permits under Federal and State programs. Other Sections implementing ESA include: 30 CFR 776.13(b)(2) (Coal exploration approval); Sections 780.16(a)(1), 784.20(a)(1) (Reclamation plans); Section 786.17(a) (Regulatory authority permit review coordinations with fish and wild life agencies); and Section 786.19(o) (Permit approval criteria).

(ii) The Fish and Wildlife Coordination Act, 16 U.S.C. Section 661 et seq. (FWCA): FWCA is also administered by USFWS. The operative provision is Section 2(a), 16 U.S.C. Section 622(a). That requires, with respect to actions covered by it, that consultation occur with USFWS and the State fish and wildlife management agency prior to the issuance of a Federal permit or license. The statute covers projects conducted by private enterprises when a Federal license or permit is needed, so persons conducting coal mining would be subject to the consultation requirements.

The FWCA consultation requirement has been closely integrated into permitting requirements under the Federal Water Pollution Control Act (FWPCA), as amended (33 U.S.C. Section 1251 et seq.

), for all NPDES permits. Prior to obtaining those permits, the applicant must go through the FWCA consultation process. Because FWCA consultation requirements for NPDES and dredge and fill permits (which many coal mining operations must obtain), OSM has authority to specify FWCA as one of the statutes for which coordination must be effected with SMCRA permit applications under Section 503(a)(6) and 504(g). Both of these Sections authorize OSM to promulgate regulations to insure that SMCRA permits are "coordinated with other State and Federal permit processes.'' To ensure that requirements of SMCRA permits are coordinated with NPDES and dredge and fill permits, OSM has the authority to require that SMCRA application reviews be coordinated with applicable requirements of FWCA.

(iii) The National Historic Preservation Act of 1966, 16 U.S.C. 470 et seq. and Executive Order No. 11593 (NHPA) NHPA establishes a National Register of Historic Places, requiring all Federal agencies to take into account the effect of agency "licensing'' (which includes "permitting'') on any facility listed, or eligible for listing in the National Register. Also, Section 522(e) of the Act prohibits mining that will adversely affect public parks or historic places on the National Register, unless approved jointly by the regulatory authority and other agencies with jurisdiction over the park or place.

In addition, Sections 102, 201(c) and 501(b) provide authority for Section 770.12(c). Section 201(c) gives the Secretary authority to promulgate such Section regulations as may be necessary to carry out the purposes and provisions of the Act, while Section 501(b) requires the Secretary to promulgate a regulatory program based on and conforming with, the provisions of Title V. One of the purposes of the Act is to "establish a national program to protect society and the environment from the adverse affects of surface coal mining operations'' (Section 102(a)). Other relevant purposes relate to protection of the rights of persons with a legal interest in land and appurtenances thereto (Section 102(b)), and protection of the environment (Section 102(d)). Section 770.12(c) serves to carry out these clauses, with respect to National Historic Register matters.

(iv) Archaeological and Historic Preservation Act of 1974, 16 U.S.C. 469 1 (Moss-Bennett Act) The Moss Bennett Act provides a means for private parties or the Federal Government to perform actual recovery of archaeological material and data, as for example through surveys, excavation, and transportation to a museum. Upon receiving information as to the imminent loss or destruction of significant data, the Federal licensing agency or department may conduct a survey and salvage program, or transfer funds to the Secretary for that purpose.

Unlike NHPA, Moss-Bennett does not appear to extend, in general, to State program permitting. It applies only to a Federal agency's own activities, in connection with a Federally-licensed project, activity, or program which may adversely affect enumerated resources. Although mines permitted under a State program may arguably be Federally-licensed activities and Federal agencies may be involved in the permit review process, these agencies' activities would not themselves cause the adverse affect on the enumerated resources protected under Moss-Bennett. The sole apparent exception to this would be when OSM approves a State program permit embodying an experimental practice under Section 711 of the Act and 30 CFR 785.13. However, in such cases OSM, not the State regulatory authority, would be responsible for compliance with Moss-Bennett. Therefore, OSM has concluded that Moss-Bennett should not be made applicable to State program permit requirements under Section 770.12(c).

SUBCHAPTER G -- SURFACE COAL MINING AND RECLAMATION OPERATIONS PERMITS AND COAL EXPLORATION PROCEDURES SYSTEMS, 30 CFR PART 771 -- GENERAL REQUIREMENTS FOR PERMITS AND PERMIT APPLICATIONS INTRODUCTION 1. This Part implements Sections 102, 201, 501(b) 502, 503, 504, 505, 506, 507, 508, 509, 510, 511, 512, 513, 514, 515, and 516 of the Act. It sets forth the criteria for obtaining and utilizing permits under permanent regulatory programs and the general requirements for permit applications and fees. General discussion of the authority, basis, and purpose of this Part is at 43 F.R. 41687 41689 (Sept. 18, 1978) 2. Two paragraphs of proposed Part 736 (736.4(c); 736.14(b)) which concerned permitting requirements were moved to Part 771 at sections 771.13(a) and 771.15. Succeeding sections in Part 771 were re-numbered. The general authority, basis, and purpose for the sections of Part 736 which were transferred was described in the Preamble to the proposed regulations. 43 F.R. 41679 41680 (Sept. 18, 1978). In addition, material on the types and scales of maps and cross-section plans, in general, and the need to break down map areas according to past mining, which was located in various sections of proposed Parts 779, 780, 783, and 784, has been consolidated at Section 771.23(e) of the final rules.

3. Substantial comment was received on Part 771 and some significant modifications were made as discussed in detail below. Some sections received little or no comment, however, and remain unchanged from the proposed regulations, with the exception of minor editorial changes to clarify their meaning.

SECTION 771.2 4. On Section 771.2, a commenter asked whether facilities ancillary to a surface mining and reclamation operation (such as a storage shed for central distribution of parts) are subject to the permitting requirements.

These facilities are subject to the permitting requirements to the extent that they fall within the definition of surface coal mining and reclamation operations in Sections 701(26) (27) of the Act and Section 700.5 of the final rules.

SECTION 771.11 General requirements for permits_operations.

1. Authority, basis, and purpose for this section were generally discussed at 43 F.R. 41687 (Sept. 18, 1978). Minor rewording of this section was made to improve its clarity.

2. One commenter questioned whether reclamation of abandoned mines would require a permit. If activities defined as surface coal mining and reclamation operations under the Act and in Section 700.5 are carried out, regardless of the previous use or present condition of the land, then a permit under the Act is required. However, the reader is referred to 30 CFR Part 874, in particular, and Subchapter R of this Chapter in general, for requirements for abandoned mine reclamation work to be conducted under Title IV of the Act.

3. Several commenters stated that the requirement for having a valid permit to mine coal within eight months from the date on which a regulatory program is approved by the Secretary was much too short. Because two months are allowed for operators to file applications after the program is approved, six months remain for the regulatory authority to review the application. Under Section 506(a), however, permits for existing mines continue in effect, if the regulatory authority does not act within six-months. Several commenters felt that the six-month review period was too long. The comments were rejected, because these time limits are required by Sections 502(d) and 506(a) of the Act.

4. A commenter suggested amending Section 771.11 to explain that cooperative agreements are covered. This suggestion was rejected as unnecessary under 30 CFR 745, as a cooperative agreement provides for the application of a State program to Federal lands. State programs are "regulatory programs'' under Section 701.5 of the final rules and covered by Part 771.

5. Some commenters suggested that existing operations be allowed to obtain "revised interim'' permits under the permanent regulatory program, arguing that "re-permitting'' is simply a duplication with no real benefit. Sections 502(d) and 506(a) of the Act explicitly require that all operations existing eight months after the permanent program comes into effect must obtain a permit under a State or Federal program. State programs and Federal programs are defined in Section 701 of the Act as programs promulgated under Sections 503 and 504 of the Act, that is, under the permanent program. The permanent program provides specific, detailed requirements for permit applications and public participation in review of those applications (see Sections 507, 508, 513 and 514 of the Act), which were not applicable in the interim program. Furthermore, under Section 510(b) of the Act, an applicant must show compliance with all of the Act's performance standards, many of which were not in effect during the interim program. ( Compare Section 502(c) with 515 and 516 of the Act.) Thus, permits under the interim program cannot satisfy the requirements of the permanent regulatory program.

SECTION 771.13 Continued operation under interim permits. 1. As explained in the introduction, Section 771.13(a) is a new section derived from Section 736.4(c) of the proposed regulations. It was moved to Subchapter G, where it logically belongs, because it provides for the continued effect of permits issued under the interim program. The proposed version of Section 771.13 has been re-numbered as 771.13(b) in the final regulations.

2. Section 771.13(a) is promulgated under Sections 102, 201, 501(b), 502, 503, 504, 506, 510, 515, 516 and 701 of the Act. It implements the provisions of Section 502(f), of the Act, to cover permitting in the period between the Secretary's disapproval of a state program submission under 30 CFR 732 and implementation of a Federal program for the state involved.

3. As proposed, the rule would have precluded issuance of permits during judicial review of the Secretary's institution of a Federal program. A commenter correctly pointed out that this misinterpreted Section 502(f) of the Act, suggesting that the preclusion on issuance of permits applies, instead, to the period which includes judicial review of a dissaproval of a State program submission until the Secretary's promulgation of a Federal program. The final rule has been modified accordingly.

4. Several commenters suggested that proposed Section 736.4(c) be revised, to allow the states or OSM to issue new permits during the period between disapproval of a State program and implementation of a Federal program. That suggestion is not legally possible under Section 502(f) of the Act. Further, interim program permits which lapse during that period continue in full force and effect, and the Secretary must, in any event, institute a Federal program no later than June 3, 1980 (see Section 504(a), of the Act). Therefore, the requirement of Section 736.4(c) should not cause substantial problems for the industry.

5. Section 771.13(b)'s authority, purpose and basis were explained at 43 F.R. 41687 41688 (Sept. 18, 1978). A few commenters suggested that the regulation be amended to allow for continued operation under permits issued before the Act, as well as for permits issued under the interim program regulations, if the regulatory authority fails to act on the permanent program permit. Such a change would not meet the intent of Congress under Sections 102, 502, 503, 504, and 506 of the Act, because it was contemplated that operations commenced under pre-Act permits be regulated to demonstrate compliance with the Act's interim program requirements. ( See H.R. Rept. No. 95 218, 95th Cong. at 86 1977). Thus, 30 CFR 720.12 requires States to revise pre-Act permits to comply with the interim program.

{15015}6. Several commenters requested that the reference in proposed Section 771.13(a) to a "complete'' application be deleted. This comment was rejected. Public participation and the review process cannot go forward until a "complete application'' is on file, as required by sections 502(d), 513, and 514 of the Act. Ordinarily, those processes will take approximately six months to conclude, so that complete applications are needed within two months of institution of the permanent regulatory program if the regulatory authority is to meet the eight-month deadline of Section 506(a) of the Act. (See also the discussion of Section 771.21 below.) 7. Some commenters requested that Section 771.13(b)(2) be amended to refer to the final decision of the regulatory authority. These comments were rejected as contrary to Section 506(a) of the Act. If the regulatory authority decides against an applicant under 30 CFR 786.17, 786.19, 786.21, and 786.23, the operations involved will no longer qualify for the exemption of Section 771.13(b). Regarding contentions that the exemption must be preserved pending a final decision under Section 514(c) (e) of the Act, the Office notes that adequate opportunity for a hearing is provided to the applicant in 30 CFR 787.11, which need not occur prior to the expiration of the exemption given the important public interests at stake. (Compare In re Surface Mining Regulation Litigation, 456 F. Supp. 1310 (D. D.C. 1978).

8. In response to concerns that Congress did not intend for existing operation to cease, pending the initial decision of the regulatory authority on the permanent regulatory program application, the Office has clarified Section 771.13(b) to cover interim permits or "amendments'' thereof. Thus, revisions and renewals of interim program permits can qualify for the exemption of 771.13(b) under the final rules.

SECTION 771.15 Continued operation under federal program permits.

1. Authority, basis, and purpose of this section were discussed at 43 F.R. 41688 (Sept. 18, 1978). A change was made in the main text of the section to specify that the Secretary approves of a state program consistent with 30 CFR 730 732. Commenters also requested that the language of Section 771.15 be changed from "shall'' to "may'' to track with Section 504(f) of the Act. These comments were accepted.

2. Another commenter asked that extension of the 60-day compliance period in Section 771.15(c)(1) be authorized to meet economic considerations. Economic impossibility is not a valid reason for failure to comply with the Act. ( See In re Surface Mining Regulations, 452 F. Supp. 327, 338 339 (D.D.C. 1978). Moreover the rule allows for an extension beyond 60-days for physical impossibility, similar to the delays allowed for existing structures at the commencement of the interim and permanent regulatory programs.

3. The same commenter's request that the 60-day limit be extended to eight months was also rejected. Section 771.15(c)(1) implements the requirements of Section 504(f) of the Act, setting procedures by which additional requirements of a State program that supersede a Federal program can be imposed on persons holding Federal program permits. Section 504(f) provides that those permittees are to be provided a reasonable time to conform their ongoing operations to the State program's additional requirements. OSM has specified 60 days as that reasonable time limit, with a further extension allowed if either (1) the permittee showed that it was physically impossible to comply within 60 days, or (2) the state agrees to a longer time schedule. OSM maintains that 60 days is a reasonable time for operations to meet additional requirements of state programs, because most states will not have as many additional requirements calling for complete redesigns of structures, as in first implementing the permanent regulatory program.

The 60 days will not begin until the regulatory authority issues an order to the permittee. This will not be immediately upon approval of State programs, but rather after the regulatory authority has had time to consider whether its requirements are additional to Federal requirements. In any event, based upon a showing of physical impossibility, the 60-day limit can be waived. OSM believes that allowing more time would seriously delay implementation of the requirements that a State deems necessary to protect the environment. For this same reason, the term "promptly'' has been added to Section 771.15(c)(1) to ensure that the state regulatory authority does not delay in taking this important action. See section 102(a), of the Act.

4. A commenter objected to and another favored the requirement for an adjudicatory hearing in proposed subsection 771.15(c)(2) for the permits that need to be modified when a state program supersedes a Federal program. The Office has deleted the term adjudicatory.

This change leaves to individual states the choice of whether to provide for adjudicatory hearings. Under the United States Constitution, an adjudicatory or informal hearing is not required when an administrative agency acts in a rulemaking proceeding. ( United States v. Allegheny-Ludlum Steel, 406 U.S. 742 (1972); United States v. Florida-East Coast Ry., 410 U.S. 224 (1973)). Thus, a state may implement Section 504(f) of the Act by a rulemaking proceeding applicable to all persons holding a permit from the superseded Federal program. Such an approach is encouraged, because it would allow for the most expeditious and flexible approach for ensuring that additional State program requirements are implemented. Also, this approach will not preclude a State, if it chooses, from providing adjudicatory hearings, if required by State law.

SECTION 771.17 Continued operations under state programs.

Section 771.17 has been moved from Section 736.15(b), because it fits more logically in Subchapter G. The final regulation is otherwise unchanged from the proposed rule.

SECTION 771.19 Compliance with permits.

1. As a result of the addition at Section 771.17 of the final rules, Section 771.17 of the proposed rules was moved to Section 771.19 in the final rules, but remains unchanged. Authority, basis, and purpose of this section were discussed at 43 F.R. 41688 (Sept. 18, 1978).

2. Some commenters suggested adding specifying that the operator need only comply with State program requirements and not 30 CFR Chapter VIII. These suggestions were rejected, because permittees are still responsible for compliance with provisions of 30 CFR Chapter VIII under State programs. Subchapters A, D (in cooperative agreement situations), and L will be directly applicable. Insofar as Subchapters G, J, K, and M are concerned, individual State program provisions implementing these subchapters will prevail.

SECTION 771.21 Permit application, and filing deadlines.T 1. This section was renumbered from section 771.19 of the proposed rules. Its legal authority, basis, and purpose were generally described at 43 F.R. 41688 (Sept. 18, 1978), with the exception of Section 771.21(b)(4). The latter provision is based on Sections 102, 201, 506, 510, 511, 515, and 516 of the Act and implements principally Sections 506(b) and 511(b) of the Act. It was added in response to a comment on proposed Part 792 (Sections 788.17 788.19 of the final rules), requesting that the time limit at Section 506(b) of the Act be specified in the rules.

2. Several commenters objected to the two-month application filing deadline after initial institution of permanent regulatory programs. These comments were rejected, because that date is required under Section 502(d) of the Act.

{15016}The Office also notes that the final rules have eliminated the provisions for mandatory one full water-year data collection requirements at Sections 779.16 and 783.16. Those provisions were cited by the commenters objecting to the two-month deadline as the major obstacle to meeting that time limit. As with other aspects of the application, that change allows for the use of existing data to extrapolate, through valid predictive devices such as modeling, to satisfy the requirements of parts 779 780, 783 784.

3. Comments suggesting that paragraph (a) be amended to add language regarding the area of lands involved were rejected. The existing text relates only to lands on which operations are to occur after eight months from approval of a regulatory program and is sufficiently clear. A new subparagraph (a)(2) was added to clarify how applications filed after the two-month deadline are to be disposed of by the regulatory authority.

4. Comments were rejected that suggested requirements be lessened under paragraph (a), to allow for the staged submission of application information for up to 17 months after initiation of a permanent regulatory program. Sections 502(d) and 506(a) of the Act contemplate that existing operations will have been reviewed and their applications fully processed and evaluated not later than eight months from institution of a State or Federal program. Public participation requirements, regulatory authority review, and coordination with other governmental entities will require most of the six-months prior to the eight-month deadlines. Those requirements make it imperative that complete applications be provided to the regulatory authority within the two-month deadline of Section 502(d) of the Act and 30 CFR 771.21(a)(1).

5. Several commenters suggested that the application filing deadline for permit renewals be changed from 120 to 60 days. This was rejected, because the 120-days are required by Section 506(d) of the Act.

6. Several commenters objected to specifying a six-month prior deadline for filing applications for permit revisions, particularly noting that the need for permit revisions often arises from unforeseen circumstances. As a result, the final rule has been modified at Section 771.21(b)(3), to leave the exact time to the regulatory authority's discretion, subject to allowing sufficient time for adequate reviews and public participation ( See 30 CFR 788.12.) SECTION 771.23 Permit application_general requirements for format and contents.

1. Authority, basis, and purpose for Section 771.23(a) (d) of the final rules was discussed at 43 F.R. 41688 41689 (Sept. 18, 1978) under Section 771.21, from which the final rule has been re-numbered. As explained at the introduction for Part 771 above, Section 771.23(e) of the final rules was consolidated from various provisions of proposed Parts 779 780, 783 784. Comments about the relationship of Section 773.21(a) to small operators are discussed in the introduction to Part 770, and in specific sections of the permit application requirements of Parts 779 780. However, none of the comments to Section 771.21 of the proposed rules provided data upon which a determination could be made that the amount of land affected by surface mining activities is rationally related to the degree of detail needed in permit applications.

2. Other commenters suggested that the language in Section 771.23(d) which require the disclosure of contacts made by the applicants should be a part of the application only "if appropriate.'' These contacts are not required to be made as part of the application process, but, if they are made, they must be reported in the permit application. OSM determined that this qualification amply responds to the comments, so the commenter's proposed wording has not been added. A commenter suggested a change in subsection 771.23(c) to require full disclosure of the applicant's subcontractors. Because that subsection already requires adequate disclosure of nature of any persons who collect technical data, the relationship between them and the applicant should be apparent to the regulatory authority during the review process.

3. (a) Section 771.23(e)(1) sets forth the general requirements for the format and scale for all maps which must be submitted with a permit application. Authority for this section is Sections 102, 201(b), 501(b), 502, 503, 504, 506, 507(b), 508, 509, 510, 511, 513, 514, 515, 516, 522, and 701 of the Act. High quality map information is necessary to enable the regulatory authority to evaluate the applicant's ability to comply with the performance standards in Parts 816 and 817. (Grim and Hill, 1974, at 17).

(b) In the proposed rules, the scale of maps to be included in the application was specified at several sections. ( See proposed Sections 779.23(b); 780.13(a); 783.23(b); 784.22(a)). Some ambiguities existed. For example, Parts 779 and 783 would have established a minimum scale of 1:25,000 for maps, but did not mention scale for plans or cross-sections. Parts 780 and 784 specified a minimum scale of 1:25,000 for maps and plans, explicitly leaving the scale of cross-sections to the regulatory authority. Parts 779 and 783 would have applied scale specifications to maps of the mine plan and adjacent areas, while Parts 780 and 784 would have specified scales for maps and plans of the permit area.

Also, the scale of 1:25,000 to be established in the proposed rules would have been inconsistent with the 1:6,000 scale of maps required to be made of the permit area under the interim regulatory program. ( See 30 CFR Section 715.11(c)). That would have led existing operations to re-draw maps, if the regulatory authority implementing the permanent program insisted on use of scales in the range of 1:25,000. The matter was further complicated because those sections of the proposed rules which addressed scale specifications did not appear to cover some types of maps and plans which were required in the applications. ( See proposed Sections 779.19(b); 779.22(b); 779.26(a); 780.17; 780.19(g); 780.21(a); 780.25(a); 780.29; 780.33; 780.35(a); 780.37 and corresponding provisions of Parts 783 and 784.) The above problems would have resulted in sets of maps, plans, and cross-sections depicting existing environmental resources under Parts 779 and 780 which could not be compared easily to mining and reclamation operations materials submitted under Parts 780 and 784.

Commenters suggested a range in the scale of maps from 1:25,000 to 1:5,000. Some suggested that there should be a limit on the scale of maps based on the Act (1:24,000 or 1:25,000 as set forth in Section 507(b)(13) of the Act). Others suggested that maps be of a enough scale and detail to reveal all significant matters. These commenters suggested, for example, that detailed plans be shown on maps no smaller than 1:25,000 and that larger scale maps such as 1:10,000 or 1:5,000 be required where the details and complexity of the site or operation cannot be adequately represented at a smaller scale.

(c) In Section 771.23(e)(1) of the final rules, the Office has provided for consistent treatment of all maps required in permit applications. Thus, the ambiguities in the proposed rules are eliminated, as to whether some, but not all, maps must have specified scales.

The most important considerations in regard to map scales is the legibility and usefulness of the information depicted. In order for the regulatory authority to make decisions on permit applications, it is necessary to have mapped information of sufficient detail and accuracy as a basis for making relatively precise estimates of, for example, volume of overburden, waste material and areas needed for topsoil storage. Therefore, the Office has determined that maps of the permit area shall be at a scale of 1:6,000 or larger. This scale is consistent with the smallest scale required by MSHA (30 CFR 77.1200) and with the Act's interim regulatory program (30 CFR Section 715.11(c)).

{15017}Maps of the entire mine plan area and adjacent areas, as opposed to the immediate permit area involved, do not need to be in the same scale. Those portions of the application do not involve the same level of detail on location of operations and other features for areas outside the permit area. Therefore, maps of the remainder of the mine plan and adjacent areas, when required, may be of a scale determined by the regulatory authority (but in no event shall such maps be of a scale smaller than 1:24,000) and must clearly show the lands and waters within those areas. The scale which the Office has chosen for mine plan and adjacent area maps is the minimum scale set forth in the Act ( See Section 507(b)(13)).

(4) The scales of plans and cross-sections are not specified in 771.21(e)(1) and are, therefore, left to the discretion of the regulatory authority. The scale of these materials will necessarily vary for particular facilities and portions of the permit or mine plan area, depending upon the materiality of the issues to which they relate.

(5) The concept of delineation of phases of mining on application maps relates to key dates in the interim and permanent regulatory programs establishing different periods and levels of regulation under the Act. Delineation of those phases in application maps appeared at proposed Sections 780.13, 780.17, 784.11(b), and 784.22. Delineation is required in the final rules as specified at Section 771.23(e)(2).

(a) Section 771.21(e)(2)(i) requires that areas subject to surface coal mining operations prior to the date of enactment of the Act be specified primarily because, if those operations were ceased and not re-started prior to the date of enactment, they are not subject to the Act. Also, if continued, they may be entitled to special treatment under Sections 506(d), 510(b)(5), 510(d)(2), and 522(e) of the Act.

(b) Section 771.21(e)(2)(ii) requires delineation of areas that were mined after the date of enactment, but prior to the effective dates of the interim regulatory program performance and design standards. This is necessary to distinguish operations from those which qualify for the benefits discussed above under Section 771.21(e)(2)(i). Delineation according to the date of either May 3, 1978 or January 1, 1979, is necessary to identify those operations which, if ceased prior to those dates are not subject to the interim or permanent regulatory program design and performance standards. As commenters noted, the proposed specification of February 3, 1978, as a critical delineation date was not appropriate. Instead, the dates of May 3, 1978 (generally applicable), or January 1, 1979 (the date for expiration of the small operator's exemption under 30 CFR 710.12) were used in the final rules.

(c) Section 771.21(e)(2)(iii) requires further delineation of operations areas, for the period from the effective date of the interim regulatory program's design and performance standards until the approval of the permanent regulatory program. Facilities which constitute existing structures constructed during that period may qualify for special treatment under the permanent regulatory program. ( See 30 CFR 701.11(d) (e)).

(d) Finally, delineation is required for those areas which will be affected during the permanent regulatory program. This is based on the generally effective date of design and performance standards of Subchapter K, the first date upon which a permanent program permit must be acquired. ( See 30 CFR 701.11(d)).

(e) Delineation is required under Sections 102, 201, 501(b), 502, 503, 504, 506, 507, 508, 510, 515, 516, 522, and 701 of the Act, so that the public and the regulatory authority can clearly distinguish among the various phases of regulation in reviewing applications and so that the permittees responsibilities for compliance will be clearly stated, if the application is approved.

SECTION 771.25 Permit fees.

1. Authority, basis, and purpose for this section were explained at 43 F.R. 41689 (Sept. 18, 1978). The final rule has been modified to track the language of Section 507(a) of the Act more closely and to serve as the minimum criteria for State and Federal programs. In the proposed rules, those criteria were set forth at 30 CFR 731.14(h)(2) and 732.15(a)(3)(ii).

2. Several commenters suggested that permit fees be either increased, reduced, or eliminated under State programs. One commenter suggested amending the wording to conform exactly to Section 507(a) of the Act. That section provides for a fee less than or equal to the regulatory authority's cost of application review and administration and enforcement of the permit. OSM agreed with this commenter. Section 771.25 was amended to include the exact language of Section 507(a). The remaining comments on Section 771.25 have been rejected. Readers are referred to the OSM regulatory analysis for a discussion of alternatives considered.

SECTION 771.27 Verification of application.

Authority, basis, and purpose for this section were discussed at 43 F.R. 41689 (Sept. 18, 1978). A commenter on this section suggested that it be deleted as unauthorized under the Act and as too onerous for the industry to comply with, in view of the amount of data required. This comment was rejected.

Section 771.27 is authorized under Sections 102, 201(c), 501(b), 506, 507, 508 and 510 of the Act, and is an important tool for the regulatory authority to insure that accurate information is provided by the applicant in seeking to establish its entitlement to conduct operations. It is similar to requirements for SEC reporting under the Federal securities laws and to filing requirements under the NPDES permit system. Moreover, it does not require an absolute guarantee by the individual executing the verification, but rather imposes a due diligence standard for the official to insure that the application is true and correct to the ". . . best of (his or her) information and belief.'' SUBCHAPTER G -- SURFACE COAL MINING AND RECLAMATION OPERATIONS PERMITS AND COAL EXPLORATION PROCEDURES SYSTEMS, 30 CFR PART 776 -- GENERAL REQUIREMENTS FOR COAL EXPLORATION Authority, basis, and purpose for Part 776 were explained, in general, at 43 Fed. Reg.

41689 41691 (Sept. 18, 1978). Section 776.1 specifies the legal effect of Part 776 and explains the applicability of the Part. First, it specifies that Part 776 constitutes the minimum requirements mandated under Section 512 of the Act, by which the Secretary will decide to approve or disapprove State and Federal program components for coal exploration. Second, it specifies that Part 776 will be applicable to coal exploration outside the permit area.

A few commenters felt that Part 776 should not apply to coal exploration in areas that are already covered by permanent regulatory program permits issued pursuant to Title V of the Act and Parts 771 and 778 786 of Subchapter G.

Once a person has received a permanent regulatory program permit to conduct surface mining and reclamation operations, the permit terms and conditions control the performance of the operation. Therefore, the procedures of Part 776 would be unnecessary for exploration conducted within the permit area. Exploration within a permit area should have been planned as an integral part of the surface coal mining and reclamation operations, not handled in a piecemeal, separate proceeding.

{15018}As a result, Section 776.1 was revised in the final rule so as to exclude exploration which occurs inside an active permit area. Those operations instead are to be regulated under Parts 771 and 778 786 of Subchapter G.

SECTION 776.3 Responsibilities.

This Section explains the responsibilities of both the industry and the regulatory authority under Part 776. Several commenters suggested that the proposed version of this Section be modified in Paragraph (a), to limit its applicability only to coal explorations which "substantially disturb the natural land surface.'' This suggestion was rejected as unnecessary because Section 776.3(a) merely requires persons seeking to conduct or already conducting coal exploration to comply with the rest of the provisions of Part 776.

As they appear in the final rule, the operative provisions of this Part are limited to a relatively simple notification system except for coal exploration which substantially disturbs the natural land surface. (see Section 776.1.).

SECTION 776.11 General requirements: Exploration of less than 250 tons.

This Section established minimum requirements for regulatory procedures to be followed by persons prior to conducting coal exploration involving the removal of less than 250 tons of coal, specifies compliance responsibilities for those persons with respect to the applicable performance standards, and requires appropriate public notification by the regulatory authority.

Section 776.11(a).

As adopted, Section 776.11(a) requires any person before conducting coal exploration removing less than 250 tons from one specific area, to file with the regulatory authority a notice of intention to explore. Several comments were received which suggested that this paragraph be limited to apply the notice-filing requirement only to coal exploration which "substantially disturb the natural land surface.'' These comments were rejected. Under OSM's authority to issue regulations to carry out the purposes of the Act, OSM believes the requirement to file a notice of exploration is reasonable. It is based on the need to know where exploration is being conducted in order to determine if it will substantially disturb the natural land surface and adversely affect the environment. Furthermore, the requirement is not burdensome because it does not subject the person conducting coal exploration to the performance standards in 30 CFR Part 815 unless the exploration substantially disturbs the natural land surface.

Many commenters also suggested that the geographic area to which Section 776.11(a) would apply be narrowed from ". . . in any one location,'' as specified in the proposed rules, to only the area in which exploration is to be actually conducted. In response, the final rule was revised to apply the requirements for filing of a notice of intention to explore to "the area to be explored,'' to clarify that the exploring entity's obligation to file a notice occurs before entry upon the actual area of the land. However, the Office rejected the extreme of limiting the geographic scope of application of Section 776.11 to only areas where coal will be physically removed, as substantial disturbance to land may occur from actions incident to coal extraction, such as construction of roads and facilities and disposal of debris and waste.

Section 815.4 of the proposed rules specified that the notice of intention to explore would have to be filed with the regulatory authority at least 30 days before commencement of exploration. Several commentors objected to this as being unduly burdensome, arguing that the highly competitive nature of small-scale exploration requires that individual explorers be able to move quickly into the field before attracting other entities. Section 815.4 has been deleted in the final rules, and the Office, in response to the above comments, has decided not to provide for any similar specific mandatory time period in Section 776.11(a). The amount of lead time required for filing of notices of intention to explore will be left to individual regulatory authorities to decide.

Section 776.11(b).

(1) One commenter suggested that reclamation plans be required for all exploration operations and that a new paragraph be added to Section 776.11 specifying this requirement. This comment was rejected. Section 512 of the Act does not require prior regulatory authority approval of a reclamation plan for a coal exploration operation when less than 250 tons of coal will be removed. The notice of intent to explore is to provide information for the regulatory authority to determine whether close surveillance of the actual operation will be needed in the field, not to form the basis of a preexploration decision by the regulatory authority.

(2) Another commenter felt the regulatory authority should be expressly provided with the authority to halt exploration when an inadequate notice of intention is filed, by addition of a new paragraph to Section 776.11(a). This comment was rejected because specific enforcement remedies are covered in Subchapter L of the regulations. Adequate provision is made in that Subchapter for the issuance of notices of violation and, if necessary, cessation orders, in the event of noncompliance with the exploration regulations.

(3) A number of comments were received on the specific elements of the notice of intention to be required under Section 776.11(b). In reviewing these comments, the Office carefully considered the fundamental purposes of the notice requirement. These are, first, to provide the regulatory authority and the potentially affected members of the public with notice of how, when, where, and by whom exploration removing less than 250 tons of coal will be conducted. With these essential elements of information, the regulatory authority and interested members of the public can check, if necessary, the conduct and completion of the exploration activities to ensure that they are reclaimed as required by Section 512(a) of the Act and Part 815 of Subchapter K.

(4) Some commenters argued for greatly expanded items of information in notices under Section 776.11(b), which, if adopted, would have required notices to essentially contain the data and plans required for reclamation plan portions of mining permits under Section 508 of SMCRA. These comments were not accepted, for the most part, because such a high level of detail is not necessary to fulfill the fundamental purposes of the notice reqirement described above. However, it was decided to revise Section 776.11(b) in the final rule to require that the notice specify certain identification data with respect to the persons conducting exploration, so that those persons can be contacted during or after exploration if reclamation practices are not successful.

(5) One commenter objected to use of the term "precise'' as to the type of description required of the area to be explored under Section 776.11(b)(3). This comment was rejected. Precision is needed because exploration areas may be quite small and, therefore, not readily identifiable on an ordinary 1:24,000-scale topographic map unless appropriately qualified with a textual description of the area.

(6) Another commenter objected to requiring the notice to contain an explanation of the exploring entity's legal right to enter upon and conduct exploration within the lands involved, arguing, first, that this is not required by the Act and, second, that this information needs to be kept confidential. No supporting information was presented to demonstrate the commenter's broad claim of confidentiality. The Office decided to modify the final rule in response to this comment, but not to delete the requirement entirely. Section 776.11(b) (5), as adopted, requires the person seeking to conduct exploration to explain the right of entry only if that person does not own the surface of the lands involved. The need for this information is supported by Section 102(b) of the Act, which requires protection of the rights of surface owners of land and other persons with a legal interest in land and appurtenances. With this information, the regulatory authority can identify the surface owner of the exploration area, if necessary, to ascertain if reclamation was properly conducted. Regarding the threat to competitive interests of the explorer, Section 776.17 provides for adequate safeguard against unwarranted disclosure of information.

700 {15019}(7) Several commenters recommended deletion of the requirement that the notice contain a description of the measures that the exploring entity will take during exploration to protect the environment, on the grounds that this was not authorized by the Act. The Office rejected these comments. Section 776.11(b)(6) of the final rules is authorized under Section 102, 201(b), 501(b) and 512 of the Act, both to encourage the exploring entity to adequately preplan its exploration activities to protect the environment and to provide the regulatory authority with sufficient information to decide if field inspection of the exploration is necessary for determining compliance with the requirements of Part 815. The Office does not believe that this requirement is inconsistent with Section 512(a) of the Act. The regulation merely leaves to the exploring entity the duty to ensure adequate planning of exploration before its commencement.

Section 776.11(c).

The requirement that the regulatory authority make notice of intention to explore publicly available received substantial comment. Some commenters supported this requirement as necessary to inform landowners and the public of the conduct and location of coal exploration that could adversely affect their interests. In addition some of these commenters suggested additional requirements, including newspaper and mail notification by the regulatory authority of receipt of notices. Industry commenters, on the other hand, objected to making notices publicly available at all, arguing that this would harm the competitive interests of exploring entites and that it was not authorized by the Act.

After consideration of all comments, the Office decided to adopt the requirement of public notification without modication from the proposed rule. This requirement is authorized under Sections 102, 201(c), 501(b), 512 and 517(f) of the Act, to provide for an adequate level of public participation in the permanent regulatory program. Under Section 517(f) of the Act, a general rule is established for information obtained by the regulatory authority in administration of programs under Title V of the Act, including Section 512(a). As such, documents obtained under Section 512(a) of the Act are ordinarily to be made available to the public for inspection and copying under Section 517(f) of the Act. In addition, the Office is required to ensure under Section 102(i) of the Act that adequate provisions are made for public participation in the enforcement of regulatory programs. To foster the purposes of the Act, as supplied by Section 102(i), the Office has decided that public availability of notices received by the regulatory authority is to be required as an aid to public participation in enforcement of the permanent regulatory programs. Regarding protection of the competitive interests of exploring entities, the Office has determined that Section 776.11(d), through cross-reference to Section 776.17, provides for sufficient protection. It is noted that no commenter supplied any data tending to show that the public-availability requirement of Section 776.11 would, in fact, harm competitive interests. Similarly, conclusory claims that existing state laws already adequately regulate coal exploration in this regard were also rejected as unsubstantiated.

Regarding additional public notification by newspaper and mail, the Office has decided to leave that decision to the discretion of individual regulatory authorities, because of the wide variation among the States in the intensity of coal exploration. Given that variation, it was decided that newspaper and/or mail notice may be necessary in only some States, where the level of exploration is high.

Section 776.12(a)(3).

A commenter objected to the requirement of Section 776.12(a)(3) that each application for approval of exploration contain a narrative description of the geology, vegetation, and existence of threatened or endangered species and their critical habitats in the area to be explored. This commenter reasoned that, given the definition of "coal exploration'' in 30 CFR 701.5, collection of the data necessary to fill out the application would itself be subject to prior approval as "coal exploration.'' This comment was not accepted, because the type of information objected to is important in providing the regulatory authority with a sufficient baseline for assessing the impact of the proposed exploration. Further, these items can be obtained without physical disturbance of the area to explored, through general geology maps and texts of the general vicinity, vegetation data collected by surface reconnaissance, and information concerning threatened and endangered species from the U.S. Fish and Wildlife Service.

See., e.g., USEPA, 1976, Erosion and Sediment Control, Vol. 1 at 74 77.

Section 776.12(a)(4).

A commenter suggested that some latitude be made under Section 776.12(a)(4) for circumstances when the actual owner or claimant is not determinable, because of title defects or irregularities in the claim of titles, by addition of the phrase "if reasonably ascertainable.'' No change has been made in the regulations, because the added wording is believed to be unnecessary. Obviously, if defects or disputes exist, the applicant can submit only as much information as is reasonably available.

Section 776.12(a)(5).

Some commenters suggested that Section 776.12(a)(5) be amended to add archeological resources to the list of items to be disclosed on the map of the exploration area, noting that these are significant resources afforded protection under the Act. (Sections 102, 507(b)(13), 522(a)(3)(B)); 552(e); and the National Historic Preservation Act of 1966 (16 U.S.C. Secs. 470 et. seq.) from the adverse effects of mining and are required to be disclosed in mining permit applications. The Office accepted those comments and modified the final rule accordingly.

A commenter argued that Section 776.12(a) was unduly restructive in requiring advance prediction of the location of drill holes, which may be impossible to specify before actually commencing drilling. No change was made to the regulation, because it does not require a "precise'' identification of each drill hole. Rather, the general location and number of drill holes within the area would satisfy the requirement of the regulation. Section 776.12(b).

This section provides for notice and opportunity for the public to comment upon applications for approval for coal exploration, to ensure that adequate public participation is afforded in the review of these applications under Section 102(i) of the Act. As suggested by several commenters, an incorrect cross-reference to Section 781.77 in the proposed rule was deleted. Several other comments were received on this paragraph.

700 1. Some commenters urged that the public-notice requirement be made more detailed and that they track the requirements of Section 786.11 relating to mining permits as closely as possible. Others wanted public notices deleted entirely. Many commenters also pointed out that the regulations, as proposed, were unclear in certain particulars, such as who should post the public notice, where the notice should be posted, who could file, and when the comments could be filed.

{15020}Public notice and comments have not been deleted, because involvement of the public under the authority of Section 102(i) of the Act is an important component of ensuring thorough review of applications by the regulatory authority. (See S. Rep. 95 128, 95th Cong., 1st Sess. at 59 (1977).) Nor were major additional procedures added, because the Office determined that exploration, which is ordinarily on a smaller scale than mining, need not be subjected to as wide an area of public participation as mining permits.

Some clarification was made, however, in response to the comments. First, a reasonable time limit was provided for the posting of the public notice. Notice is to be posted by the applicant, rather than the regulatory authority, because the applicant is ordinarily in closer proximity to the immediate local area where notice will be posted.

2.

Section 776.12(b)(2).

Some commenters requested that Section 776.12(b)(2) provide for a specific time limit on the submission of comments. The suggestion was not accepted, because of the wide variation in the number of explorations in particular States. Therefore, the time limit will be left to the discretion of the regulatory authority to decide on a case-by-case basis.

3.

Section 776.12(b)(3).

Several commenters recommended that Section 776.12(b)(3) be revised to limit the right to file written comments on the application to persons "who are or may be adversely affected,'' on the model of Section 513(b) of the Act. Although the "written approval'' required by Section 512(d) is not intended to be a permit, the Office agreed that the right to file written comments on an exploration application should not extend to parties beyond what is authorized on permit reviews. Therefore, the comments were accepted.

SECTION 776.13 Applications: Approval or disapproval of exploration of more than 250 tons.

This Section requires the regulatory authority to act on applications for exploration and provides the criteria by which the application is to be approved or disapproved.

1. A commenter suggested deleting the entire Section, arguing that approval of the State program is all that is necessary to ensure that the regulatory authority will administer Section 512(d) of the Act. However, minimum requirements are necessary to implement Section 512(d) of the Act and to ensure that the purposes of the Act (Sections 102(a)(d), 102(k)) are furthered. It was, therefore, decided to retain this Section substantially as proposed.

2. A commenter's suggestion that the title to this Section be clarified as to its applicability only to coal exploration operations of more than 250 tons was accepted.

3. Several commenters suggested that a "reasonable time'' be more explicitly stated for the regulatory authority to act upon a completed application. These suggestions were not accepted because of the wide variation among States in the number of explorations and consequent variability in workloads for reviewing applications.

4. Several comments were submitted regarding the use of the word "may'' in Section 776.13(b) and requesting that potential arbitrariness in use of this word be eliminated by replacing it with "shall.'' These comments were accepted.

5. A commenter questioned whether protection of critical habitats of threatened or endangered species should be required during coal exploration.

Sections 101, 102, 512, and 515 of the Act make specific reference to protecting environmental values, including fish and wildlife habitats. Although coal exploration operations may affect small areas, the special categories of the environment (habitats) for which protection is authorized can be similarly small areas. Further, the Endangered Species Act and the U.S. Fish and Wildlife Service regulations require that these habitats be protected under statutes, such as the Act, administered by the Secretary. This comment was accepted. (See also, the preamble discussions to sections 770.12(c) and 779.20.) SECTION 776.14 Applications: Notice and hearing for exploration of more than 250 tons.

This Section provides for the procedures for the regulatory authority to follow, once a decision has been made under Section 776.13 to approve or disapprove the application, in order to notify the applicant and the public of its decision. This Section also provides that the decisions of the regulatory authority are to be subject to appropriate opportunity for administrative adjudicatory and judicial reviews.

1. A commenter questioned whether the regulatory authority should be specifically empowered to modify coal exploration applications. This comment was not accepted because power to approve or disapprove implies the power to modify an application. Any application which is disapproved could be modified and resubmitted under Section 776.13(c).

2. Several commenters questioned whether it should be required that government officials receive personal notice of a regulatory authority decision on coal exploration applications, rather than having to depend on newspaper advertisements. These comments were accepted, because local governments should be provided with notice in all cases of exploration, to ensure that their property, public roads, and land-use control scheme is protected and coordinated as to large-scale coal exploration.

3. Several commenters questioned whether there should be an opportunity for a hearing on the approval or disapproval of coal explorations over 250 tons. As proposed, Section 776.14 conferred discretion to the regulatory authority to hold a hearing after approval or disapproval of exploration applications. Under the due-process requirements of the 5th and 14th amendments to the United States Constitution, the Federal and State governments can only take property or deprive individuals of their due-process rights if opportunity for an adjudicatory hearing is afforded on particularized, factual determinations. Furthermore, the Federal Administrative Procedure Act (5 USC 554) and most State laws provide for a similar right to a hearing. Therefore, any person adversely affected by the decision of the regulatory authority on an exploratory application must be given an opportunity for a hearing. The type of hearing to be afforded is specified in Part 787, which itself has been modified in the final rule to account for exploration application approval and disapproval hearings.

SECTION 776.15 Coal exploration compliance duties.

This Section establishes the compliance responsibilities of persons seeking to conduct or already conducting coal exploration under the permanent regulatory program. Suggestions by commenters that this Section be limited to those explorations which substantially disturb the natural land surface were accepted, in part, as Section 512(a) of the Act limits the scope of application of the performance standards of the Act to such operations. However, 776.15(b) is applicable to all coal exploration, for the reasons explained in the preamble to section 776.11.

SECTION 776.17 Public availability of information.

This Section provides for standards and procedures regarding the extent to which information submitted to the regulatory authority under Part 776 is to be made publicly available.

700 1. A number of commenters objected to the wording of Paragraphs (a) and (b) of this Section, arguing that the exploring entity, not the regulatory authority, should determine what information is to be kept confidential. These commenters said that those determinations were neither authorized to be entrusted to the regulatory authorities under the Act, nor could the regulatory authorities be completely trusted not to divulge some confidential information. Some commenters also argued that disclosure of any information regarding exploration would harm the competitive rights of exploring entities.

Section 512 of the Act must be viewed as a part of the entire regulatory scheme which Congress desired to exist under the Act. That scheme provides for adequate public participation and public availability of information (Sections 102(i) and 517(f) of the Act). Ordinarily, information obtained by the regulatory authority is to be publicly disclosable, including that obtained through regulation of coal exploration. Provisions against disclosure, therefore, such as Section 512(b) of the Act, constitute an exception which is to be narrowly construed.

No data were submitted to substantiate commenters' concerns that determinations of confidentiality or the release of any information will harm competitive interests. Moreover, an objective standard for determining confidentiality requests, as opposed to a subjective standard based purely on the desires of the person submitting information, is necessary to foster the purposes of the Act to protect the general public and the environment. The Office believes, on the basis of these principles, that Section 776.17 strikes a proper balance between public interests in disclosure of relevant information and protection of competitive rights. Moreover, the addition of the opportunity for a prior hearing on the disclosure of information should ensure against possible mistaken releases of data entitled to confidential treatment.

2. A related comment suggesting expansion of the categories of confidential information protectable under Section 776.17 to include any information "affecting marketability of land or mineral rights'' was also rejected, because Section 512(b) of the Act is limited to information which if disclosed relates to trade secrets, or would harm competitive rights. Expansion beyond this category was not shown to be needed by the commenter, nor does the Office believe that the excepting language of Section 512(b) should be read more broadly.

3. Several commenters suggested modifying Section 776.17 to provide the person submitting the information to have protection from unwarranted disclosure of confidential information through notice and opportunity for a prior hearing on proposed disclosures.

Section 512(b) of the Act specifies that information submitted to the regulatory authority as confidential shall not be available for public examination. Section 517(f) of the Act specifies that information obtained shall be immediately available to the public. This potential conflict places the regulatory authority in a position of ascertaining if the information submitted pursuant to Section 512 is of the type specified as confidential. However, information that is entitled to confidential protection to prevent damage to a person's business, competitive interests, such as the type of information covered by Section 776.17(b)(2), is subject to the requirements of due process.

Due process requires that a person not be individually deprived of individual property without some opportunity for a hearing. The divulgence of information in the possession of the regulatory authority which is entitled to confidential protection under Section 776.17(b)(2) must, therefore, be protected by providing for advance notice to and opportunity to be heard by the person requesting that the information be protected. As a result, a new Paragraph (b)(3), was added to the final rules.

SUBCHAPTER G -- SURFACE COAL MINING AND RECLAMATION OPERATIONS PERMITS AND COAL EXPLORATION PROCEDURES SYSTEMS, 30 CFR PART 778 -- SURFACE MINING PERMIT APPLICATIONS: MININUM RQUIREMENTS FOR LEGAL, FINANCIAL, COMPLIANCE AND RELATED INFORMATION INTRODUCTION Part 778 provides the minimum requirements for legal, financial, compliance and general non-technical information for surface mining activities applications. Information submitted in permit applications under Part 778 will be used primarily to enable the regulatory authority and interested members of the public to ascertain the particular nature of the entity which will mine the coal and those entities which have other financial interests and public record ownership interests in both the mining entity and the property which is to be mined. In addition, certain other non-technical information needed for processing and approval or disapproval of the application is required.

The basis and purpose of Part 778 was set forth, in general, at 43 F.R. 41691 41693. Most of the comments on Part 778 apply also to Part 782 and, when changes were warranted in both parts based on comments addressed only to Part 778, corresponding changes were also made in Part 782. (Part 782 concerns minimum requirements for legal, financial, compliance, and related information for applications for underground mining activities.) Some minor editorial changes have been made throughout this Part. Many comments were received on Part 778, and some changes in the regulations have been made. Paragraphs 778.5 and 782.5, Definitions, have been deleted since the definition there has been moved to section 770.5 in the final rules.

700 SECTION 778.13 Identification of interests.

Authority for this Section is Sections 102, 201(c), 503, 504, 507, 508, 509, 510, and 515 of SMCRA. It should be noted that some amplification of the coverage in Sections 778.13 (b) and (d) will be necessary in particular cases, when the actual operator is to be a different person from the applicant. This information will aid the regulatory authority in determining the past compliance history of the person actually doing the work. Section 510(c) of the Act requires this determination. Even if the applicant had no previous violations, the permit could be denied if the actual operator had a history of noncompliance with the Act or other air or water environmental protection statutes.

1. Section 778.13(a): Several objections were received that too much detail was required on both applicant ownership and land-to-be mined ownership. On the other hand, one commenter felt more detail would be necessary to reveal complex ownership patterns. The comments were rejected. The requirements for details of ownership are specifically stated in Section 507(b) of the Act. Ample authority exists in section 510(c) of the Act to deny permits where the operator or applicant is controlled by a parent company that has a willful pattern of violations of the Act.

2. Commenters objected to furnishing telephone numbers for all of the persons mentioned in 778.13. Since rapid communication by telephone would be required only for persons immediately involved in the operation, Paragraph 778.13(a) was modified to require the telephone numbers only for the applicant, operator, and resident agent.

3. Several commenters objected to the requirement for the listing of equitable, as well as legal owners, of record in subparagraph 778.13(a)(2). The reasons given were that the equitable owners were not required by the Act and the determination of equitable owners might be difficult or impossible in some cases. These comments were rejected. The equitable owner of record of the property to be mined needs to be named in the application in order to enable the regulatory authority to easily locate these owners, if their interests would be adversely affected by the proposed operations, and, in the event of a violation of applicable regulations during the mining process, to locate potentially responsible parties. This requirement should not pose an additional burden on applicants, as equitable owners of record can be identified by the same process of searching public property records at the same time as for legal owners of record. It is also noted that the applicant should try to identify "equitable owners of record'' to insure that rights to mine coal are being obtained free and clear from equitable claim to minerals.

{15022}The Office believes it has legal authority to require this information under Sections 102(a), 201(c), 507, 508, 510(b)(c), and 515 of the Act. Section 102(a) of the Act requires protection of "society'' from adverse effects of coal mining. Further, Section 102(b) of the Act requires protection of all persons with "legal interests'' in land from adverse effects of coal mining. An "equitable owner of record'' is a "person with legal interests'' within the meaning of the Act.

Black's Law Dictionary at 1259 1260 (1956 ed.). Because Sections 102 (a) and (b) of the Act protect equitable owners of record, subparagraph 778.13(a)(2) is lawfully issued under section 201(c)(2) of the Act.

4. Section 778.13(b): Some commenters wanted to limit this subsection to operations in the State, rather than the entire United States. These comments were rejected because Section 507(b)(4) of the Act expressly requires that the applicant identify the operations "within the United States,'' not just the State in which the application is filed. 5. Sections 778.13(d) and 782.13(d): Several commenters objected to the listing of previous coal mining permits held by the applicant. The reasons given were that some of the information required might be unavailable or have little present relevance. The comment was accepted by limiting the information requirement of Sections 778.13(d) and 782.13(d) to permits issued after 1970.

Some commenters wanted to limit Section 778.13(d) to operations in the State, rather than the entire United States. These comments were rejected, because Section 507(b)(3) expressly requires that the applicant list current or previous coal mining permits in the United States, rather than just the State in which the application is filed.

One commenter wanted to limit the statement of any current or previous coal mining permits to "surface'' coal mining permits. This comment was accepted, since this phrase more closely tracks Section 507(b)(3) of the Act. By the definition of surface coal mining operation in Section 701(28) of the Act, it is clear that both surface and underground activities are intended to be included by this requirement.

One commenter wanted to delete the phrase "and by any person identified in paragraph (b)(3) of this Section'' in Section 778.13(d), since it was not explicitly required in the Act. This comment was rejected, as those entities are persons who are in a position to exercise significant control over the conduct of an applicant's business affairs and who could be responsible for violations of law incurred by the applicant, for which the applicant is responsible under Section 510(c) of the Act. As a result, information about those persons' histories of compliance with permit obligations would be relevant and useful to the regulatory authority. Because that information would be in the possession of persons who would be closely associated with the applicant, requiring the applicant to produce that information should not pose a significant burden on the industry.

6.

Sections 778.13(e) and 782.13(e).

Several commenters objected to the requirement for listing all owners of property contiguous to the permit area, rather than owners of surface property and of coal mineral rights. The comments were rejected, since Section 507(b)(2) of the Act requires identification of owners of all property next to the proposed permit area.

7.

Section 778.13(f).

One commenter objected to supplying the Mine Safety and Health Administration's MSHA identification number for the mine. This comment was rejected, since the information is needed to aid the regulatory authority in coordinating review of the permit application with the MSHA, so that any potential conflicts between the regulatory requirements of the Mine Health and Safety Act and the SMCRA could be resolved. In addition, identification of the MSHA number will be important in the case of a proposed new coal mine which might constitute a "new source'' under the Clean Water Act. 33 U.S.C. 1251, et seq.

See 44 Fed. Reg. 2587 (January 12, 1979). The name of the mine and the mine MSHA I.D. number are, therefore, required under Sections 102, 201(c), 503, 504, 507, 508, and 510 of SMCRA, to insure that an effective permit system is implemented.

8.

Sections 778.13(g) and 782.13(g).New subparagraphs were added as Section 778.13(g), that were from Sections 779.12(c) and 783.12(c) in the proposed rules. Requirements for information on interests, options, and pending bids on lands more logically belong with the legal and financial sections of the applications, rather than the general environmental resources information.

Commenters objected to the requirements for listing various interests in lands within mine plan areas. The reasons given were that the requirements exceeded the authority of the Act, that confidential information would be disclosed, and only information on lands contiguous to the permit area was required.

The basic justification for the requirement is contained in the preamble to Section 779.12 (43 Fed. Reg. p. 41694); however, limitation to contiguous lands is more consistent with Section 508(a)(11) of the Act. Confidentiality of the information is adequately protected by 30 CFR 786.15.

Several commenters objected to the phrase "options or pending bids on such interests'' as being unauthorized by the Act. Section 508(a)(11) specifically requires this information, so the comments were rejected.

700 SECTION 778.14 Compliance information.

Authority for this Section is, in general, Sections 102, 201(c), 501(b), 503(a), 504, 507(b), 508(a), 509, 510, and 515 of the Act. The purpose and basis for this section was generally discussed at 43 Fed. Reg. 41692 (Sept. 18, 1978).

Some amplification of the coverage in Section 778.14 will be necessary for the situation when the actual operator is to be a different person from the applicant, as is explained above in the preamble to Section 778.13. Section 510(c) of the Act specifies that no permit shall be issued to an applicant after a finding that ". . . the applicant or the operator . . .'' has a demonstrated pattern of willful violations. This information is necessary so that the regulatory authority can make a determination concerning the past compliance history of the person actually doing the work.

1.

Scope of laws involved Several commenters suggested that the compliance information required by Sections 778.14(c) and 782.14(c) should be restricted only to operations of the applicant in the State where the application is made. These comments posed related suggestions to proposed Sections 786.15(g) and 788.12(c), which are the substantive rules designed to implement the first portion of section 510(c) of the Act.

In response to these comments, the Office has made several modifications to the final rules in Sections 778.14(c), 782.14(c), 786.17(c), and 786.19(g), which will more closely follow the Congressional intention for Section 510(c) of the Act. Following is the Office's analysis of the comments received on the proposed rules and explanation of their disposition.

One comment argued that Section 510(c) of the Act is limited in application to Federal programs only. This argument is not substantiated in the comments and is without merit. Indeed, as that commenter itself recognized, Section 510(c) can be applied to State programs, although (says that commenter) only for violations by the applicant of that State's laws. In any event, Section 510(c) is not limited as to the type of program under which it should be applied. Section 510(c) is one of four paragraphs of the section of the Act which establishes the criteria for permit denial/approval decisions by the regulatory authority. As Section 510(a) indicates, decisions under either a State program or Federal program are to be made in accordance with the Act, which includes Section 510(c). Second, Section 510(c) on its faces applies to the "applicant'' without any indicated qualification as to whether a State or Federal program is involved. Third, Section 510(c) applies ". . . where the schedule or other information available to the regulatory authority . . .,'' without limitation as to the type (i.e., Federal or State) of regulatory authority involved. "Regulatory authority'' is defined at Section 701(22) of the Act to include both State and Federal programs. Fourth, Section 510(c) prohibits issuance of the "permit,'' without limitation as to the type of permit involved. "Permit'' is defined at Section 701(15), to include permits under both State and Federal programs. The words of Section 510 thus clearly apply all provisions of Section 510(c) to both State and Federal programs. In such cases, the ordinary meanings of the words of the Act are to be given full and complete effect.Burns v. Alcala, 420 U.S. 575 (1975). Therefore, Sections 778.14(c), 782.14(c), 786.15(g), and 788.12(c) have been modified to narrow their coverage to Federal programs only.

{15023}Some commenters contend that Section 510 of the Act applies only to violations of Federal laws and, therefore, not to violations of laws administered by agencies in other States. They asserted that, because Congress failed to expressly list State laws in the phrase "violations of this Act, any law, rule, or regulation of the United States pertaining to air or water environmental protection,'' Congress chose to exclude coverage of laws administered by State governments. A close reading of this portion of Section 510(c) reveals, however, that Congress did intend to include some laws enforced by State governments.

The critical phraseology of Section 510(c) that these commenters point to is "violations of this Act and any law, rule, or regulation of the United States, or of any department or agency in the United States,'' contending that this covers only Federal laws administered by Federal agencies because of the use of the term "United States.'' This argument, however, ignores completely the phrase "department or agency in the United States.

'' (Emphasis supplied) The phrase "in the United States'' is construed by courts to mean physically located within the United States.

See e.g., United States v. Neptune, 337 F. Supp. 1028, (D. Conn.) Therefore, the preferred way to read section 510(c) is to construe "department or agency in the United States "to mean any governmental department or agency'' physically located in the United States, which would include State and local governmental entities.

The commenters suggested construction of Section 510(c) would also render meaningless the phrase "department or agency in the United States,'' a result which is always to be avoided. Ziegler Coal Co.

v. Kleppe, 536 F. 2d 398 (D.C. Cir., 1976), cert. den., 411 U.S. 917 (1973). If Congress had intended to apply Section 510(c) to Federal laws administered by Federal agencies only, it could have limited its choice of words to "violations of the Act or of any law, rule, or regulation of the United States'' and excluded the words "or of any department or agency in the United States,'' since the former would have covered, by reference to "law, rule, or regulations of the United States,'' all Federal laws. Instead, Congress enacted Section 510(c) to cover violations of laws, rules, or regulations of the United States (e.g., Federally administered) and of "laws, rules, regulations . . . of any department or agency in the United States,'' thereby clearly intending to cover a body of law in addition to Federal law administered only by Federal agencies. In summary, the structure of Section 510(c) and accepted principles of statutory construction reveal that Section 510(c) of the Act was intended to cover violations of the Act and of air or water environmental protection statutes administered by both Federal and State governments. 700 On the other hand, it appears from the legislative history that Congress did intend that Section 510(c) would apply to violations of any State environmental protection laws which implement Federal environmental laws. The relevant portion of Section 510(c) originated in the 1974 version of the House bill, H.R. 11500, and was the same as that finally enacted by Congress in 1977. Compare Section 209(e), H.R. 11500, H.R. Rep. No. 93 1072, 93rd Cong., 2d Sess. at 12 (1974), with Section 510(c). As the House reports through the years reveal, Congress intended that Section 510(c) apply to a "wide range'' of violations of Federal environmental protection requirements. H.R. Rep. No. 93 1072, supra, at 82, 133; H.R. Rep. No. 94 45, 94th Cong., 1st Sess. at 45, 113 (1976); H.R. Rep. No. 94 1445, 94th Cong., 2d Sess., at 44, 115 (1976); H.R. Rep. No. 95 218, 95th Cong., 1st Sess., at 92 (1977). It is important to note that those "other Federal air and water environmental protection statutes,'' continually referred to by the House, are largely implemented through State adoption of laws which are enforceable as Federal laws.

For example, the Clean Air Act is implemented under State plans to control existing stationary sources of air pollution (Section 110, 42 U.S.C. Section 7410), new sources (Section 111, 42 U.S.C. Section 7411), hazardous air pollutant sources (Section 112, 42 U.S.C. Section 7412), and to prevent significant deterioration of air cleaner than the national ambient air quality standards (Section 127, 42 U.S.C. Section 7427). The provisions of these State law plans are, however, also Federal law and enforceable by Federal agencies and courts. Sections 113, 304, 42 U.S.C. Sections 7413, 7604; Union Electric Co.

v. EPA, 515 F. 2d 606 (8th Cir., 1975), aff'd., 96 S. Ct. 2518 (1976); Friends of Earth v. Carey, 535 F. 2d 165 (2nd Cir. 1976); Friends of Earth v. Potomac Electric Power Co., 419 F. Supp. 528 (D.D.C. 1976).

Parallel provisions prevail under the Clean Water Act (33 U.S.C. Section 1251 et seq).

Non-point source pollution is to be controlled according to State plans which become Federal law when approved by the Administrator, USEPA, 33 U.S.C. Section 1288. Point source discharges are to be regulated under State laws approved by EPA for water quality standards (33 U.S.C. Section 1313) and permits (33 U.S.C. Section 1342). These State plans are enforceable as Federal law by Federal agencies and courts. 33 U.S.C. Sections 1319, 1365; EPA v. California, 426 U.S. 200 (1976); United States Steel v. Train, 556 F. 2d 822 (7th Cir. 1977); Montgomery Environmental Coalition v. Fri., 366 F. Supp. 261 (D.D.C. 1973). See also Dwyer v. City of Ann Arbor, 261 N.W. 2d. 231 (Mich. Ct. of Appeals, 1977).

Similarly, the Act's State programs, while adopted in the first instance by the States, will also become Federal law when approved by the Secretary of Interior, being promulgated as Federal regulations and enforceable as such in the United States courts. Section 520(a) SMCRA; 30 U.S.C. Section 1270(a). Therefore, although the House Reports relating to the Act evidence Congressional intent to apply Section 510(c) to violations of Federal law, those laws would include State laws which are passed to implement Federal environmental protection statutes and thereby are incorporated into Federal law. Further, this type of State-administered law is also "laws, rules, and regulations . . . of any department or agency in the United States'' which, as explained above, Congress clearly intended to include within the scope of Section 510(c) of the Act. OSM's regulations implementing Section 510(c) should, therefore, include violations of those State laws, and regulations adopted under Federal air or water environmental protection standards.

{15024}In addition to contentions about the meaning of Section 510(c) of the Act itself, the commenters also raised two additional objections to the proposed rules on legal grounds. First, they argue that, to require the State in which a permit application is filed to enforce the law of another State, by refusing to issue the permit on the basis of violations by the applicant of the other State's laws, would be unconstitutional under the Commerce Clause of the United States Constitution. Those commenters cited neither supporting case law, nor detailed legal rationales. Further where, as in enacting Section 510(c) of the Act, Congress itself acts under the Commerce Clause, the courts accord it broad latitude to impose pre-conditions to engaging in business. American Power Light Co.

v. SEC, 303 U.S. 419. There would appear to be no constitutional barrier under the Commerce Clause to requiring an applicant for a mining permit to establish first that it is effectively abating violations of important environmental protection laws at other mining operations under its control.

The second legal argument raised by the commenters, aside from those directly relating to Section 510(c) of the Act, is that some States have "no authority'' to withhold permits for violations of other States' laws. Assuming that these comments are intended to mean that some States do not presently have State laws which would authorize their regulatory authorities to implement Section 510(c) of the Act, these comments were rejected, because Congress, of course, clearly anticipated that the States might have to change existing laws in order to qualify for State program approvals.See Sections 102(g), 201(c)(9), 503 of the Act.

Several commmenters argue against any adoption of regulations to implement Section 510(c), of the Act, based on complaints of the administrative inconvenience to State regulatory authorities to implement the Office's regulations under State programs.

One commenter objected that the proposed Office regulations would require the State regulatory authority to hold hearings on violations of laws other than those it directly administers. This contention may be true for a small number of cases, as due process would certainly require that the permit applicant be provided at some point with notice and opportunity for a hearing to contest an allegation of a violation of law. Thus, to the extent that the applicant has been provided with prior or contemporaneous notice and opportunity for a hearing by the department or agency responsible for a violation notice, the regulatory authority reviewing the permit application need not itself provide another such opportunity.

For example, if a permit application to the Kentucky Department of Natural Resources is being denied a permit for a violation notice issued by West Virginia's DNR for the applicant's coal mine in West Virginia, Kentucky need not provide a hearing if the West Virginia DNR offered one on that violation notice. Sections 778.14(c) and 782.14(c) would require the applicant to include in the permit application the documentation necessary for the regulatory authority to determine whether opportunity for a hearing had been available to the applicant on a violation notice listed by the applicant.

As Federal and State agencies enforcing environmental law routinely grant hearings in enforcement of these laws, it can be expected that in only a limited number of cases will an applicant subject to Section 510(c) of the Act be entitled to a hearing before the regulatory authority to contest the validity of a violation notice being used as the basis for refusing to issue a permit. In those circumstances, the adjudicatory hearing requirements of Section 514(c), of the Act and 30 CFR 787.11 would be available to protect the rights of the applicant.

Another objection raised by the commenters is that implementation of Section 510(c) of the Act under a State program will require, for violation of laws of another State, that the regulatory authority engage in an allegedly tedious task of comparing the provisions of the State program being administered by that regulatory authority with the requirements of the second State's laws to determine which State's laws are more stringent. This objection incorrectly assumed, however, that more stringent provisions of another State's laws are directly applied under Section 510(c), of the Act to the operations proposed by the applicant to be conducted in the State in which the application is filed and reviewed under Section 510(c). Section 510(c) and the Office's implementing regulations require only that provisions of other State laws be enforced to the extent that violations of those laws at mining operations in those other States be abated to the satisfaction of the other State. Section 510(c) does not require, and the Office's regulations do not imply, that the substantive provisions of those other State laws will be applied to the operations being proposed under the permit application.

The commenters also argued that implementation of Section 510(c) of the Act and the proposed regulations would unduly restrict a State regulatory authority's flexibility to permit coal mining in its State. To the extent that Section 510(c) requires a State regulatory authority to withhold a permit application because of violations of law at other mines controlled by an applicant. Congress has mandated circumscription of State flexibility and the Office has no alternative but to adopt its proposed implementing regulations.

Commenters contended that the proposed regulations would have absolutely prohibited issuance of permits. However, in limited circumstances the legislative history Section 510(c) allows for issuance of a permit, notwithstanding existing, uncorrected violations of law at other mines operated by the applicant. The Senate Committee reports contained the following cautionary instructions regarding versions of Senate bills identical to Section 510(c): It is not the intention of the Committee that an operator who is charged with the types of violations described in Section 510(c) be collaterally penalized through denial of a mining permit if he is availing himself, in good faith, of whatever administrative and judicial remedies may be available to him for the purpose of challenging the validity of violations charged against him. However, the Committee also does not intend that a permit applicant can avoid the purpose of Section 510(c) simply by filing an administrative or judicial appeal. It is expected that the regulatory authority will carefully examine those situations where an administrative or judicial appeal is pending in order to ensure to the fullest extent possible that such appeals are not merely frivolous efforts to avoid the requirements of Section 510(c). S. Rep. No. 94 28, 94th Cong., 1st Sess. 210 (1975).

Accord, S. Rep. No. 95 128, 95th Cong., 1st Sess. 79 (1977).

This qualifying view of Section 510(c) was neither objected to nor endorsed in the general parts of the House Committee reports, but it was adopted in 1975 as the views of some members of the House Committee who supported the passage of the Act, H.R. Rep. No. 95 45, 94th Cong., 1st Sess. 157 (concurring views of Rep. Ruppe, Clausen, Lagomarsino). In such circumstances, it is reasonable to assume that the House did not object to the Senate's qualifying construction of Section 510(c).

Accordingly, OSM has chosen to modify the provisions of Sections 786.19(g) and 786.17(c) to allow for issuance of a permit where, despite outstanding uncorrected violations at other mines, a permit applicant is actively making good faith pursuit of administrative or judicial rights to appeal those violations. Appropriate revisions to those sections have been made, with qualifications to prevent abuses. These revisions would allow for issuance of permits only as to pursuit of rights to direct appeals only and not as to collateral litigation, such as agency enforcement suits to abate the violations, since only the former would involve a "good faith attempt to pursue an appeal'' under the Senate Committee Reports.

{15025}It is important to note that adoption of those revisions will place even more importance on the requirements of Sections 778.14(c) and 782.14(c), under which the regulatory authority would be provided with the documentation needed to make good faith appeal determinations necessary for issuance of permits.

Section 778.14(c).

Commenters asked that information on violations of environmental laws be limited to those not abated at the time of permit application or those occurring within the past 12 months rather than the previous three years. These comments were rejected. Section 510(c) expressly requires that a three year history be provided.

700 Commenters also argued that the information required under Section 778.14 constitute self-incrimination or double jeopardy. These comments were rejected. The information required by Sections 507(b) and 510(c) of the Act is already a matter of public record and is to be supplied for a civil proceeding, to which the double jeopardy clause does not apply.

One commenter suggested that Section 778.14(c) be expanded to include all persons mentioned in Section 778.14(a), so as to make it consistent with the rest of Section 778.14. This comment was rejected, since the requirements of Section 778.14(c) are restricted by Section 510(c) of the Act, whereas Section 507(b)(5) of the Act specifies the requirements for the other paragraphs in Section 778.14.

The same commenter suggested that the phrase "pertaining to air or water environmental protection'' be deleted in light of the Act's intent also to protect terrestrial resources. This comment was rejected since this specific subsection is restricted by Section 510(c) of the Act to violations pertaining to air or water environmental protection. Another suggestion by this commenter was to require the reporting of violations for any coal mining operations. Another commenter wanted the reporting applicable to surface mines only. The reporting of violations for any mine is the intent of this Section. The provisions of Section 516(d) specify that Title V of the Act applies equally to surface operations and to surface impacts incident to underground mining, except where it is necessary to accommodate distinct differences between surface and underground coal mining. Violations pertaining to air or water environmental protection, although they may differ as to the details, nevertheless give an indication of past behavior that could represent a demonstrated pattern of willful violations. To correctly identify a pattern of violations, it is immaterial whether they occurred at surface operations, underground operations or at some combination of the two.

Commenters argued that the information or compliance required by the regulations was not the brief statement authorized by Section 507(b)(5) of the Act. The comments were rejected because the requirements are as brief as possible still to obtain the information required by the Act. Compare In re Surface Mining Regulation Litigation 1, 452 F. Supp. 327, n. 8, (1978 D.D.C.). SECTION 778.15 Right of entry and operation information.

Authority for this Section is Sections 102, 201(c), 501(b), 503, 504, 507(b), and 510(b)(6) of the Act. Sections 778.15 (a) and (b) were adopted principally to implement Sections 507(b)(9) and 510(b)(6) of the Act, requiring that the application contain a statement of the documents upon which the applicant bases the legal right to enter and commence mining operations on the permit area and a statement of whether that right is the subject of pending court litigation. In the final rules, the proviso in Section 507(b)(9) of the Act has been specified at Section 778.15(c). There has also been some change in wording throughout the section to correct the use of terms explicitly defined elsewhere in these regulations. In addition, the phrase "surface coal mining and reclamation operations'' was replaced by the phrase "extract the coal by surface mining methods'' to clarify that the requirements of this Section applies only to surface mining activities.

1.

Section 778.15(a).

Commenters asked that the requirements for certified documents be restricted or clarified, because of the cost of obtaining these. Another commenter requested that a recorded memorandum of a lease be submitted, rather than a copy of the lease itself, since, in the preamble to the proposed rule, the Office had recognized that some confidential provisions of a lease are normally interspersed throughout the document and to provide an edited version which excludes these provisions is both time consuming and costly.

The comments were accepted, since ordinarily the regulatory authority will be able to determine disputes of fact about whether a legal right claimed by the applicant exists from the descriptions provided. Section 779.15(a) now requires a description of the documents and certain other specified facts about the nature of the rights involved, rather than copies of the documents. 2. One commenter wanted to add the phrase "or the proposed basis by which the applicant intends to acquire the legal authority. . . .'' This suggestion was rejected, since Section 510(b)(6) requires the submission in the application of "a conveyance that expressly grants or reserves the right to the coal_,'' not a prospective acquisition of the right.

3. One commenter suggested that the regulatory authority be prohibited from determining the completeness or sufficiency of the applicant's documentation in Section 778.15, since this would be tantamount to adjudicating the title as specifically prohibited by Section 510(b)(6)(C) of the Act. The suggestion was rejected, since the regulatory authority must have the right to decide the sufficiency or completeness of the documents, if it is to make the finding required by Section 510(b)(6) of the Act short of adjudicating property rights disputes.

4.

Section 778.15(b).

Commenters objected to the inclusion of the phrase "to the applicant'' as going beyond the intent of the Act. Other commenters asked that phrase "or its predecessor in interest'' be added after "applicant.'' The comments were accepted, and the phrase "to the applicant'' deleted to clearly express the intent of Section 510(b)(6) of the Act. That section does not specify that the surface owner's consent has to be given to the applicant or its predecessor in interest. The conveyance that expressly grants or reserves the right to extract the coal is the point of concern.

5. Other commenters suggested that a "statement regarding'' the written consent of the owner be substituted for the copy of the written consent required in Section 778.15(b). This suggestion was rejected, since Section 510(b)(6) of the Act expressly requires "the written consent of the owner'' be submitted to the regulatory authority.MINI SECTION 778.16 Relationship to areas designated unsuitable for mining.

The authority, purpose and basis for this Section was discussed at 43 FR 41693 (Sept. 18, 1978).

1.

Section 778.16(a).

Objections were raised to the requirement that the applicant indicate areas unsuitable for mining. The reason given was that the applicant might not be aware of proceedings on suitability and the regulatory authority would have all of the information. These objections did not result in a change in the regulations since Sections 507(d) and 510(b) of the Act require that the applicant affirmatively demonstrate, in a public manner, that the proposed permit area is not within an area designated unsuitable for mining. Since public notice will be given of any designation proceedings, it is not unreasonable to expect that the applicant should be aware of any unsuitability actions. Clarifying language was added to qualify the statement on the area unsuited for mining to be based on available information.

{15026}2.

Section 778.16(b).

One commenter suggested that the phrase "if the proposed area is within an area designation unsuitable . . .'' should be added to clarify the conditions as to when the legal and financial data required by this subsection is to be submitted. To add this phrase would have been redundant with Section 786.19(d)(2) which is specifically referenced in section 778.16(b) and which contains the provision suggested by the commenters.

3. Other comments suggested that this Section provide that the application be returned to the applicant, if the permit area contains lands unsuitable or under study as unsuitable for mining. This was rejected because disposition of permit applications is adequately addressed in Sections 786.19 and 786.23.

4.

Section 778.16(c).

Objections were raised to requiring the owner's consent before mining within 300 feet of a dwelling, on the grounds that the Section went beyond Section 522(e) of the Act, which provides that the owner's consent is subject to valid existing rights. The comments have been accepted. Section 778.16(c) has been changed to reflect conditions placed on the requirement for owner consent, by reference to subsection 761.12(e).

5. Other comments suggested that permission of the occupant of a dwelling be required. This suggestion was rejected, as Section 522(e) of the act expressly requires the waiver by the owner only.

SECTION 778.17 Permit term information.

The authority, purpose and basis of this Section were presented in the proposed rule was changed to subsection 786.25(a) in the final rule to reflect the new Section number for these provisions. Comments requesting that "anticipated'' be used to qualify the phrase "acres to be disturbed'' were accepted because this Section calls for an estimate of future action.

SECTION 778.18 Personal injury and property damage protection insurance information.

The authority, purpose, and basis of this Section was discussed at 43 FR 41693 (Sept. 18, 1978).

SECTION 778.19 Identification of other licenses and permits.

The authority, purpose and basis of this Section were discussed at 43 FR 41693 (Sept. 18, 1978). Commenters objected that the listing of other licenses and permits is unnecessary, not required by law, and that the licenses were not necessary for a permit. Commenters noted that, in many cases, action would not have been taken on the non-Federal licenses or permits at the time of Federal permit application. The alternative of deleting this requirement was rejected on the basis of the discussion in the preamble at 43 FR 41693, 778.19; However, a change has been made in the regulations reflecting the fact that action may not have occurred on other license applications. The rule clearly indicates that the licenses need not be issued prior to issuance of the Federal permit. The term "numbers'' was added to specify the nature of the identity of the applications and make it consistent with the manner of identifying permits or licenses.

SECTION 778.20 Identification of location of public office for filing of applications. The authority, purpose and basis of this Section were presented at 43 FR 41693 (Sept. 18, 1978). Some commenters objected to filing a copy of their application simultaneously with the permit application, because they would not know the location of the approved public office. Section 507(b)(6) of the Act requires that the application contain the location where the application is available for public inspection and, therefore, contemplates that the location will be specified prior to filing. Therefore, the rule was not modified.

SECTION 778.21 Newspaper advertisement and proof of publication.

The authority, purpose and basis of this section were discussed at 43 FR 41693 (Sept. 18, 1978). The reference to the minimum standards for acceptable newspaper advertisements has been changed to reflect the renumbering of this provision as Section 786.11.

1. Comments were specifically solicited on the amount of time to allow for filing after the last date of publication. Commenters responded that proof of publication could be delayed up to two months after the last advertisement publication in small rural newspapers. OSM believes, however, that adequate proof of publication can be provided in less time, since the regulation does not require the proof necessarily to be prepared by the newspaper's employees, although this is common in many areas. Four weeks was suggested frequently to be a reasonable length of time that would not unduly delay the processing of the application. The comments were accepted. The time has been extended to not later that four weeks after the last date of publication.

2. Some commenters objected to the requirement of submitting proof of publication, since it is not specifically required by sections 507(b)(6) or 513(a) of the Act. The proof of publication is intended to aid the regulatory authority to determine if the requirements of Section 513(a) of the Act has been met. Moreover, under Sections 102 and 510 of the Act, the applicant must prove, in fact, that preconditions for approval of a permit have been met. To satisfy this burden, the regulatory authority needs to be supplied with proof of publication.

3. Many commenters objected to the requirement that proof of publication of the newspaper advertisement be furnished with the application. Section 513(a) of the Act requires that an applicant submit a copy of the advertisement at the time of submission of the application. It further specifies that "at the time of submission (of an application) such advertisement shall be placed by the applicant in a local newspaper . . .'' Proof of publication is, therefore, not being required at the time of submission of the application under the final rules.

4. Other commenters were concerned that the rules as proposed in September would completely prevent submitting a "complete application,'' if the application and proof of publications are elements in determining the completeness of an application. Section 778.21 has been modified to state that the newspaper advertisement and the proof of publication are to ultimately be made part of a complete application, after all proof of publication is made available at the end of the advertisement process.

SUBCHAPTER G -- SURFACE COAL MINING AND RECLAMATION OPERATIONS PERMITS AND COAL EXPLORATION PROCEDURES SYSTEMS, 30 CFR PART 779 -- SURFACE MININING PERMIT APPLICATION-MINIMUM REQUIREMENTS FOR INFORMATION ON ENVIRONMENTAL RESOURCES INTRODUCTION 1. Part 779 establishes the minimum standards for the Secretary's approval of permit application requirements under regulatory programs regarding information on existing environmental resources that may be impacted by the conduct and location of the proposed surface mining activities. It corresponds to part 783 for underground mining activities. With the information required under part 779, the regulatory authority is to utilize information provided in mining and reclamation operations plans under part 780, in order to determine what specific impacts the proposed surface mining activities will have on the environment and whether the activities will comply with part 816 of subchapter K. The authority, basis and purpose of part 779 were generally described at 43 FR 41694 41699 (Sept. 18, 1978).

{15027}Some editorial changes have been made to improve the clarity and usefulness of part 779. Sections 779.21 and 779.26 of the proposed rules, both of which relate to soil resources, have been combined into section 779.21 of the final rules. A new section 779.27 has been added by transfer of parts of the material covered by section 785.17 of the proposed rules relating to prime farmland identification.

2. A wide variety of comments were received on proposed part 779 and a number of changes were made in the final rules. Numerous comments were received objecting, generally to provisions of part 779 requiring applications to describe resources for the entire mine plan and adjacent areas, in addition to the proposed permit area.

The Office has not adopted these comments completely, but has made substantial changes in the final rules, most of which narrow the geographic scope of the rules in the direction suggested by the commenters. In some sections, information on the mine plan and adjacent areas is still required, for reasons discussed in the preamble to the definition of mine plan area in section 701.5 and to individual sections of part 779. However, because not all of section 779 requires such extensive information, it was decided to delete reference to mine plan and adjacent areas in the title to part 779 and in sections 779.1 779.2. Instead, the geographic scope of information to be submitted is specifically prescribed in the individual sections of part 779.

3. One commenter expressed general concern that parts 779 and 780 relied too heavily on the industry to supply application information, suggesting that neutral third-parties be assigned this responsibility. The Office has not, in general, accepted this comment, because the Act clearly provides that the industry is to shoulder the burden of proving its entitlement to a permit.

See Sections 102, 507, 508, and 510 of the Act. However, third-parties will have roles in providing data which the applicant can rely upon in the applications. See 30 CFR 779.12(b), 779.13(b), 779.20, and 779.27(c).

4. Section 779.1 provides the scope of part 779. It was shortened to clarify its meaning and eliminate redundant language from the proposed rule. Similar changes were made to 779.2. Some commenters objected to the provision of section 779.2(a) of the proposed rules, that applications present a complete and accurate description of environmental resources. These commenters suggested a variety of alternative terms such as "sufficient to reasonably project impacts,'' and "to the extent possible.'' The Office has rejected these comments. The phrase "complete and accurate'' is drawn directly from Section 510(b)(1) of the Act and insures that the Congressional policy of requiring comprehensive and precise data in applications will be achieved. 5. Other than editorial changes to improve its clarity, Section 779.4 has not changed from the proposed regulation. No comments were received on this subsection. This section is intended to place the responsibility on the applicant to supply the permit application information required by Part 779, except where specifically excepted in Part 779.

See 30 CFR 779.13. It also specifies that State and Federal agencies are responsible for supplying certain information for permit applications as expressly specified in Part 779. Sections 102, 201, 501, 507, 508, and 510 of the Act provide the authority for this section.

SECTION 779.11 General requirements.

Section 779.11 provides a general explanation of the information concerning environmental resources that must be included in a permit application and the areas for which such information must be provided. The authority, basis and purpose for this section were discussed at 43 FR 41694 (Sept. 18, 1978).

1. Several commenters suggested that this section be supplemented by a requirement that each application must contain a narrative summary understandable to the lay person. OSM has not adopted this change, because this information is being required for review by the regulatory authority to determine compliance with the permanent performance and design standards; OSM expects that regulatory authority staff will be available to explain the material in the application to the lay person. 2. Other commenters suggested limiting these requirements to only such information as is practically available and to just those known environmental resources in adjacent areas, in order not to impose a burden on permit applications or hold them responsible for information on areas where they have no legal access. OSM has not accepted these changes for the following reasons. First, under Section 510(a) of the act, permit applicants have the burden of proving that they can mine in conformance with the requirements of the Act and, to the extent that information needed to meet that burden is not already available from secondary sources, it must be developed by the applicant as completely and accurately as possible. Second, concerning access to adjacent areas, applicants will be able to provide suitable alternative information from secondary sources, such as data from similar or nearby areas, expert opinion, or modeling.

700 SECTION 779.12 General environmental resources information.

The authority, basis and purpose of this Section were generally discussed at 43 FR 41694 (Sept. 18, 1978). Paragraph (c) of the proposed rule was moved to Section 778.13(g) in the final rule and is discussed in further detail in the preamble to that Section.

Section 779.12(a) requires that a surface mining activities permit application identify and describe each portion of the mine plan area for which individual permits will be sought; the required information concerns the size, sequence, and timing of each such portions of the mine plan area (i.e., individual permit areas).

The language of the final regulation has been modified to clarify its meaning. These narrative requirements are complemented by the maps and plans provisions of Sections 779.24(c) and 780.14(a). The phrase "total life'' of the mining operation and "throughout the operations'' are used interchangeably in these Sections. This terminology has been added to ensure that the narrative information is supplied for the entire area that will be mined as part of one continuous mining operation, regardless of how the operator divides the entire mine into subunits (e.g., "permit areas'') for the purposes of individual permit applications. (See Section 508(a)(1) of the Act.) The information required under Section 779.12(a) will be used, first, to designate individual permit areas in accordance with the definition of "permit area'' in 30 CFR 701.5 and the permit term limitations of 30 CFR 776.25(a). It also will serve, along with the information of Sections 779.24(a) and 780.14(a), to allow the regulatory authority to designate appropriate incremental performance bonding under Subchapter J. The sequencing of operations also will enable the regulatory authority to predict the cumulative impacts on the hydrology of the general area, together with that of all anticipated mining in the area, as required by Sections 507(b)(11), 510(b)(3), of the Act, and 30 CFR 786.19(c). In addition, the regulatory authority will be able to evaluate the pace of the operations, impacts on other protected resources, such as fish and wildlife, land uses, and prime farmland. In that regard, comments suggesting that Section 779.12(a) be limited to the permit area only were rejected, because Section 508(a)(1) clearly provides for this information to be supplied for the entire life of the proposed operations (See also the Preamble to the definition of mine plan area in Section 701.5.) {15028}Section 779.12(b) is adopted to ensure that the regulatory authority has enough information to enable it to determine whether surface mining activities will comply with 30 CFR Sections 761.11 and 786.19(e). The authority, basis, and purpose of this Paragraph were discussed at the Preamble to the proposed regulations at 43 FR 41693 41694 (September 18, 1978).

1. A number of commenters recommended that the language in proposed Section 779.12(b) concerning paleontological, cultural, historic and unique geological features be deleted. In the final regulation, only cultural, historic, and known archaeological features are required to be identified. The reason for the deletion of paleontological and unique geological features is that the Act and the National Historic Preservation Act (NHPA) require only that man-made cultural, historical, and archaeological features be protected in the mining permit process. The extent to which non-man-made cultural, historic, and archaeological features may be protected by the Act is discussed in the Preamble to final regulation Section 779.22. Paleontological and unique geological features are to be protected by Parts 764 and 765 of the final regulations through petitions for designations of lands as unsuitable for mining.

2. Many commenters were concerned about the burden of identifying the resources listed in the proposed regulations. A number of commenters recommended that only known features be covered. Several commenters also suggested that only "important'' or "significant'' resources be protected. These commenters claimed that the Act does not authorize the broader language of the proposed rule and argued that permit applicants ought not be required to conduct surveys. Another commenter suggested that the Section should be more specific in its requirement of identification of historic resources as to the nature of the investigation required. This commenter recommended that applicants be allowed to rely on any State surveys of such resources. A commenter suggested that the regulatory authority should have the responsibility of locating the protected features, arguing that States already have the personnel to locate these features. A commenter also stated that this regulation would require applicants to prepare an environmental impact statement for every mine and that Federal and State agencies should take responsibility for gathering all the information.

In the final rules, the Office requires identification of two categories of cultural and historic properties. First, properties listed or eligible for listing on the National Register of Historic Places must be identified. By definition, these items are important and known. Second, other known archaeological properties must be identified to ensure that the regulatory authority and the public are apprised of those properties which may be entitled to listing on the National Register. Regarding conduct of the application investigation by the regulatory authority, the Office has not specified this, because it is the responsibility and burden of the permit applicant to establish its entitlement to a permit.

See Sections 102, 507, 508, 510 of the Act. However, under the final regulation, much of the required information would be available from State and Federal agencies. This should greatly reduce the burden of investigating.

3. A commenter suggested that, rather than requiring information on all the listed features for every permit area, only data "appropriate'' to the specific permit area should be required. OSM rejected this suggestion, because the purpose of the requirement is to identify what protected features are present in the first place. In addition, it would be impossible to determine what data would be "appropriate'' without first knowing what features exist on the mine plan area. OSM rejected the suggestion that only those features "which may be adversely affected'' by mining activities be covered for the same reason.

4. A number of comments concerned the geographic scope of the informational requirements. Several commenters suggested that "mine plan area'' be replaced by "permit area.'' This comment was rejected. Sections 102 and 522(e) of the Act and the NHPA protect cultural and historical features whether onsite or offsite.

A commenter suggested replacing "adjacent area'' with "permit area,'' stating that the Act requires information only for the permit area. However, the commenter offered no support for this proposition. Another recommended that "adjacent area'' be deleted, arguing that the Act does not authorize the requirement, that it would be costly in time and money to comply, and that the applicant may not even have the legal right to enter adjacent property to survey it. In regard to the problem of access to areas which the applicant has no legal right to enter, this issue is discussed in the Preamble to Section 779.11. In addition, the required information will frequently be available from government agencies. In regard to the other objections, Sections 102 and 522(e) of the Act and the NHPA protect cultural and historical features off the mine site as well as on it.

700 5. A commenter suggested that the rule be changed so that listed features need only be identified if the regulatory authority so requires. This commenter stated that the proposed regulation is broader than Section 507(b)(13) of the Act requires. However, Section 507(b)(13) states that the permit application "shall'' contain "all'' man-made features and known archaeological sites, which indicates that the regulatory authority lacks discretion to waive the requirements. In addition, Sections 102 and 522(e)(3) of the Act, and the National Historic Preservation Act require protection of all important cultural and historical properties.

6. Another commenter recommended that applicants be required to perform a resources survey in accordance with accepted professional standards and practices. The rationale was that identification of some cultural resources allegedly require statistical prediction. OSM rejected this suggestion as unnecessary, because Section 779.2 requires that applications be "accurate.'' Thus, the regulatory authority can insure that accurate predictions are made under Section 779.2. 7. A commenter suggested that Section 779.12(b) should require a plan for historic resources which would show the effects of mining on these resources and how they would be preserved. OSM rejected this suggestion as unnecessary, because parts 761 and 780 adequately provides for such plans.

8. A commenter stated that Section 779.12(b) was too restrictive and inconsistent with other regulations concerning historic places. This commenter recommended that historic places be described throughout the regulations as resources with scientific, historical, archaeological, topographic, geological, ethnological, cultural, or recreational significance, with particular concern for Indian history and culture. Sections 764 and 765 of the regulations already provide for protecting these other resources, and States may protect them further if they so desire. These permanent program regulations do not apply to mining on Indian reservations; at present, 25 CFR 177 controls such mining. 9. A commenter recommended that, where a State permit application identifies historic resources which under the regulations would be referred to the State's historic preservation officer, that Officer should evaluate the significance of the resources, based on their eligibility for listing on the National Register of Historic Places. Another recommended that the regulation require consultation with State historic preservation officers. These changes are unnecessary, as Sections 761.12 and 770.12(c) already provide for such coordination.

SECTION 779.13 Description of hydrology and geology: General requirements.

Authority for this Section is Sections 102, 201(c), 501(b), 503, 504, 506, 507(b), 508(a), 509, 515(b), 517, and 519 of the Act. This Section requires that all applications contain a statement of the geology, hydrology, and water quality and quantity for all lands within the proposed mine plan area, the adjacent area, and the general area, in accordance with the more detailed requirements of Sections 779.14 779.17 of this Part.

The requirements of Section 779.13 specify, in general, the obligation of the applicant to set forth in the application sufficient information so that it provides the determination required by Section 507(b)(11) of the Act and 30 CFR 780.21(c), and so that the regulatory authority can make the cumulative impacts assessment required by Sections 507(b)(11) and 510(b)(3) of the Act and 30 CFR 786.19(c).

Section 779.13 will require the applicant to set forth in the application all data regarding the description of the "general area,'' as defined in 30 CFR 770.5. This is in keeping with Congress' intent that the applicant set forth all information necessary for the determination of the impacts of proposed operations on the hydrologic balance. ( See H.R. Report No. 95 218, 95th Congress, 1st Session at 111, 1977.) However, it should be noted that for actual collection of that data, the applicant may, at his/her option, rely on State and Federal agencies for the description of areas outside the mine plan area Section (779.13 (b)(1)). Of course, if that information has not yet been collected, then the applicant either will have to collect it, or wait until government agencies make it available (Section 779.13(b) (2) (3)), as provided for in Section 507(b)(11) of the Act.

At the initiation of the permanent regulatory programs, Section 779.13(b)'s requirements are not expected to result in the disruption of existing surface mining activities. It is expected that State and Federal agencies will have collected the necessary data in many areas by the summer of 1980, when State and Federal programs commence, especially through the efforts of the U.S. Geological Survey. If the data has not been made available and the applicant chooses not to collect, but rather to wait for government efforts, then, through 30 CFR 771.13(b), the applicant may continue to conduct existing operations under the interim regulatory program until an initial decision is made on the new permit.

Section 779.13(c) in the final rules has been adopted for two principal reasons: First, it reflects the comments responding to the Office's call for submission of views on the utility of water modeling in the permit process at 43 FR 41695 41696 (Sept. 18, 1978). These comments, in balance, noted that water modeling has not yet reached a state of the art to be a universally acceptable tool, although it is sufficiently developed for use in some localities. Thus, the Office has specified in Section 779.13(c) that modeling may be used, but is not being mandated.

In addition, Section 779.13(c) is adopted to account for the substitution of representative "seasonal variation'' descriptions for mandatory "one-water year'' data collection requirements at Section 779.16 (a), (b)(1) of the proposed rules. As is explained in more detail in the Preamble to Section 779.16, the Office expects that the requirements of that Section can be met in many cases without the necessity of the applicant actually collecting one full year of data, but, instead, by extrapolating from existing data on the same or similar watershed through the use of modeling or other predictive tools.

Therefore, Section 779.13(c) provides for the means to satisfy the requirements of Section 779.16. Section 779.13(c) is qualified, to insure that models do not fail to provide all information necessary to satisfy the requirements of Sections 779.14 779.17.

Modeling in this context refers to various analytical techniques used to regionalize and synthesize the historical, geologic, and hydrologic conditions of a mine plan area, to determine surface and ground water parameters. Some models may be developed to predict how proposed surface mining and reclamation operations may impact on the ground and surface water systems. Such mathematical models may be both cost-effective and expedient in complex mining operations, since they may include many individual mining operations that impact on one or more hydrologic components such as a large and important aquifer.

1. Numerous commenters tended to be negative, fearing mandatory modeling, and expressed concern over model verification and calibration, state of the art, accuracy, and cost. On the other hand, some suggested that minimum, maximum, and average discharges may be subject to wide errors, if based upon data obtained for a relatively short period of time (one year) and that those discharge parameters would be more reliable if obtained from a regional (synthesized) analysis through modeling. The value of modeling ground water systems and regionalizing or synthesizing discharge quantities is recognized.

700 Modeling or synthesis must be based upon conditions at (or near) and applicable to the hydrologic conditions of the mine plan area. The regulatory authority must approve modeling techniques to be used and may require that some site-specific information be obtained. Technical literature on modeling that may be helpful to the user are: Arnett, R. C., Deju, R. A., Nelson, R. W., Cole, C. R., and Gephart, R. E., 1976. Conceptual and mathematical modeling of the Hanford ground water flow regime. (Prepared by Atlantic Richfield Hanford Co., Richland, Wash., for U.S. Energy, Research and Development Administration.) Report ARH ST 140, 103 pp.

Bachmat, Yehuda; Andrews, Barbara; Holtz, David; and Sebastian, Scott. 1978. Utilization of numerical ground water models for water resources management. Chapters 3.5., U.S. Environmental Protection Agency Report EPA 600/8 78 012, 178 pp.

Davis, S. N., and DeWiest, R. J. M. 1966. Applications of ground water flow. pp. 201 259 (Chapter 7) in Hydrogeology, John Wiley and Sons, New York, 463 pp. DeWiest, R. J. M. 1965. Numerical and experimental methods in ground water flow. Chapter 8 in Geohydrology, John Wiley and Sons, New York, pp. 318 348.

Gelhar, L. W. 1974. Stochastic analysis of phreatic aquifers, American Geophysical Union, Water Resources Research, Vol. 10, No. 3, pp. 539 545.

Gelhar, L. W., and Wilson, J. L. 1974. Ground water quality modeling, Ground water, Vol. 12, No. 6, pp. 399 408.

Gillham, R. W., and Farvolden, R. N. 1974. Sensitivity analysis of input parameters in numerical modeling of steady state regional ground water flow. Amer. Geophysical Union, Water Resources Research. Vol. 10, No. 3, pp. 529 538.

Huntoon, P. W. 1974. Finite difference methods as applied to the solution of ground water flow problems, Wyoming Water Resources Research Institute, Laramie, 108 pp.

Konikow, L. F., and Bredehoeft, J. D. 1974. Modeling flow and chemical quality changes in an irrigated stream aquifer system, American Geophysical Union, Water Resources Research, Vol. 10, No. 3, pp. 546 562.

Kunkel, Fred. 1973. Data requirements for modeling a ground water system in an arid region, U.S. Geological Survey Water-Resources Investigations, WRI 4 73, pp. 1 14, 21 pp.

Meyer, C. F. and Kleinecke, D. C. 1968. Development of capabilities for mathematic modeling of ground water flow by use of digital computers. General Electric Company_Tempo, Santa Barbara, Calif., Report 68TMP 96, Section 2, 39 pp., and appendixes.

Nelson, R. W. 1978. Evaluating the environmental consequences of ground water contamination, parts 1 4, American Geophysical Union, Water Resources Research, Vo. 14, No. 3, pp. 409 450.

Ott, W. R., editor 1976. Environmental modeling and simulation, U.S. Environmental Protection Agency Conference, April 19 22, 1976, Cincinnati, Ohio. Proceedings, Chapter 13, 19., EPA Report 600/9 76 016, 847 pp. (Available from U.S. Department of Commerce, NTIS PB 257.) Polubarinova-Kochina, P. Y. 1962. Approximate numerical and graphical methods in the study of unsteady ground water flow, Chapter XVI in his Theory of Ground-water Movement, Princeton University Press, Princeton, N.J., pp. 572 588.

{15030}Polubarinova-Kochina, P. Y. 1962. Graphical, numerical, and experimental methods in the study of ground water flow, Chapter XI in his Theory of Groundwater Movement, Princeton University Press, Princeton, N.J., pp. 431 479 U.S. Environmental Protection Agency and the National Water Well Association. 1976. Proceedings of the third national ground water quality symposium. Groundwater pp. 455 462, Special issue, Vol. 14, No. 6, pp. 257 492.

Zand, S. M., Kennedy, V. C., Zellweger, G. W., and Avanzino, R. J. 1976. Solute transport and modeling of water quality in a small stream. U. S. Geological Survey, Journal of Research, Vol. 4, No. 2, pp. 233 240. The information required in Section 779.13 will enable the regulatory authority to determine whether the applicant can comply with the requirements of Sections 816.13 15, 816.31 39, 816.41 57; 816.71 73; 816.81 88; and 816.91 93 of Subchapter K. The technical literature used to develop Sections 779.13 779.17 was the same as used for the quoted Sections of Subchapter K, plus additional materials noted in this portion of the Preamble.

2. A few commenters questioned the benefits of requiring water-well monitoring data in permit applications, where the nearest citizen users of ground water are over one mile from the mine site. The Office did not modify the regulations in response to the comment.

Congress required that permit applications contain detailed information on the ground water hydrology characteristics of areas on and off proposed mine sites under Sections 507(b)(14), 507(b)(15), and 508(a)(13) of the Act.

Benefits obtained by this information include enabling evaluation by the regulatory authority of whether the proposed operations will adversely affect aquifers supplying water for offsite beneficial use. Ground water can travel long distances underground and pollution can take a long time to travel through those aquifers. (Hardaway and Kimball, Coal mining and ground water, 1978, p. 18; Feder. et al., Geochemistry of ground waters in the Powder River Coal Region, 1977, 7 pp.; Hamilton and Wilson, A generic study of strip mining impacts on ground water resources, 1977, Chapter 2; McWhorter, et al., Surface and subsurface water quality hydrology in surface mined watersheds, 1977, pp. 11 70; Pennington, Relationship of ground water movement and strip mine reclamation, 1975, pp. 171 172; Grim and Hill, Environmental protection in surface mining of coal. 1974, pp. 17 27). Further, destruction of aquifers by pollution or depletion of water can be substantially intensified by the cumulative effects of mining in an area. ( See Sections 507(b)(11), 510(b)(3) of the Act; H.R. Rep. No. 94 1445, 94th Cong., 2nd Session at pages 64 65, (1976)). Thus, data from wells away from the mine plan area may be needed in a particular case to enable the regulatory authority to make the assessments required by Sections 507(b)(11) and 510(b)(3) of the Act on the cumulative impacts of all anticipated coal mining in an area on the quality and quantity of ground water systems.

The regulations do not, however, necessarily require that all ground water data be obtained for application requirements from water wells. As pointed out by a commenter, sampling of springs and other surface discharge points of ground water may provide sufficient representative data to establish ground water quality characteristics of the mine plan, adjacent and general area.

For ground water quantity, expert hydrologic opinion, based on review of existing geologic and subsurface hydrologic conditions, may suffice. Whether water wells must be used as the source of all data for application requirements is a discretionary matter for the regulatory authority to determine, on a case-by-case basis.

In many cases, even if wells are needed, they can be based on the drill/bore holes made to locate coal deposits and provide other subsurface information which the applicant needs independent of the hydrology permit application requirements. ( See Grim and Hill, 1974, at 21 23.) Of course, if the proposed operations should significantly affect an aquifer, then wells must be installed for monitoring purposes prior to mining operations. ( See Section 517(b) of the Act; 30 CFR 816.52.) 3. Several commenters suggested deleting "general area'' from Section 779.13(a), and added that "general area'' was not defined. These comments were rejected, because Sections 507(b)(11) and 510(b)(3) of the Act require information on the general area to be included in the permit application, and general area is defined in Section 770.5. Commenters requests that a "confidentiality'' provision be added to Section 779.13 were rejected, because that matter is covered under Section 786.15.

4. Several commenters questioned whether Section 779.13(b) should relate to the "area outside the proposed mine area'' or the entire "general area.'' Section 507(b)(11) of the Act requires information on the general area. As the Office interprets the Act, data collection for the actual area to be mined and reclaimed (e.g. the "affected area'') remains the applicant's responsibility, while for the remainder of the general area, the applicant may rely on the government to provide the data for inclusion in the application. Thus, changes were made to specify the appropriate area. The same change was made in Section 783.13(b).

700 5. Several commenters on Section 779.13(b)(2) questioned who should be required to obtain the data which is not available from an appropriate Federal or State agency. One alternative would require that the applicant "shall'' gather and submit the data. Another alternative would require that the applicant "may'' gather and submit the data in the permit application. A third alternative would be to require an appropriate Federal or State agency to gather and submit information on the general area when an application is filed for an area on which information has not been previously collected.

It is the applicant who is seeking permission to mine, and Congress clearly intended that no permits be issued until the probable hydrologic consequences are known. (Section 507(b)(3) of the Act.) It is impractical to require government agencies to embark upon extensive new data collection programs in the field in response to every individual permit application. Cost-effective data collection efforts will require management of field programs to mesh data acquisition with localities where large numbers of applications are pending, critical water resources are located, or little existing data is on hand.

Also, Congress recognized this problem of data collection and provided assistance for small operators under Section 507(c) of the Act ( see Part 795).

Thus, it was decided to specify in the rules that the applicant can chose either to wait until a government agency can provide the data or to collect the data with or without small operator's assistance. Therefore, the word "shall'' was replaced by "may'' in Sections 779.13(b)(2) and 783.13(b)(2).

6. Several commenters suggested that Section 779.13(b)(3) be modified to allow the regulatory authority to begin processing an application that is incomplete for lack of all the hydrologic and geologic data necessary to comply with Sections 779.13 779.16. Accepting this alternative would assume that the application be deemed "complete'' pending gathering data or waiting for available data to be provided. The Office rejected this proposal, because it could cause considerable administrative problems and result in confusion as the regulatory authority and public attempted to trace or follow such partial applications. For example, if the application were completed later, the net time and cost involved would be greater for reviewing a partial application two or more times, than reviewing an initial application that was complete. It also is imperative that data supplied with the application be complete so that the regulatory authority can assess the reclamation plan. The Office believes that the application review process would suffer if it were allowed to proceed with piece-meal information on the hydrologic balance, as this information is crucial to successful mine planning. The requirement, however, is not intended to preclude preliminary discussions among the applicant, the regulatory authority, and the public leading to the formal administrative decision of whether the application is "complete'' under 30 CFR 786.11 and 786.17(a)(1).

{15031}7. Several comments were received which suggested specifying the term "surrounding area,'' and deleting reference to other terms in Section 779.13(b). The Office recognizes that "surrounding areas'' are used in the Act in various Sections, in particular Section 507(b)(11), but Congress did not define the term. The Office has developed the terms "adjacent area,'' "mine plan area,'' "affected area,'' "permit area'' and "general area'' in order to delineate specific areas appropriate to all Sections of the regulations. The Office feels that these terms are within the intent of Congress. The term "general area'' is defined Section 770.5 to correlate with what Congress meant by "surrounding area'' in Sections 507(b)(11) and 510(b)(3) of the Act.

8. Many commenters feared that pre-existing data would not be useful for the requirements of Section 779.13 and that new field data are required for all permits. That is not the intent of the regulations. However, Congress has mandated that there be data in the application "sufficient . . . for the mine site and surrounding areas so that an assessment can be made by the regulatory authority of the probable cumulative impacts of all anticipated mining in the area upon the hydrology of the area and particularly upon water availability'' ( see Section 507(b)(11) of the Act). Therefore, if the pre-existing and available data are not sufficient for a regulatory authority to make an objective determination based on facts, then new data must be collected that will be sufficient.

SECTION 779.14 Geology description.

Legal authority for this Section is Sections 102, 201, 501, 503, 504, 506, 507, 508, 515, 516, and 517 of the Act. This Section implements requirements of the Act for providing an adequate geologic description to the regulatory authority of all lands to be affected throughout the duration of surface mining activities. The information required under this Section will enable the regulatory authority to make the general area assessments required by Sections 507(b)(11) and 510(b)(3) of the Act, and to determine whether the applicant can comply with the requirements of Sections 816.13 .15, 816.41 .59; 816.61 .68; 816.71 .74; 816.79; 816.91 .93, 816.99, 816.133 and 816.150 816.181 of Subchapter K. Technical literature relied upon for developing this Section follows: 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. Caruccio, F.T. et al., 1977(s) Paleoenvironment of coal and its relation to drainage quality, U.S.E.P.A., Interagency. Energy-Environment Research & Development Series Report EPA 600/7 77 067, 108 pp.

Dollhopf, D.J., Hall, W.D., and others, 1977. Selective placement of coal stripmine overburden in Montana. (U.S. Bureau of Mines contract report HO262032.) Montana State University, Montana Agricultural Experiment Station. Vol. I, Data Base, 109 pp.; Vol. II, Initial field demonstration, 98 pp.

Emrich, G.H., and Merritt, G.L. 1969. Effects of mine drainage on groundwater, Groundwater, Vol. 7, no. 3, pp. 27 32.

Grim, E.C., and Hill, R.D. 1974. Environmental protection in surface mining of coal. U.S. Environmental Protection Agency Publication EPA 670/2 74 093, 276 pp.

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.

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), 156 pp.

Pfleider, E.P., editor, 1968. Surface Mining. American Institute of Mining, Metallurgical, and Petroleum Engineers, Inc., New York, 1,061 pp.

Ralston, D.S., and Wiram, V.P. 1978. The need for selective placement of overburden and equipment considerations. American Mining Congress Journal. Vol. 64, no. 1, pp. 18 24.

Sobek, A.A., Schuller, W.A., Freeman, J.R., and Smith, R.M. 1978. Field and laboratory methods applicable to overburdens and minesoils. (Prepared by West Virginia University in cooperation with the West Virginia Geological and Economic Survey, Morgantown, W. Va.) U.S. Environmental Protection Technology Series Report EPA 600/2 78 054, 204 pp.

U.S. Department of Agriculture, 1977. Laboratory methods recommended for chemical analysis of mined-land spoils and overburden in western United States. U.S. Department of Agriculture, Agriculture Handbook 525, 31 pp.

U.S. Environmental Protection Agency, 1976b. Erosion and sediment control_Surface mining in the eastern United States; Vol. 1, Planning; Vol. 2. Design. U.S. Environmental Protection Agency Technology Transfer Seminar Publication EPA 625/3 76 006. Vol. 1, 102 pp.; Vol. 2, 137 pp. (Available from U.S. Department of Commerce, NTIS PB 261 343.) U.S. Geological Survey. 1974a. Proposed plan of mining and reclamation, Big Sky Mine, Peabody Coal Co., coal lease M 15965, Colstrip, Montana, USGS final environmental statement, FES 74 12, vol. 1,438 pp., vol. 2 various pagings.

700 Paragraph (a) of Section 779.14 specifies the general requirement to be implemented through specific steps identified in Paragraph (b). The language of Paragraph (a) was shortened from the proposed rule to eliminate ambiguity and redundancy. However, its intent remains the same; the application is to contain a general description of the geology for the entire mine plan area.

Geology is to be described for all strata down to that strata immediately below the lowest coal seam to be mined, and to the lowest aquifer in which surface mining activities are actually conducted or located (e.g. "affected''). Thus, if operations involve blasting which fractures strata below the lowest coal seam to be mined and extends in to a lower aquifer, (Grim and Hill, 1974 pp. 2; Grubb and Ryder, 1972 pp. 25; USGS, 1974a, v. 1 pp. 120), geology must be described down to and including that aquifer. Section 779.14(b) specifies the methods by which the data is to be collected to make the geologic description, and detailed types of data needed.

1. Regarding commenter's concern that the permit regulations should require only information for the immediate permit area and not the entire mine plan area, the Office has modified Section 779.14 in the final rules to limit its sweep. First, Section 779.14(a) has been revised to require that, at a minimum, the application contained a general description of the geology of the mine plan area. This description is needed so that the regulatory authority can assess the cumulative impacts of all anticipated coal mining in the "general area,'' because geologic conditions are major factors in determining the effect of mining on ground and surface waters. ( See Final EIS at pp. B III 30 36.) Section 779.14(b), however, was modified in the final rules, to eliminate the mandatory requirement that the application contain data derived from test borings and core samplings for the entire mine plan area. Instead, minimum requirements may be satisfied by the inclusion of such data for only the first permit area within the mine plan area and sufficient data from other sources for the balance of the mine plan area, to satisfy Section 779.14(a)'s "general description.'' This change was made upon the Office's understanding that many coal-bearing areas of the United States have been mapped by public and private sources which can provide sufficient data to give a general description of the portion of the mine plan area outside the first permit area. However, if that general data is not available, or local situations require more precise information, the regulatory authority is empowered to require that the applicant perform more detailed testing under Section 779.14(b)(2).

{15032}Section 779.14(b)(3) implements the provisions of Section 507(b)(15) of the Act, by allowing for a waiver of submission of the results of test borings or core samplings to the regulatory authority where other equivalent information is available to the regulatory authority.

2. A comment on the proposed version of this Section suggested that it be revised to state explicitly that the application contain the information upon which a waiver is to be granted. This was rejected as redundant. Under Parts 771 and 786, the application must always be "complete,'' which includes, by implication, the type of information referred to by the commenter.

3. Other commenters on the waiver provision suggested deletion of the condition for approval that equivalent information be available to the regulatory authority. These comments were not accepted, because the Office interprets Section 507(b)(15) of the Act to authorize waivers only if the results of analyses of test borings or core samplings is "unnecessary'' because other information is available to enable the applicant to bear its burden of proof that reclamation of the proposed operation will be feasible and the hydrologic balance will be adequately protected. ( See Sections 102, 508(a)(12), 510(b)(1) (3), of the Act.) Moreover, unless other equivalent information is accessible, the public will not have the opportunity to review and comment on it, frustrating the requirements of Sections 102(i), 507(b)(17), 508(a)(12), 513, 514, and 517(f), of the Act.

4. Several commenters suggested that the proposed rule be modified to add explicit confidentiality protection requirements. This was not done, because such protection is adequately provided under 30 CFR 786.15.

5. Several commenters objected to the provisions of Section 779.14(a) of the proposed rules with respect to the depth to which geology was to be described in permit applications, arguing that requiring description of aquifers and strata below the lowest seam to be mined was beyond the authority of the Act and unnecessary. The Office did not accept these comments, because this information is needed for the regulatory authority to evaluate impacts of proposed operations on ground water systems under Sections 507(b)(11), 508(a)(13), and 510(b)(3) of the Act. Coal mining can adversely effect ground water aquifers below the lowest coal seam to be mined (Emrich and Merritt, 1969, pp. 27 32). Moreover, the information on the general location and nature of strata below the lowest seam to be mined is ordinarily available in the form of drilling and water-well records from various state and county publications and records and from geologic maps and reports of the U.S. Geological Survey. Information is also available ordinarily from general mapping, drilling, and water well records in the general locality of the mine, so that test boring or core sampling may not be necessary for strata immediately below the lowest seam to be mined.700 Recognizing that test boring or core sampling may not always be necessary for strata below that which is immediately below the lowest seam to be mined, the final rule was modified to require analyses of borings or samplings under Section 779.13(b)(1) only down to and including the strata immediately below the lowest mined seam. Discretion to require these analyses at deeper depths is reserved to the regulatory authority under Section 779.14(b)(2).

6. Several commenters questioned the need for the items of analyses listed in the proposed rule, with respect to test borings or core samplings, while others supported these requirements. Some commenters questioned the need for both T1test borings and core samplings. These were accepted, as Section 507(b)(15) of the Act allows for either boring or core analyses. The Office has, however, retained the requirement to be in the final rule, because the listing is needed so that the regulatory authority can determine the projected impacts of the proposed operations on the hydrologic balance, as required by Sections 507(b)(11), 507(b)(14), 507(b)(15), 508(a)(5), 508(a)(12), 508(a)(13), and 510(b)(2) (3) of the Act.

Section 779.14(b)(1)(i) is expressly required by Section 507(b)(14) of the Act.

Section 779.14(b)(1)(ii) requires production of a statement of the logs of drill holes to show lithologic characteristics and thickness of each stratum and coal seam. Description of these items is required by Section 507(b)(14) (15) of the Act. Deriviation of these items from the drill logs is needed because the logs will show: "which conditions warrant special mining or soil handling methods . . . form a basis upon which to select the proper mining methods and equipment'' (Grim, and Hill, 1974, pp. 22; Pfleider, 1968 p. 212.).

7. Commenters objected to requiring drill log statements on the grounds that use of terminologies among geologists is believed to be so divergent that the statements would not be meaningful. The Office is aware that ambiguity may result from application of local geologic terminology, particularly colloquial descriptors of geologic formations and units. However, the intent of the Act is to provide not so much the proper names of formations, but a proper description of rock type and characteristics as related to the ground water system. These statements are required by the Act. ( See Section 507(b)(15) of the Act.) The Office thus does not agree with the commenters. If necessary, particularized standardization may be developed by the States and/or the Office for use in the individual regulatory programs.

Section 779.14(b)(1)(iii) requires a description of the physical properties of the strata within the overburden, including, at minimum, compaction and erodibility tests. These are required under the provision of Section 507(b)(14) of the Act calling for a statement of the "nature . . . of the various strata of the overburden.'' Knowledge of the physical properties of the overburden is necessary to provide information for predicting toxicity formation, revegetation potential, physical stability, erosion potential, water conductivity, and for long-term management decisions. A major objective of reclamation is to establish a permanent vegetative cover; these efforts are directly related to soil stability and productivity (U.S. EPA, 1976b, vol. 1, pp. 23 58) and to the extent that toxic-forming materials can be prevented from oxidizing (Sobek et. al., 1978, p. 117). Knowledge of the physical properties, such as settling and compaction characteristics, is useful in determining the manner in which spoil should be placed and otherwise replaced in order to minimize erosion and maximize revegetation (Grim, and Hill, 1974, p. 152, 153).

8. For the above reasons, the Office did not agree with commenters suggesting complete deletion of physical property test requirements. However, because of the impracticability of performing particle size analyses on consolidated rock, the Office did agree with comments objecting to routinely requiring size analysis.

Section 779.14(b)(1)(iv) requires statements of chemical analyses of the overburden and strata immediately below the coal to be mined, to identify those portions which contain potentially alkaline, acid, or toxic-forming materials. These requirements are based principally on Sections 507(b)(14), 507(b)(15), and 508(a)(12) of the Act and will be used by the regulatory authority to evaluate the potential of the proposed operation to produce acid or other toxic drainage requiring special treatment and prevention measures. (Grim and Hill, 1974, at 22 24). Analysis of potential alkalinity of the overburden and substrata is necessary to determine if the proposed operation will involve materials which may provide sufficient buffering capacity to neutralize or mitigate acid or other toxic drainage (Sobek, et al. 1978, pp. 5, 47).

{15033}9. The Office did not agree with commenters that overburden chemical analyses should not be required. They are mandated by the Act and supported by the technical literature. (Sobek, et al. 1978, pp. 3 6; Grim and Hill, 1974, pp. 22 24); Pfleider, 1968, p. 212.) Section 779.14(b)(1)(v) requires analysis of the coal seams to be mined, including sulfur (expressly required by Section 507(b)(15) of the Act), pyrite, and marcasite content. Caruccio (1968) at p. 108, showed that "the amount of acidity produced is dependent in part upon the amount of iron disulfide available for decomposition . . . acidity is dependent upon the pyrite and marcasite.'' 10. One comment suggested that this Section be revised to include a mandatory requirement for a geologic map in each application. This was not adopted, because mapping of geology is adequately provided for in Sections 779.22(a)(1); 779.24(a); 779.25(a) (f), (h), (j), (k).

700 SECTION 779.15 Groundwater information.

Authority for this Section is Sections 102; 201(c); 501(b); 503; 504; 506; 507(b); 508(a); 510; 515; and 517 of the Act. This Section would require a full description of the ground water hydrology for the proposed mine plan area and adjacent area. Information collected under this Section will enable the regulatory authority to make the assessments required by Sections 507(b)(11) and 510(b)(2) of the Act and 30 CFR 786.19(c) and to determine whether the applicant can comply with Sections 816.13 .15, 816.41 .59; 816.61 .68; 816.71 .73; 816.79; 816.81 .88; 816.91 .93; 816.101 .103; 816.111 .117; 816.133, and 816.150 .180 of Subchapter K.

The occurrence and movement of ground water in coal producing areas can be complex phenomena, dependent on regional and local geologic conditions; multiple aquifers may exist, each having distinct water-bearing characteristics (USGS, 1974b, pp. 25 28). As a result of mining, the chemical quality of the ground water may change significantly in both unconfined and confined aquifer systems (Collier, et al. 1970, p. C 19). In areas where multiple aquifers exist, mining operations can easily cause aquifers containing usable water to be polluted by an acquifer containing water of inferior quality, through creating inter-aquifer connections from rock fracturing (Grim and Hill, 1974, pp. 1, 2; Emrich and Merritt, 1969, pp. 30 32). In areas where historic ground water data are not adequate to evaluate the ground water resources, the regulatory authority may need to require test drilling to provide adequate hydrologic data. (U.S. Geological Survey, 1974b, p. 6; Van Voast, 1974, p. 6.) These test holes or wells may be necessary for determining water quality in aquifers, location, and extent of aquifers, hydraulic conductivity, transmissivity, and other parameters as required. (Chow, V. T. 1964, Handbook of Applied Hydrology, McGraw-Hill. Chapt. 13 22 through 13 25.) Technical literature used to develop this Section included that used to develop Section 779.14, the Sections of the regulations listed at Paragraph one (1) above, and, in addition, the following: Collier, C. R., 1964, Influences of strip mining on the hydrologic environment of parts of Beaver Creek Basin, Kentucky. 1955 59. Chapter B in Hydrologic influences of strip mining. U.S. Geological Survey Professional Paper 427 B, 85 pp. 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. Chapter C in Hydrologic influences of strip mining. U.S. Geological Survey Professional Paper 427 C, 80 pp.

Emrich, G. H., and Merritt, G. L. 1969. Effects of mine drainage on ground water. Ground Water, Vol. 7, No. 3, pp. 27 32.

Grim, E. C., and Hill, R. D. 1974. Environmental protection in surface mining of coal. U.S. Environmental Protection Agency Publication EPA 670/2 74 093, 276 pp.

Hem, J. D. 1970. Study and interpretation of the chemical characteristics of natural water. Second edition. U.S. Geological Survey Water Supply Paper 1973, 363 pp.

Musser, J. J. 1963. Description of physical environment and of strip-mining operations in parts of Beaver Creek Basin, Kentucky, Chapter A in Hydrologic influences of strip mining. U.S. Geological Survey Professional Paper 427 A, 25 pp.

Pietz, R. I., Peterson, J. R., and Lue-Hing, Cecil. 1974. Groundwater 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, Washington, D.C., pp. 124 144.

United States Geological Survey. 1974b. Shallow ground water in selected areas in the Fort Union coal region, U.S. Geological Survey Open-file Report 74 48, 72 pp. and illustrations and tables.

Van Voast, W. A. 1974. Hydrologic effects of strip coal mining in south-eastern Montana_Emphasis: One year of mining near Decker. Montana Bureau of Mines and Econology Bulletin 93, 23 pp.

1. Regarding commenters' general objections that the permit applications should not require information on areas outside the immediate permit area, the Office decided to specify the area to be studied under Section 779.15 in the final rules. Ground water hydrology characteristics are essential elements of the hydrologic balance (H.R. Report. No. 95 218, 95th Cong., 1st Sess. at 110, 1977). The Act requires that the regulatory authority assess the impacts of the proposed and other operations on the hydrologic balance in the general area around the immediate permit area. ( See Sections 507(b)(11), 508(a)(13), 510(b)(3), of the Act: H.R. Rept., SUPRA , at 91, 113.) Therefore, knowledge of the ground water hydrology of both the mine plan and adjacent areas is essential to a satisfactory permit system.

Proposed Section 779.15 would have required permeability, transmissibility, and production data for all aquifers within the study area. In response to commenters objecting that these items are not necessary for all aquifers, either because some aquifers are small or of no utility, or equivalent information already exists from well records in the general vicinity, the Office has not made these mandatory in the final rule. If necessary, the regulatory authority can require that these types of data be provided under the authority of Section 779.13(a). 2. A commenter felt this Section should be subject to a waiver clause similar to that afforded under Section 779.14(b)(3). This comment was not accepted for several reasons. First, portions of the types of information which were mandatory in all cases in the proposed rule have been left to the discretion of the regulatory authority in the final rule at Section 779.15(b), making a waiver provision unnecessary. For the types of data which remain mandatory under Section 779.15(a), the Office concluded that Congress did not intend that a waiver be provided, because the statutory waiver for geologic information in Section 507(b)(15) of the Act relates to waiving testing types, not eliminating the need for information in the permit application. Section 779.15, unlike Section 779.14(b)(1), does not prescribe mandatory test types (e.g. core drilling or test boring), but rather calls for information which may be developed from any reasonable accurate source. Finally, the Office does not have any authority under the Act for completely waiving the requirement of a description of ground water hydrology in the application.

700 3. A commenter's assertion that Section 779.15 repeats Section 779.13 was not accepted. Section 779.15 provides the detailed requirements by which the general requirements of Section 779.13 are to be satisfied with respect to ground water information.

4. Several commenters objected to the requirements for fully describing each aquifer which may be impacted by the proposed operations. Some of these commenters asserted that some aquifers are so badly polluted or of such little utility for recharge that they can be omitted routinely from consideration in the permit review. This was not accepted. It is the applicant who must bear the burden of proof that the proposed operation will not adversely affect the hydrologic balance. ( See Sections 102, 507(b), 508(a)(12), 510 (a) (b) (2) (3) of the Act.) Thus, the application must contain sufficient information upon which the regulatory authority can decide, subject to public participation, that particular aquifers require little or no reclamation protection or monitoring. Further, Section 779.15(a) does not specify the methods by which the required information is to be obtained for inclusion in the application. The regulatory authority, therefore, will have broad discretion in determining the types and level of detail which it needs with respect to marginal aquifers. Finally, it was not within the scope of this rule-making to account for highly localized situations such as those cited by some commenters. These are more appropriately addressed in the context of individual regulatory program approvals.

{15034}5. In response to comments, the Office has narrowed the types of information that must be provided in an application under Section 779.15 in the final rules. Section 779.15(a) provides these mandatory requirements. Section 779.15(a)(1) requires description of depth and horizontal extent of ground water and is supported by the express provisions of Section 507(b)(14) of the Act. Section 779.15(a)(2) requires the lithology and thickness of aquifers and is based on the requirements of Sections 507(b)(11), 507(b)(14), and 508(a)(13) of the Act. The lithologic characteristics and thickness are important, in that they provide valuable information on the ability of the rock to contain and transport water, and on the volume of water and depth at which water will be encountered. (Grim and Hill, 1974, pp. 22 26.) Section 779.15(a)(3) requires a description of the uses of the water table and aquifers, so that the regulatory authority can evaluate the impact of the proposed operation as required by Sections 507(b)(11), 508(a)(13), and 510(b)(3) of the Act. Section 779.15(a)(4) requires a statement of the quality of all subsurface water encountered in the permit application investigation, as required by Section 507(b)(14) of the Act.

(9) Items to be required at the discretion of the regulatory authority are identified in Section 779.15(b). Information on recharge, discharge and storage characteristics may be necessary to enable the regulatory authority to make the assessment required by Sections 507(b)(11) and 510(b)(3) of the Act, and to determine whether the applicant will meet the standards of Sections 508(a)(13) and 515(b)(10)(D) of the Act. In addition, other water quality and quantity data may be required for the purposes of Sections 507(b)(11), 508(a)(13), and 510(b)(3) of the Act.

SECTION 779.16 Surface water information.

Authority for this Section is Sections 102, 201(c), 501(b), 503, 504, 507(b), 508(a), 510, 515 and 517 of the Act. Information collected under this Section will enable the regulatory authority to make the assessments required by Sections 507(b)(11) and 510(b)(3) of the Act and to determine whether the applicant can comply with Sections 816.13 .15, 816.41 .59, 816.61 .68, 816.71 .73, 816.79, 816.81 .88, 816.91 .93, 816.100 .106, 816.111 .117, 816.133, and 816.150 .180 of Subchapter K. In the proposed rule, this section covered both surface and ground water information. Requirements for the latter have been moved to and consolidated with Section 779.15 in the final rule.

Information required by this Section will establish the base-line surface water characteristics of the mine plan and adjacent areas. The Office has decided that the scope of this Section should cover the entire mine plan and adjacent area, because of the widespread impacts to the hydrologic balance that mining operations can cause, is explained in more detail in the Preambles of Sections 701.5 and 779.13. Moreover, this knowledge is needed for the regulatory authority to make the cumulative impact assessments required by Sections 507(b)(11) and 510(b)(3) of the Act and 30 CFR 786.19(c).

700 Section 779.16(a) of the final rules lists the minimum general surface water characteristics that must be described in the application. The name of the watershed which will receive discharges from the proposed operation is expressly required by Section 507(b) of the Act. The location of surface water bodies, discharges into them and their drainage systems are required under Sections 507(b)(11), 507(b)(14), 508(a)(5), 508(a)(13) and 510(b)(3) of the Act, so that the regulatory authority can understand the complex relationships in the area's hydrologic balance.

Some commenters objected to requiring a description of all streams, suggesting limitation to only perennial streams. This was not done, because the Act and Subchapter K require regulation and protection of all significant streams and springs without such a limitation. ( See, e.g., Sections 507(b)(10), 507(b)(14), 508(a)(5), 508(a)(13), 515(b)(2), 515(b)(4), 515(b)(8), 515(b)(10), 515(b)(15)(c)(iv), 515(b)(18), 515(b)(22)(D) of the Act, and 30 CFR 816.43, 816.44 and 816.57.) Detailed knowledge of all water movement in the area is necessary so that the regulatory authority can insure that the proposed operations are designed to provide for adequate control of all surface drainage. Section 779.16(a) of the proposed rules required that surface waters be described "throughout the year.'' Many commenters objected to this, asserting that it was unnecessary to have such a description for every day or week of the year and that the needed data would be very expensive. Some commenters disputed the cost impacts of this requirement, pointing out that it could be met through the use of seasonal-frequency data from which reasonable extrapolations could be made to estimate water drainage characteristics for the full year.

In the final rule, the Office has specified that the description of surface water systems be sufficient to describe seasonal variations in water quality and quantity. This is the minimum requirement of frequency allowed by the Act. ( See Section 507(b)(11), of the Act.) This language should clarify data collected daily or weekly for an entire year is not necessarily required. Moreover, it will allow for the use of extrapolation, by modeling or other reasonable predictive tools, from existing data in the same or similar watershed area to provide for the description of the mine plan and adjacent areas.

A similar modification was made in Section 779.16(b)(1), eliminating use of the phrase ". . . for a minimum of one water year . . .'' in the proposed rule. As commenters pointed out, that requirement was arbitrary, because more or less than one water year of data may be needed to characterize accurately the true seasonal variability of surface water flows. Moreover, as discussed above, it may be possible to extrapolate by predictions from existing data at other locations to describe water flows in the mine plan and adjacent areas.

Section 779.16(b)(1) in the final rules requires identification of critical low- and peak-flow discharge rates sufficient to identify their seasonal variability. This information is important to provide the regulatory authority with sufficient information on critically low volumes of water, so that effluent discharges of pollutants from the proposed operations do not exceed the assimilative capacities of those waters. Information on peak flows is needed to ensure that structures and diversions are adequate to hold, pass or divert around those flows where allowed under Subchapter K.

(See e.g., 30 CFR 816.43(a), (b), (f)(2); 816.44(b), (d): 816.45(e); 816.46(c), (d), (g), (i), (j), (k); 816.49; 816.71(d); 816.72(d), 816.73(b), (c); 817.74(d), (f); 816.83(b); 816.85(a); 816.92(b); 816.93(a), (c); 816.102(a)(2)). Peak flow information also is needed to determine if operations will be safeguarded from flooding. In the final rule, the Office accepted the suggestion of several commenters that the description of critical low and peak flows be based on identification of "discharge rates'', rather than "depth and rate of flow'' specified in the proposed rule, because discharge T1 rates are the critical issue.

{15035}Section 779.16(b)(2) lists the minimum types of surface water quality data that must be included in permit applications. It is expected that the sampling and analytical procedures used to provide the information will be done according to standard methods, identified in 43 FR 41695 (September 18, 1978).

Section 779.16(b)(2)(i) (ii) requires a description of total suspended and dissolved solids contents as expressly required under Section 507(b)(11) of the Act. Section 779.16(b)(iii) and (iv) requires a description of acidity and pH, so that the regulatory authority can determine whether special precautions are necessary with respect to acid mine drainage from the proposed operations. Regarding acidity determinations, the Office disagreed with comments suggesting that these are redundant given that pH description must also be provided. See, for example: U.S. Environmental Protection Agency 1976e_Quality criteria for water, U.S. Environmental Protection Agency, pp. 178 182.

Caruccio, F. T. 1968_An evaluation of factors affecting acid mine drainage production and the groundwater 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.

700 Total iron concentrations of surface water is to be described under Section 779.16(b)(2)(v), because knowing the pH and acid content, the regulatory authority needs to ensure that the proposed operation will include sufficient protection with respect to iron-laden and mine drainage which has been a pervasive problem in large areas of the coal regions, and which is specifically regulated under Section 816.42(a)(7). In addition, dissolved iron descriptions are being required, because it is the most toxic form of iron with respect to aquatic life. See, for example: U.S. Department of the Interior. 1975._Acid mine water, a bibliography with abstracts, U.S. Department of the Interior, Water Resources Information Center, WRSIC 75 202. (564 pages), at pp. 62, 279.

U.S. Environmental Protection Agency. 1976e._Quality criteria for water, U.S. Environmental Protection Agency, pp. 78 81.

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.

Total manganese concentrations are required under Section 779.16(b)(2)(vi), because this parameter may need to be specifically accounted for in treatment under Section 816.42(a)(7). Finally, as revealed in the technical literature, coal mining operations may release other types of water pollutants into surface waters (USEPA, 1976a, pp. 51 60). Therefore, Section 779.16(b)(2) (vii) is included to enable the regulatory authority to require additional water quality testing to account for other pollutants, if necessary.

Several commenters objected to the economic impacts of the requirements of proposed Section 779.16, although others suggested both that the levels of costs would not be excessive, if the provisions were reasonably administered, and that the commenters asserting high costs used arbitary assumptions. Most of the commenters objecting to the economic impact of proposed Section 779.16 focused on the requirements for "one water-year of data.'' As explained above, that has been replaced in the final rule to allow for a much lower field data collection effort on a national basis.

To the extent that the final rules impose significant costs on the industry, it is believed that they are both necessary and tolerable. As one commenter showed, much of the data required can be obtained well below estimates of some commenters, through careful selection of sampling sites, equipment and methodologies. Moreover, for those persons qualifying as small operators under 30 CFR Part 795, the Government will bear the costs of collecting much, if not all, information required by Section 779.16. In addition, under Section 779.13, any applicant can choose to utilize Government resources for data on areas outside the mine plan area.

This, in combination with 30 CFR Part 795, should drastically reduce the burden to the small Eastern/Appalachian operator, since the permit area for small mines will ordinarily be coextensive with the mine plan area. Thus, applicants which fit into this category can utilize 30 CFR Part 795 to obtain data for the mine plan area and governmental sources under Section 779.13 for other portions of the general area. While some costs will be incurred by the industry to satisfy the requirements of Section 779.16, it is believed that the benefits obtained will outweigh the burdens involved. ( See, H.R. Report No. 95 218, 95th Cong., 1st Sess. at 91, 113 114, 1977.) SECTION 779.17 Alternative water supply information.

Authority for this Section is Sections 102, 201, 503, 504, 507(b), 508(a), 510, 515, 517, and 717 of the Act. This Section requires identification of water sources that could be interfered with by proposed surface mining activities and the steps the applicant will take to provide alternative water sources to those affected. Information under this Section will enable the regulatory authority to make the assessments required by Sections 507(b)(11), 508(a)(13), and 510(b)(3) of the Act and to determine if the applicant will comply with Section 717(b) of the Act and 30 CFR 816.41 and 816.54.

1. Commenters objected to the scope of the proposed rule, which required coverage of water sources throughout the mine plan and adjacent areas. The Office did not alter this in the final rules. As explained in the Preamble to Section 701.5, surface mining activities can have a wide-spread impact on the hydrologic balance, extending for considerable distance from the mine site itself. Moreover, Sections 507(b)(11), 508(a)(13), and 510(b)(3) of the Act require scrutiny of the proposed operation with respect to its impacts on hydrology throughout the general area.

2. A commenter's suggestion that the phrase "legitimate use'' be replaced with "beneficial use'' was rejected, as the term "legitimate'' is derived directly from the Act. Another suggestion that Section 779.17 be qualified to provide for a waiver of the requirements when there is no legitimate use of water within the mine plan or adjacent area, was rejected as redundant. The Section only operates if legitimate uses exist or are likely to exist within the mine plan or adjacent area during the life of the proposed operations.

3. The proposed rule was edited to shorten it in the final rule. No substantive change was intended, however.

SECTION 779.18 Climatological data.

This Section describes specific climatological data which, at the request of the regulatory authority, must be submitted as part of the environmental resources information in each permit application. The authority for this Section is found in Sections 102, 201, 501(b), 503(a), 507(b)(12), and 508(a)(5), (9) and (10) of the Act. These data may be needed by the regulatory authority, in evaluating whether the applicant will be able to comply with the performance standards of Subchapter K.

1. A commenter suggested that the words "when requested by the regulatory authority'' be deleted. This was rejected because Section 507(b)(12) requires climatological data only "when requested by the regulatory authority.'' To demand such data in lieu of discretionary compliance would exceed the intent of the Act.

{15636}2. Commenters suggested that if climatological data is available in areas adjacent to the proposed mine permit area the regulatory authority should accept such data. It is not the intention of these regulations to levy unnecessary burdens upon the permit applicant. Should appropriate climatological data be available from Federal, State or other reliable sources, such data may be used.

3. A commenter suggested that the area for which climatological data is requested be changed from the "mine plan area'' to the "proposed permit area.'' The Office considered two alternatives. First, the Office considered whether to make changes recommended by the commenter, who stated such changes would parallel the legislative language in Sections 507(b)(9), (11) and (12) and 515(b)(10) of the Act. These Sections address permit requirements and environmental performance standards within the permit area and associated on or offsite or adjacent areas. The second option was to make no change in the proposed permanent language. Section 507(b)(12) of the Act requires that climatological factors peculiar to the locality of the land to be affected may be requested by the regulatory authority.

700 No change in the proposed language was made for several reasons. First, by definition, permit area is but a portion of the mine plan area and to request data relative to the permit area would require individual monitoring at each site; this being contrary to the previous decision that data available from adjacent areas may be utilized in the permit application. Second, the authorities cited in the first alternative refer primarily to hydrology requirements. Because of the nature of climatologic factors and their impact on the various performance regulations including hydrology and fugitive dust control, a broader area of influence must be considered.

4. Comments suggested that Section 779.18(c) be rewritten to comply with Section 507(b)(12) of the Act. The Office accepted the suggestion to insert the word "ranges'' following "seasonal temperature'' to comply with the intent of the Act. Data pertaining to and describing seasonal temperature ranges will provide adequate information in most situations to evaluate the climatological factors which have a bearing on the performance standards of Subchapter K.

5. Several commenters questioned the authority of the Office to expand the climatological data requirements to include "total suspended particulates'' when these data were not specifically requested by Section 507(b)(12) of the Act. The Office has decided to delete this mandatory aspect of the regulations. Section 779.18 of the regulations is intended to implement Section 507(b)(12) of the Act which provides that the regulatory authority may request the applicant to submit documentation on the average seasonal precipitation, the average direction and velocity of prevailing winds, and the seasonal temperature ranges. Information regarding total suspended particulate levels may be required under Section 780.15.

SECTION 779.19 Vegetation information.

Authority for this Section is Sections 102, 201, 501(b), 503, 504, 508(a)(2)(B) and (C), 508(a)(3), (4) and (5), 510(b)(2) and 515(b)(19) of the Act. This Section of the regulations will require that the applicant submit, if required by the regulatory authority, a map or aerial photograph delineating vegetative types in the proposed permit area, reference areas when applicable and certain adjacent areas. These requirements are consistent with Sections 816.111 816.117.

The regulatory authority may require maps or aerial photographs and narrative descriptions of the existing vegetation in the permit application for the following reasons: (i) To assist in evaluation of the natural vegetative capability of the site and to determine if the operations will be conducted in accordance with Sections 816.45 816.46, 816.97, 816.111 816.117, and 816.133 of Subchapter K; (ii) To characterize quantitatively the vegetation in the reference area and permit area, for establishing comparability of the permit area; (iii) To identify those species of vegetation that may contribute to important postmining land-use values of the permit area, by serving as seed sources for revegetating the land or as important habitats for fish and wildlife; (iv) To help in evaluating the present and potential productivity of the site, which must be described in the application under Sections 508 (a)(2) and (a)(4) and 515(b)(2) of the Act; and (v) To establish premining site conditions for wildlife and fish habitats. 700 Technical literature used in the formulation of this Section was as follows.

1. Auclair, A. N., and Cottam, Grant H., 1971. Dynamics of black cherry (prunes serotina Erhr.) in southern Wisconsin oak forest, Ecol. Monogr. 41(2):153 177.

2. Arkley, R. J., 1972. Factor analysis of ecosystem components for the barrow intensive site, 1970, in Biome Symposium, U.S. Tundra Biome, 221 pp.

3. Benton, A. H. and Werner, W. E., 1965. Manual of field biology and ecology, 4th Edition, Burgess Pub. Co., Minneapolis.

4. Billings, W. D. and Nooney, H. A., 1968. Ecology of arctic and alpine plants, Biol. Rev. 43:481 530.

5. Braun, E. L., 1950. Deciduous forest of eastern North America, Blakiston Co., Philadelphia. 6. Carter, V. A., and others, 1977. Wetland classification and mapping in western Tennessee, Proceedings of 2nd Annual William T. Pecora Memorial Syposium, Oct. 25 29, 1976, Sioux Falls, S. Dak., pp. 213 234.

7. Carter, Virginia, and Burbank, J. H., 1978. Wetland classification system for the Tennessee Valley Region, TVA Tech. Note, B 24 FFWD, Morris, Tn. (in press).

8. Cowardin, and others, 1977. Classification of wetland and deep water habitats of the United States. An operational draft. Fish and Wildlife Service, Dept. of Interior.

9. Curtis, J. T., 1959. The vegetation of Wisconsin, an ordination of plant communities, Univ. of Wisconsin Press, Madison, 657 pp.

10. Daubenmire, R. F., 1968. Plant communities, a textbook of plant synecology, Harper and Row, New York, 300 pp.

11. Daubenmire, R. F. and Daubenmire, J. B., 1968. Forest vegetation of eastern Washington and northern Idaho, Washington Agricultural Experiment Station Technical Bulletin 60, 104 pp.

12. Daubenmire, R. F., 1973. Comparison of approaches to the mapping of forest land for intensive management, Forestry Chronicle, 49:87 91.

13. Davis, J. A., 1977. An ecosystem classification of New York State for natural resources management, New York Fish and Game Journal, 24 No. 2, pp. 129 143.

14. Deitschman, G. H., 1973. Mapping of habitat types throughout a national forest, USDA Forest Service General Technical Report INT 11, 14 pp.

15. Goff, F. G., 1967. Methods used in field investigations of vegetation and soils, in Milfred, C. J. and others, Soil resources and forest ecology of Menominee County, Wisconsin, Univ. of Wisconsin Geological and Natural History Survey Bulletin 55, pp. 187 189.

16. Kuchler, A. W., 1964. Potential natural vegetation of the coterminous United States, (Map and Manual), New York, Am. Geographic Society, 116 pp.

17. Kuchler, A. W., 1967 Vegetation mapping, New York, Ronald Press Co., 472 pp.

18. Pfister, R. D., and others, 1977. Forest habitat types of Montana, USDA Forest Service General Technical Report No. INT 34, 174 pp.

19. Radford, A. E., 1977. Natural area and diversity classification system: A standardized scheme for basic inventory of species community and habitat diversity, Univ. of N. Carolina Student Stores, Chapel Hill, 70 pp.

20. Society of American Foresters, 1954. Forest cover types of North America, Report of Committee on Forest Types, Bethesda, 67 pp.

21. Wharton, C. H., 1978. Natural environment of Georgia, Georgia Dept. of Natural Resources, 227 pp. 22. Wielgolaski, F. E., 1972. Vegetation types and plant biomass in tundra, Arct. Alp. Research 4:289 306.

23. Zedler P. H., and Goff, F. G., 1973. Size-association analysis of forest successional trend in Wisconsin, Ecol. Monogr. 43:(1), pp. 77 94.

{15037}Vegetation maps, if required, should be of a scale of 1:24,000 or larger, and aerial photographs should be a comparable scale. Mapping units should be chosen to delineate homogeneous vegetative areas, but units should be field checked for accuracy before being submitted with the application.

Quantitative vegetation sampling, on the ground, is useful in establishing species frequency, density and productivity for vegetation map units (Kuchler, 1964, p. 375). Quantitative sampling techniques differ from rangeland to forest to tundra (Kuchler, 1967, chapters 29 and 30). The following references from the foregoing list are believed to be most useful in describing quantitative techniques: Numbers 1 5, 7, 9, 12, 14, 16 17, 19 24.

700 1. A commenter suggested that this Section be deleted on the grounds that the information requested would be provided under Section 779.22. The information to be provided under Section 779.22 pertains to the land uses and use capabilities of the proposed permit area. The information required by Section 779.19 is more detailed information relating to species diversity and ground cover and will be needed by the regulatory authority to determine the ability of the operator to revegetate the area. Information provided under Section 779.19 is likely to be helpful in completing the analysis required by Section 779.22 and should be used accordingly. Since the information of the two Sections is intended to be complementary and not duplicative, this Section has been retained.

2. Some commenters contended that landownership and control of the reference area would be a problem. In recognition of the difficulties that may result from requiring use of a reference area, the Office has developed the regulations to provide for the use of reference areas or, when approved by the regulatory authority, for the use of other technical guidance procedures to measure and determine success of revegetation. Thus the information required by this Section will relate directly to the method of measuring revegetation proposed by the operator and approved by the regulatory authority.

3. Numerous commenters suggested that this Section make reference to Section 816.116(d), which exempts operations of 40 acres or less from using reference areas. This Section and Section 816.116 have, as a result of this commenter's suggestion, been rewritten and reference areas are now one of the options that may be approved by the regulatory authority for use in determining success of revegetation authority for use in determining success of revegetation.

4. Several commenters argued that second- and third-growth hardwood forests, such as those in Appalachia, do not provide adequate ground cover to control erosion and that reference areas should therefore not be required. They further contended that these slow-growing species do not have growth rates to provide quick ground cover which will prevent erosion while the new seedlings are maturing, and that grasses or other quick-cover plants must be established to stabilize the area while plant succession occurs and the area is stabilized by the postmining vegetation. As discussed in previous paragraphs, the reference area requirements have been modified. Also, Sections 816.116 and 816.117 set forth minimum ground cover and seedling number requirements that are intended to minimize erosion.

5. A commenter suggested that aerial photos as well as maps have utility when delineating vegetative communities. It was contended that the use of aerial photos should be provided for in the regulations. In recognition of the utility of aerial photos, the regulations have been changed to provide for the use of a map or aerial photos when required by the regulatory authority.

6. Commenters suggested that a vegetative map should always be required. Since the most effective means of describing the vegetative cover and the adequacy of the information, whether by a map, aerial photo or narrative description, must be determined on a case-by-case basis, the Office decided that the regulatory authority needs the option to determine what descriptive materials are necessary to describe adequately the vegetation of the area to be disturbed.

7. Several commenters contended that this section should require information on vegetative cover, density and species diversity. The regulations require vegetative cover and productivity, as related to revegetation success, as well as the option of requiring a narrative description of the vegetative communities. Thus, the regulatory authority can require information relative to density and diversity. This information may not be essential to the permit review in some cases, so the Office has decided to leave the degree of detail to the discretion of the regulatory authority.

8. Commenters suggested that vegetation data on the adjacent area would not be necessary in the permit application because the land is to be restored to the premining condition, and consequently the adjacent area would not be affected. Since the regulatory authority will be required to make an informed decision on wildlife habitat as well as on any threatened and endangered species or their habitat, the requirement for vegetation data for adjacent areas is retained.

9. Commenters suggested that reference areas should be denuded and then revegetated using the same species called for in the mining plan. They contended that denuding would demonstrate the ability of the site to revegetate and would be a good standard to use in measuring success. Since denuding the area would not illustrate ground cover equal to or better than that which would occur on a nondisturbed area and because denuding would expose additional acreage to wind and water erosion, the suggestion has not been accepted.

700 SECTION 779.20 Fish and wildlife resources information.

Authority for this Section is found in Sections 102, 501(b), 503, 506, 507(b)(11), 508(a), 510(b) and 515(b) of the Act, the Endangered Species Act (ESA) and regulations of the U.S. Fish and Wildlife Service adopted under the ESA, and the Fish and Wildlife Coordination Act.

Under Section 779.20(a), each permit application must include a study of fish and wildlife and their habitats within the mine plan area and the adjacent areas where effects on such resources may reasonably be expected to occur. The area to be studied will, at a minimum, be the area to be covered by the mine plan, and may extend beyond the mine plan area to adjacent areas in which fish and wildlife and their habitats may be affected by the mining operation.

Under Section 779.20(b), permit applicants must contact the regulatory authority prior to initiating studies. The regulatory authority, in consultation with appropriate fish and wildlife agencies, will determine the scope of studies.

The regulatory authority will make the determinations of the areas of study and the required detail of study in accordance with the procedures in Section 779.20(c). This Section requires that all such determinations be based on the availability of three sources of information which include existing fish and wildlife resource publications, and written recommendations from State or Federal agencies having responsibilities for fish, wildlife, or habitats which may be affected by the mining operation.

The studies required by this Section will enable the regulatory authority to determine whether the applicant will be able to comply with Section 816.97 of the performance standards. All permit applicants must comply with this Section.

Numerous comments were received on this Section of the proposed regulations. Commenters' recommendations are discussed as alternatives in the context of the major issues identified, and final regulations. The following issues were raised by commenters.

{15038}1. Commenters addressed whether fish and wildlife studies are necessary or appropriate to implement provisions of the Act. Numerous commenters addressing this issue supported the need for studies of fish and wildlife. Other commenters recommended the following alternatives.

(a) Commenters suggested that studies of fish, wildlife, and their habitats are not appropriate, unless harm to fish and wildlife or their habitats has been identified by the regulatory authority. Commenters added that requirements of Section 515(b)(24) do not apply unless adverse effects have been identified, and recommended that permit application requirements of Section 779.20 apply only if requested by the regulatory authority. Other commenters recommended deletion of Section 779.20 from the regulations stating that such studies are not specifically required by the Act.

Commenters stated that mining will be conducted under permits as provided by the Act; therefore, studies are inappropriate outside the permit area. These commenters recommended that Section 779.20 be changed to confine the area of study to the permit area rather than the mine plan area and adjacent areas in which wildlife may be affected.

(b) The Office has determined that the regulatory authority must have the results of the study to determine the potential adverse effects of mining on fish and wildlife. The requirements of Section 780.16 are necessary to meet Section 515(b)(24) of the Act which requires the use of "best technology currently available'' to minimize the adverse effects of mining on fish, wildlife, and related environmental values and to enhance such resources where practicable. Further, the Endangered Species Act precludes actions adversely affecting critical habitats of threatened or endangered species. Compliance with these requirements cannot be evaluated without the information required in this Section of the regulations. The study may consist of the compilation of existing information, as well as site-specific information provided by the applicant. The regulatory authority will then determine, with appropriate guidance of wildlife agencies, what additional new information will be needed to understand fully the type and degree of adverse effects which may be anticipated. The study, therefore, is the basic means by which potential adverse effects are determined.

(c) The Office has determined that, although the application is for the permit area, effects on fish, wildlife, or related environmental values will not be confined necessarily to that area. This is especially true when fish or wildlife utilize the permit area or the mine plan area as part of their total habitats.

When a wildlife habitat component, such as a water, food, or cover is reduced or destroyed, the utility of the entire habitat is limited or destroyed depending on the availability of such components elsewhere in the habitat. For example, if the only available water source for a wildlife population occurs in a permit area and this water source is destroyed or impaired by mining, the entire habitat becomes unusable, because available water would be reduced or eliminated. (Odum, 1971, Fundamentals of Ecology, pp. 117 125; Moore and Mills, 1977, An environmental guide to western surface mining, Part II, pp. III 104 133.) Moreover, disturbances of the permit area may displace fish and wildlife into surrounding areas, thus increasing population densities in those areas. A given area of habitat will support only a given number of most kinds of animals. When animal populations are already high, this over-population resulting from displacement of wildlife from mine sites could cause increased density-dependent mortality through specific or inter-specific competition. Such density-dependent mortality is likely, especially in cases of highly territorial wildlife species. (Odum, 1971, pp. 195 202, 209 211.) In addition, offsite impacts such as water quality degradation, and erosion may affect fish population outside the permit area and mine plan area. (Moore and Mills, III 109 139.) The Act mandates that such effects on fish, wildlife, and their habitats be minimized regardless of where such effects may occur.

Such information may be necessary for the mine plan, as well as the permit area, and may be usable for subsequent permit applications for the operation, thus reducing study needs for future permits. For further discussion of this question in the context of the definitions of mine plan area, permit area, and adjacent area, see the preamble discussion for Section 701.5.

2. Commenters stated that reclaiming land to other uses would be incompatible with fish and wildlife use. Therefore, studies on land designated for uses other than fish and wildlife would be non-productive. According to commenters, the requirements of Section 779.20 should be restricted only to those operations where the postmining land use will be fish and wildlife.

The Office has concluded that Section 515(b)(24) of the Act requires the minimization of adverse effects from all surface coal mining and reclamation operations. This performance standard is mandated regardless of postmining land uses. The Act also requires that postmining land uses employ best technology to minimize adverse effects and enhance wildlife where practicable. Adverse effects of incompatible land uses may be expected to be greater than the uses which are compatible with wildlife. The recommendation made by commenters would relieve operators from minimization of adverse effects of incompatible land uses. However, the Office finds that this argument does have some merit and has attempted to accommodate it to some extent. Exemption from studies cannot be granted for the reasons already stated above. However, the performance standards make allow ances for the regulatory authority to exempt certain enhancement practices for wildlife where postmining land uses are incompatible with wildlife (Section 816.97(d)(11)).

3. Commenters addressed the degree of detail required for studies pursuant to Section 779.20. Commenters stated that fish and wildlife numbers and behavior are very difficult to study, and are not affected directly from mining, as much as they are indirectly through disturbance of their habitats. Therefore, requirements of Section 779.20 should emphasize studies of habitats, rather than populations of fish and wildlife.

Commenters also recommended that Section 779.20 include study of lesser forms of invertebrates as well as higher animals. The commenters state that such lesser forms are important to food chains and ecosystems balance.

700 The Office agrees that study of habitats is very important to minimization of effects resulting from habitat disturbance and has modified Section 780.16 of the reclamation plan rules, to include fish, wildlife and their habitats. Studies of populations may be required only for species of fish and wildlife identified pursuant to Section 780.16(c). Food chains, including lesser forms of life, are often very important parts of habitats. (Odum, 1971, pp. 369 375.) The addition of the term "habitat'' in Section 779.20(a) extends the requirements to all animals or habitat components important to the well-being of fish and wildlife, including lower forms important in food chains. Therefore, further change in the wording of Section 779.20 to emphasize study of lower forms is not necessary. The consultation process should identify and require studies of those lesser forms which are threatened or endangered, or are considered essential to support other higher forms of special interest species identified in Section 780.16(c).

4. Commenters stated that applicants cannot conduct fe Office has determined that there is no authority in the Act to waive requirements of Section 779.20 on the basis of land ownership or control. It is incumbent on the operator to comply with the minimum requirements of the Act and to do all things necessary to assure his ability to comply. This includes obtaining access needed to comply with requirements of Section 515(b) (24) of the Act.

{15039}5. Commenters recommended that Section 779.20 require that studies only include available published information. Commenters' rationale for this recommendation is that it is too costly to collect new information. However, no information concerning specific costs of studies was supplied by the commenters. Other commenters recommended that Section 779.20 provide for waiver of studies when existing information is adequate. Still other commenters recommended that Section 779.20 be revised to require studies to include data other than that available only from secondary sources. Specifically, new site-specific data should be required.

The Office agrees that a minimum amount of site-specific information almost invariably is required to determine the applicability of secondary information to specific sites. As stated in the preamble for Section 779.20 of the proposed regulations, the Office has changed the wording of Section 779.20 to indicate in Paragraph (c) that site-specific information is required in each permit application. However, the Office has concluded that the regulations as written provide adequate discretion for the regulatory authority to determine levels of detail for studies based on the adequacy of existing information.

Additionally, although site-specific information is required by Section 779.20(c), the requirements concerning the area and detail of study should ensure that most applicable information, for the entire area in which fish and wildlife and their habitats may be affected, will be collected and supplied with the initial permit application. This will have the effect of reducing needs for studies for subsequent permit applications within a given mine plan area.

6. Commenters questioned the allocation of authority for determining the level of detail required in fish and wildlife studies. Eight different recommendations were made by the commenters.

Commenters recommended that, since State wildlife management agencies have the necessary expertise to determine "best technology currently available'', the scope of the study conducted pursuant to Section 779.20 should be determined by these agencies.

Other commenters recommended that because State wildlife agencies often do not have authority which extends to species not on the respective State game lists, and since State conservation agencies have greater capability in the area of all wildlife species, then the level of detail should be determined by the State conservation or resource agency.

Other commenters stated that State agencies do not have responsibility or authority over management or protection of migratory species, endangered species, or other Federally-protected species of fish and wildlife. Therefore, State wildlife agencies and Federal wildlife agencies should determine the scope of studies for species within their respective areas of responsibility.

Commenters recommended that State wildlife agencies and State and Federal land management agencies should determine the level of detail for studies, since both have wildlife management or habitat management responsibilities, authorities, and expertise.

Commenters suggested strengthening Section 779.20 by providing specific minimum study requirements, sufficient to remove all discretion of the regulatory authority. These commenters stated that leaving discretion to regulatory authorities without minimum standards provided in the regulation will not ensure that "best technology currently available'' will be used as required in the Act.

Commenters recommended that the level of detail be determined solely by the regulatory authority. Commenters recommended that levels of detail be determined on a case-by-case basis, because of varying species, topography, climate, and other factors would create such diverse circumstances that one set of study guidelines could not be made to apply. Commenters recommended that Section 779.20 be modified to reduce the level of detail required in wildlife studies.

The final regulations provide, in Section 779.20(c), that State wildlife management agencies will be consulted in the process of determining levels of detail of studies, and that Federal wildlife agencies be consulted with respect to their specific wildlife protection or management role. Further, Section 779.20 provides for consultation with State and Federal land management or conservation agencies when habitats administered by such agencies may be affected by mining operations.

The Office agrees that State wildlife agencies have expertise to aid the regulatory authority in determining the scope of studies. However, in some States, the State wildlife agency does not have authority to manage nongame fish or wildlife species. If such authority exists, it may rest with other agencies within a State such as a State conservation agency. Therefore, the expertise and responsibilities of other agencies which may have broad authority for nongame wildlife species must also be considered in the determination of levels of details for wildlife studies.

Further, many Federal or State agencies manage lands which contain important wildlife habitats which may be affected by mining. Such agencies include State and Federal forest management agencies, park management agencies, and State or Federal multiple-use land management agencies. Close coordination will be required to ensure that best technology is utilized in protection, enhancement, or restoration of such habitats.

The final regulation allows studies to be designed on a case-by-case basis for each mine area. The discretion of the regulatory authority is not, however, absolute, in that detail of studies is required to be in accordance with written guidance from agencies having responsibilities and expertise in fish and wildlife matters. It is the intent of the regulations that guidance obtained from agencies consulted be utilized in the determination of the area to be studied and the detail with which studies are conducted. This procedure should provide needed flexibility to use best technology to protect fish and wildlife, and ensure that information provided by the consulted wildlife experts may be utilized to minimize adverse impacts as required in Section 515(b)(24) of the Act.

7. Comments were received which addressed whether certain mining operations or activities should be exempt from Section 779.20. Some commenters recommended that small mine operations be exempt from the requirements of Section 779.20 because of high cost. No cost estimates were given, however.

Other commenters recommended that small operations should be exempt on the basis of area disturbed, rather than tons of coal mined, since surface acres of disturbance more directly relates to effects of mining on fish and wildlife. Other commenters recommended that all mining operations in mining-intensive areas or areas previously disturbed by mining be exempt from the requirements of Section 779.20.

Other commenters recommended that the Office provide that no mining operation, regardless of size, be exempt from requirements of Section 779.20. These comments stated that many small operations have significant effects on environmental values, and that exemption of such operations would be contrary to the Act.

{15040}The Office has decided that all operations must comply with this Section of the regulations. Many mining operations may be classified as "small''. Large numbers of such operations disturb significant cumulative areas of land. Further, the cost of fish and wildlife studies necessary for permit applications is estimated to range from less than one additional cent to two cents per ton of coal mined, for any alternative for which costs were analyzed, according to the Office's Regulatory Analysis. Based upon this analysis and the requirements of the Act, the Office has decided that all operations, regardless of size, must comply with Section 779.20.

The Office believes that where wildlife use has changed as a result of intensive mining or previous disturbance of habitat, practicability for enhancement, pursuant to Section 515(b)(24) may be very high. Restoration in areas which have been significantly disturbed by past mining is an important aspect of the Act as evidenced in Title IV. Exemption of areas from the requirements of Section 779.20, solely on the basis that intensive mining has occurred in the past or a given tract of land was previously disturbed by mining, would not be in compliance with requirements of Section 515(b)(24), and no authority can be found in the Act to provide such exemptions. Therefore, the final regulations provide no exemptions from the requirement to perform studies of fish and wildlife and their habitats.

SECTION 779.21 Soil resources information.

Authority for this Section is found sections 102, 201(c), 501(b), 503(a), 504, 507(b)(9) and (11), 508(a), 510(b), and 515(b) of the Act. This Section requires that permit applications contain descriptions of the soil resources of the mine plan area, through a soil survey, to enable the regulatory authority to make determinations under Sections 515(b)(2), (4), (5) and (6) of the Act. Also, the applicant must submit results of analysis, trials and tests required by the regulatory authority, where the applicant is proposing to use selected overburden materials instead of, or as a supplement to, topsoil in the proposed reclamation process. This information is necessary to enable the regulatory authority to determine if the applicant can comply with the performance standards of Sections 816.25, 816.111 816.117 and 816.133 of Subchapter K.

The requirements of Sections 779.21 and 779.26 of the proposed regulations were combined into Section 779.21, and Section 779.26 was deleted. The two Sections related specifically to the topsoil-removal requirements of Section 816.22 and the revegetation requirements of Sections 816.111 816.117. By combining the Sections, OSM intends to clarify that relationship. The requirements of the proposed Section 779.21 are now in Section 779.21(b). Also, additional changes in this section resulted from the Office's consideration of changes proposed by commenters.

Several commenters argued that a soil map is only a visual depiction of a soil survey. Some stated that cooperative surveys and associated maps should provide adequate soil-resource information, while others contended that requiring a soil map exceeds the authority of the Act except when prime farmland is present. Other comments suggested that soil information requirements should be limited to the information in the applicant's possession or in published reports.

The Office concurs that a soil map does not contain adequate narrative on which the regulatory authority can base a decision, and that a soil survey composed of a map and supporting soil-resource descriptions contain adequate information upon which capability and potential productivity can be reliably predicted.

700 Since commenters were not able to suggest a way by which the requirements for a discussion of the characteristics of a mine plan area, required by Section 508(a)(3) of the Act, could be satisfied by an applicant if soil-survey information was not provided, the Office has determined that the applicant should provide adequate soil-survey information, to include soil identifications, soil descriptions and present and potential productivity of existing soils, on which the regulatory authority can make a determination of the adequacy of the reclamation plan. Further, the comments suggesting that soil-information requirements be limited to information in the applicant's possession or in published reports have been rejected because this information can be obtained by qualified personnel using standard soil-survey procedures and is to be used as the basis for determining productivity. As explained in the preamble discussion of the definition for "soil survey'' in Section 701.5, it is intended that soils information be obtained in accordance with the procedures of the National Cooperative Soil Survey.

Commenters suggested the regulations require that the soil map be prepared by a qualified professional soil scientist. The commenters contended that soil maps will not be meaningful unless prepared by competent people. The Office feels the current requirement that map units be prepared according to the standards of the National Cooperative Soil Survey is adequate to assure conformity to established standards so that maps can be readily interpreted and are reliable.

SECTION 779.22 Land use information.

Statutory authority for this section is found in Sections 102, 201(c), 501(b), 507(b) (14), 508(a) (2), through (5), (8), (10), (13) and (14), 510(b) (2) and (10) of the Act. The following technical literature was used in developing this section: 1. Toth, R., Criteria in Land Planning and Design, Landscape Architecture, 62(1), 1971.

2. Moore, G.T., Emerging Methods in Environmental Design and Planning. MIT Press, Cambridge, Mass. 1970.

3. Johnson, A.H., et al., Landscape Analysis for Ecologically Sound Land Use Planning. Dept. of Landscape Architecture and Regional Planning. University of Pa., Phil., Pa. 1978.

4. Thurow, C., et al. Performance Controls for Sensitive Lands. American Society of Planning Officials Planning Advisory Service. Reports No. 307, 308. Am. Soc. of Planning Officials, Chicago, Ill. 1975.

5. McHarg, I.L. Design With Nature, Natural History Press. Garden City, N.Y. 1969.

6. McHarg, I.L., Juneja, Narendra, Meyers, C.R., Jr., and Sutphin, D.F., 1968, The Least Social Cost Corridor for Richmond Parkway. (Prepared by Wallace McHarg Roberts and Todd, Philadelphia, Pa.) New York City Department of Parks. The information required under this section is necessary to enable the regulatory authority to evaluate the applicant's plan to restore the affected area to the condition required by Section 816.133. The most cost-effective and least environmentally damaging land uses can be identified and developed to a large degree by identifying the area's characteristic properties and capabilities. (McHarg, 1969 p. 32; 55 65, 103 115; 127 151; Thurow 1975 p. 3 and McHarg et al., 1968, p. 2 4.) Section 779.22 has been renumbered and relettered for greater clarity. In addition, the last sentence of proposed Section 779.22(b), description of uses preceding mining, has been moved to Section 779.22(b)(5) of these regulations. Other editorial, non-substantive changes have been made by the Office since this section was proposed.

As proposed, Section 779.22 required the listed information for lands within the mine plan area but 779.22(b) did not specify a geographic area. Section 779.22(a) now requires information only with respect to the permit area. This change was made to reduce the burden on the permit applicant and because the detailed data and analysis required by 779.22(a) is most necessary for the area to be mined within the permit term which is susceptible to change as a direct result of mining. Data on the area outside the permit area could change significantly during the term of the permit without regard to mining activities and is more appropriately gathering as new areas are permitted. Section 779.22(b) calls for information on previous mining activities within the proposed mine plan area. A wider base information is necessary under this section in order to determine the cumulative impacts of the mining operations. This information is unlikely to change significantly during the permit term and should be used by the regulatory authority and the operator to assure that the new mining is conducted in a manner which, where possible, mitigates problems that were caused by previous mining activities. Section 779.22(c) also requires information for an area larger than the permit area. Information on existing land uses and classifications in the proposed mine plan area and addjacent area is necessary to make the findings required under Section 816.133 that the planned post mining land use is compatible with surrounding land uses, policies and plans. The information is more general than that required under Section 779.22(a) and its collection should not cause unreasonable burdens on the applicant.

{15041}A few commenters objected to a number of provisions in Part 779, including Section 779.22, stating that such voluminous data requirements are expensive and inflationary. The Regulatory Analysis has evaluated the costs of regulations within Part 779 which require data similar to that required by Section 779.22 (Sections 779.20, 780.16, 783.20 and 784.21, permit application requirements for fish and wildlife resources). The Regulatory Analysis evaluated a group of alternatives for these sections of the regulations ranging from a detailed survey of all species to less detailed inventories and/or plans. The incremental cost for these alternatives did not in any case exceed one cent per ton of coal. The land use information requirements of Section 779.22 require less detail than the most costly fish and wildlife requirement analyzed in Regulatory Analysis. Thus, it can be assumed that the incremental cost of Section 779.22 will not be significant, even allowing for uncertainty and error. 700 Section 779.22(a)(1) requires filing a map and supporting narrative describing the uses of the land existing at the time the application is filed. All significant uses within the proposed permit area should be described regardless of how small a geographic area the use or activity occupies. To the extent possible, the narrative should describe uses using the categories defined in Section 701.5. The historic use of the land also must be described if the pre-mining land use was changed within 5 years preceding the beginning of the proposed mining operation. Some commenters stated that there is no statutory authority for requiring a map. Section 779.22(a)(1) is specifically required by Section 508(a)(2)(a) of the Act, and such information is traditionally documented on maps. The Office believes such a map is a necessary and useful tool in comparing the pre-mining and proposed post-mining uses and will be required for making decisions under these regulations. Thus, the map requirement has been retained.

Some commenters suggested that a period of time should be added in Section 779.22(a)(1) to indicate how far back the historical use description must extend. Setting a specific time period could result in data not needed by the regulatory authority in some cases while in other cases failing to provide critical information. The Office believes that the regulatory authority should determine the appropriate period for information on historical use based on the nature of changes that have occurred and local conditions and trends. Thus, no specific time has been added to this subsection.

A few commenters suggested that the historic use of the land should be described where the pre-mining use was changed within the 20 years preceding the beginning of the proposed operation. They gave no basis for extension of this time period an additional 15 years. The Office believes that the additional time may be unnecessary in many cases for purposes of comparing uses, and could be burdensome to applicants. Therefore, this comment was not accepted and no change was made.

Section 779.22(a)(2) requires that the application include a narrative of the capability of the land to support a number of uses and a narrative of the productivity of the land within the proposed permit area. This information together with the environmental information required under this Part and the land use information required under Section 779.22(a)(1) should provide the foundation for a comprehensive analysis of the environmental, engineering and economic factors which must be molded into the complete reclamation plan.

Several comments were received on Section 779.22(a)(2)(ii). Some commenters suggested that this section reference the Soil Conservation Service of the Department of Agriculture as the source for productivity studies and yield data. Allowing the use of studies from public agencies should add flexibility and lower the costs of obtaining such data while maintaining reliability for use in decision-making. The Office has determined that a broader base of information is desirable. As a result, this section has been revised to reflect that the sources for such information may be the Soil Conservation Service, State agricultural academic institutions, or State natural resource or agricultural agencies.

Some commenters suggested that "average yield'' should be defined. The Office considered defining this term or setting forth guidelines for determining average yield, but believes a definition is unnecessary. Average yield has a common meaning in the field of productivity studies and the Office intends that meaning to be applicable under this section. Section 779.22(b) requires information on the mine plan area if it has been previously mined. The required information, if available, includes: type of mining method used, coal seams or other mineral strata mined, extent of coal or other materials removed, approximate dates of past mining, and land uses preceding mining. A few commenters stated that it may be difficult to ascertain the dates of past mining to any degree of accuracy. The Office recognizes that obtaining exact data of past mining may be difficult. Therefore, the Office had determined that only approximate dates need be provided. This change is reflected in Section 779.22(b)(5).

Some commenters suggested that determination of pre-mining uses may be difficult, particularly in cases where mining was completed many years prior to submission of an application. Some commenters suggested that such information be required "to the extent possible.'' The Office recognizes that information on pre-mining land use may not always be readily available but believes that reasonably accurate estimates of pre-mining land use can be obtained from local planning and zoning data and the records of county offices. The Office has determined that no additional language is necessary since this subsection already provides that information be submitted "if available.'' Some commenters suggested a soil map requirement be added to Section 779.22 since soil maps would be useful in determining land productivity. The Office does not agree, however, because soil maps customarily describe land in terms of chemical and physical properties rather than in terms of uses of the land. Accordingly, this comment was rejected and no change was made.

Section 779.22(c) requires that the application contain a description of the existing land uses and land use classification (under local law) of the mine plan and adjacent areas. This information is necessary to enable the regulatory authority to make decisions on proposed alternative land uses, particularly the finding of compatability with existing land use policies and plans. The reader is referred to the Preamble discussion for Section 783.23 (Land Use Information for underground mining applications) which discusses the comments which led to the addition of this subsection.

{15042}Many commenters suggested that a number of revisions be made and language added to provide significantly greater protection for what are commonly termed "cultural resources.'' The principal suggested revisions and additions can be generally described as follows: (a) in Part 776 (General requirements for coal exploration), add a requirement that the map showing areas to be substantially disturbed indicate existing archeological features; (b) in Parts 779 (Surface mining permit applications_minimum requirement for information on environmental resources) and Part 783 (Underground mining permit applications_minimum requirement for information on environmental resources), add a new Section entitled "Cultural Resources Information.'' This Section would require a description of all known archeological, historical and cultural sites and their significance. Furthermore, this Section would require identification and assessment of such characteristics of the site under regulations of the National Park Service (36 CFR Part 60); (c) add a new Section entitled "Cultural Resources Plan'' in Part 780 (Surface mining permit application_minimum requirements for reclamation and operation plan) and in the companion underground mining regulations, Part 784; (d) and insert additional language in the performance standards for surface and underground mining relating to protection of fish, wildlife, and related environmental values (Sections 816.97 and 817.97). This language would require that operators report archeological, historic or cultural materials discovered during mining to appropriate State officials. The majority of these comments cited section 515(b)(24) of the Act as possible authority for requiring the suggested degree of protection for cultural resources. Section 515(b)(24) provides that all surface coal mining and reclamation operations shall, "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.'' The office acknowledges that this general statutory language could be said to authorize imposition of the suggested additional regulatory requirements. However, the legislative history which could support this reading of the statute is ambiguous.

Numerous commenters also suggested that additions and revisions similar to those discussed in the preceding paragraph vis protection for cultural resources be added to the regulations to provide a significantly greater degree of protection for visual and esthetic resources. The above discussion is equally applicable to this issue.

Because many of these comments suggested essentially new regulatory material which neither the Office nor the public have had an opportunity to adequately consider, they are not being adopted at this time.

SECTION 779.23 Maps, plans and cross-sections, preparation.

Section 779.23(a) of the proposed regulations was transferred to Section 779.25. Section 779.23(b) of the proposed regulations was transferred to Section 771.23(e).

700 SECTION 779.24 Maps: General requirements.

This section sets forth general requirements for maps which must be included in the permit application. The 12 subsections of Section 779.24 are summarized below and the statutory authority for each subsection is noted. These informational requirements are intended to provide the regulatory authority with easily accessible information on the potential impact of the mining operation on the resources and facilities in the area.

As proposed, Section 779.24 was prefaced with a statement that the maps required "be prepared in accordance with Section 779.23 . . .'' Proposed Section 779.23(a) would have required that all maps, plans and cross sections included in a permit application "be prepared by or under the direction of, and certified by a qualified registered professional engineer or professional geologist, with assistance from experts in related fields such as land surveying and landscape architecture.'' (43 Fed. Reg. 41840). The Office received many comments on proposed Section 779.23(a) and its companion section in the underground mining permit application requirements, Section 783.23(a).

Those comments which suggested that land surveyors, landscape architects, and soil scientists be given a larger role in the preparation of maps, plans and cross sections are discussed below. The reader is also referred to Sections 779.25 and 783.25 (Cross sections, maps and plans) and Sections 780.14 and 784.23 (Operation Plan: Maps and Plans) of the final regulations where the limitations on who must prepare and certify certain listed maps, plans and cross sections are contained. The preambles to those sections discuss and dispose of additional comments which are not discussed here.

Numerous commenters objected to proposed Section 779.23(a) as precluding land surveyors and other professionals from independently preparing the numerous maps, plans and cross sections which must be included in a permit application. Several commenters stated that, in many states, land surveyors have historically prepared many of the maps and plans required for mining permit applications. Some commenters stated that proposed Section 779.23(a) appeared to be in conflict with some existing state laws regarding, for example, preparation of boundary maps. Commenters suggested that the regulations be revised to permit land surveyors and other professionals to prepare permit application materials. Alternatively, some commenters suggested that the regulations allow the regulatory authority to set minimum qualifications of those who prepare maps, plans and cross sections.

Sections 507(b)(14), 515(b)(10)(B)(ii), 515(b)(13) and (f), 515(b)(22)(H), 515(c)(3)(B)(vii), 515(c)(4)(E) (incorporating 515(b)(22)(H) by reference), 515(d)(1), (incorporating 515(b)(22)(H) by reference), 515(e)(3)(B), 515(e)(4) (incorporating 515(b)(22)(H) by reference), and Section 515(b)(5) and (f) of the Act expressly require that certain maps, plans and cross sections be developed by or under the direction of professional engineers and in some cases geologists. These provisions of the Act are clear and unambiguous and, accordingly, the Office may not waive their requirements. Therefore, as to the types of maps, plans and cross sections listed in the above Sections of the Act, the Office has followed the exact language in the Act in adopting the regulations. (See, for example, Sections 779.25(e), 780.14(c), 783.25(e), and 784.11(c) of the regulations). The Office has no general authority to grant variances from the provisions of the Act. ( In Re Surface Mining Litigation, 452 F. Supp. 327, 338, (D. D.C. 1978)). With respect to those provisions of the regulations which require technical materials which the Act does not specifically require that an engineer or geologist be responsible for preparing, the Office has determined, based on the public comments received, that land surveyors and other qualified professionals may prepare those types of technical materials. Thus, these professionals may prepare any of the technical materials listed in Sections 779.24(a) through (k). Accordingly, the introductory sentence which referred to proposed Section 779.23(a) has been eliminated. The regulatory authority is free to set minimum requirements for the qualifications of those who will prepare the materials required by Section 779.24, but the Office did not make such a requirement mandatory in the regulations.

{15043}Section 779.24(a) requires a map showing the boundaries of lands and the names of the present owners of record (surface and subsurface) included in or contiguous to the permit area. Authority is Section 507(b)(1), (2) and (13) of the Act. As originally proposed, this Section would have required this information with respect to the mine plan and adjacent area. The change was made because the information is only needed for the area to be mined within the term of the permit applied for and for areas adjacent to the permit area which will be most directly affected by mining operations. Some commenters suggested that "subsurface'' areas be deleted and that Section 779.24(a) should be restricted to coal to be mined rather than include map information on all minerals. These suggested changes were not made. As presently drafted, Section 779.24(a) is in accordance with the express requirements of the Act.

700 Section 779.24(b) requires identification of the boundaries of land within the proposed permit area upon which the applicant has the legal right to enter and begin mining activities. Statutory authority for this is Section 507(b)(9) of the Act. As proposed, this Section would have required this information with respect to the mine plan area. The change to permit area has been made because the applicant may not and need not have the legal right to mine the entire mine plan area at the time of the initial permit application. A map showing the areas that the applicant can legally mine is needed to determine the maximum extent of the proposed operation.

Section 779.24(c) requires identification of all areas proposed to be affected over the estimated life of the proposed activities together with a description of the size, sequence and timing of mining of subareas for which it is anticipated that additional permits will be sought. Authority for this Section is found in Sections 507(b)(8) and 508(a)(1) of the Act. The total impact of the operation on the environment cannot be assessed without knowing the total area to be mined, when and where it is to be done, and any additional areas expected to be mined. Some commenters suggested that Section 779.24(c) be deleted in its entirety. These comments were rejected because this information is clearly required by the Act and it is appropriate to depict such information on maps.

Section 779.24(d) requires identification of buildings on and within 1,000 feet of the proposed permit area together with identification of the current use of such buildings. Authority for this Section is Sections 507(b)(13) and 522(e) of the Act. As proposed, this Section would have required such information for all buildings on and within 1,000 feet of the proposed mine plan area. The geographical scope was narrowed to cover only those buildings on or near land to be mined during the term of the proposed permit. The existence and use of buildings in the larger mine plan area will be made known as mining progresses so that information on those outsside the immediate permit area would have limited value.

Section 779.24(e) requires identification of surface and subsurface man made features within or passing through or over the proposed permit area. Authority for this is Sections 507(b)(13), 508(a)(2) and 515(b)(2) of the Act. The potential for disruption of pipelines, utilities and other facilities must be established to prevent adverse effects in the surrounding community and to assess the need for relocation or rebuilding of these facilities. Several commenters suggested that this section be revised to require identification of only known facilities. In response to these comments, the Office has revised this section to state that man-made features be identified. All features constructed by humans are presumed known. As originally proposed, this section would have required information on facilities within or passing through or over the mine plan area. This was changed to permit area because the type of information required here is not related to hydrologic balance, fish and wildlife, blasting or other areas where a broader scope of information is required to assess long-term and far reaching effects. Section 779.24(f) requires identification and location on maps of the boundaries for reference areas for determining the success of revegetation. Statutory authority for this section is Sections 507(b)(13), 508(a)(2) and 515(b)(9) of the Act. Areas selected as the standard for reference for evaluation of revegetation success must be identified so that their suitability and representativeness can be assessed. Some commenters suggested that Section 779.24(f) should reflect that reference areas may not be required if the applicant conforms to the requirements of Section 816.116. If the applicant elects to use reclamation standards in Section 816.116 rather than reference area standards, no reference areas will be established and their mapping will be unnecessary. Therefore, no change in the language of this section is necessary.

Section 779.24(g) requires identifying the location of water supply intakes for current users of surface water flowing into, out of, and within a hydrologic area defined by the regulatory authority, and identifying those surface waters which will receive discharges from the affected areas in the proposed mine plan area. Authority for this section is Sections 507(b)(11) and (13), 508(a)(13) and 515(b)(10) of the Act. Surface water flow and users in the affected area need to be established to assess and mitigate the effects of mining on the hydrologic balance in that area. Several commenters objected to Section 779.24(g). Some suggested that it be deleted entirely because of the difficulty of obtaining the information. Other commenters suggested that a distance limitation be added. Some commenters stated that "water intake'' was ambiguous. The Office intends water intake to mean a water supply intake; the necessary clarifying language has been made in Section 779.24(g). Establishment of boundaries for data collection is related to the hydrologic and topographic characteristics of each area and must be done on a case by case basis. Therefore, responsibility for delineating a "hydrologic area'' has been given to the regulatory authority in Section 779.24(g), which has been revised to reflect this change. This "hydrologic area'' is that referred to more specifically in Sections 779.13 and 779.16 of the regulations.

700 Section 779.24(h) requires identification of all public roads located in or within 100 feet of the proposed permit area. Authority for this section is Sections 507(b)(13) and 522(e)(4) of the Act. This information is necessary to prevent or minimize disruption of traffic flows, hazards to travelers, and provide the restoration of traffic flow and access after mining. In response to several comments, this section was changed from highway and roads to public roads to be more in accord with the Act.

Section 779.24(i) requires identifying the boundaries of all public parks and locations of any cultural or historic resources listed on or eligible for listing in the National Register of Historic Places and known archeological sites within the mine plan and adjacent areas. Authority for this section is found in Sections 507(b)(13), (508)(a)(10) and (14), and 522(e) of the Act. The area affected may include sites of recreation, scientific or social significance that must be evaluated to determine how they should be protected, whether mining may occur, how the mining should proceed around the site, and reclamation procedures needed to maintain the values associated with these sites. Information of this nature for the mine plan and adjacent area is necessary since mining operations may have adverse effects on parks, cultural and historical resources and archeological sites located outside the confines of the proposed permit area. {15044}As originally proposed, this Section would have required identification of all existing parks, archeological, paleontological, cultural, historical and unique geological features and known features in adjacent areas. Several commenters suggested that the term "significant'' be added to modify "archeological, paleontological, cultural, historical, and unique'' so that there would be a test for whether a feature should be included on a map. Several commenters suggested that only "known'' and/or "significant'' features be required to be identified. Other commenters suggested revising this section to require only the use of existing literature to identify and locate the features to be shown. The Office made the following changes in response to these comments: The determination of "significance'' can be made by reference to the National Register of Historic Places since resources on or eligible for inclusion on the National Register have already been determined to be significant (See 36 CFR Part 60). As noted in the preamble to Section 761.12, a resource is eligible for inclusion if the Federal Register notice announcing its eligibility has been published by the Department of the Interior. The Office has revised Section 779.24(i) to require identification of "known'' archeological sites as requested by the commenters. (Addition of the word "known'' elsewhere in this section is unnecessary since resources on or eligible for inclusion on the National Register will already be known).

Section 779.24(i) has been revised to delete naturally occurring (non-man-made) paleontological and geological features. The Office believes that map identification of all such features (e.g., fossils) would be an unnecessarily burdensome task for the majority of operations in the East.

The Office has not added a requirement on the use of existing literature. The applicant's obligation to use literature and other sources is specified in Section 779.12(b) which requires that the narrative description of cultural and historic resources and known archeological features be based on "all available information including, but not limited to, data of State and local archeological, historical, and cultural preservation agencies.'' Section 779.24(j) requires identification of each public or private cemetery or Indian burial ground located in or within 100 feet of the proposed permit area. Authority for this section is found in Section 507(b)(13), 508(a)(10) and (14), 515(b)(23) and 522(e)(5) of the Act. Indian burial grounds were added here by the Office as a result of public comments. Cemeteries and burial grounds must be identified in order to avoid them. This information is required with respect to the permit area since mining (which will be performed under a permit) may not occur within 100 feet of a cemetery.

Section 779.24(k) requires identification of areas that are established or are being considered for inclusion in the National System of Trails and the Wild and Scenic River System. Authority for this is Sections 507(b)(13) and 522(e) of the Act. These areas must be located to avoid irreparable damage to these resources. Information of this type for the mine plan and adjacent areas is necessary since mining operations may have adverse effects on these resources outside the permit area.

Section 779.24(1) allows the regulatory authority to require other relevant information. Authority for this Section 507(b)(13) and 508(a)(14) of the Act.

A few commenters suggested that specific requirements for identifying community facilities be included in Section 779.24. The Office believes that Section 779.24 as drafted will result in identification of such facilities. (See 779.24(d), (e), (g), (h), (i) and (j).) Therefore, no changes were made in response to this comment.

Some commenters suggested that Section 779.24 be revised to include land use and zoning maps and description of planning studies for the permit and surrounding areas. This information will be submitted under other sections of the regulations. (See, for example, Section 779.22(c) and 780.23.) Thus, no additional requirements were added to this map section.

700 SECTION 779.25 Cross sections, maps and plans.

Authority for this Section is Sections 102, 201, 501(b), 503, 504, 507(b)(11), (13), (14), and (17), 508(a) and 515(b) of the Act. Information required under this Section will provide the regulatory authority with complete information about the proposed mining site so that the applicant's ability to comply with the performance standards of these regulations can be fully evaluated.

As proposed, Section 779.25 was pref aced with a statement that the materials required under Section 779.25 "be prepared in accordance with CFR 779.23 . . .'' Proposed Section 779.23(a) would have required that all maps, plans and cross sections required under Section 779.25 "be prepared by or under the direction of, and certified by a qualified registered professional engineer or professional geologist, with assistance from experts in related fields such as land surveying and landscape architecture.'' (43 Fed. Reg. 41840). Many comments were received on the issue of who may prepare and certify maps. (See the preamble to Section 779.24 where these comments are discussed and resolved.) As explained in that preamble, several sections of the Act expressly require that certain maps, plans and cross sections be developed by or the direction of professional engineers and in some cases geologists. As to those statutory requirements, the Office has closely followed the language of the Act in adopting these regulations. Accordingly, the reference in Section 779.25 to Section 779.23 has been deleted (as has Section 779.23 itself), and a new section has been added (Section 779.25(1)) which states that all plans and cross sections required under Section 779.25 must be prepared by or under the direction of and certified by a qualified registered professional engineer or professional geologist, with assistance from experts in related fields such as land surveying and landscape architecture. Section 779.25(1) is based on Section 507(b)(14) of the Act.

Other organizational and editorial, non-substantive changes have been made in Section 779.25. Two mapping requirements which appeared in the introduction to Section 779.25 have been moved to Sections 779.25(a) and (b), and the remaining subsections have been renumbered.

A few commenters stated that the title of this section as proposed ("Cross-sections maps and plans'') was incorrect. The title now correctly reads "Cross sections, maps, and plans''.

Several commenters questioned the need for annual updating of cross-sections, maps, and plans. The commenters argued that updating of these materials on an annual basis is costly, time consuming and unnecessary. The Office acknowledges these potential difficulties associated with resubmittal of updated revisions of these document. Accordingly, the Office has deleted the requirement for annual revision; updating is now required at the discretion of the regulatory authority (Section 779.25(1)).

Several commenters objected to the scope of information required in Section 779.25, stating that information should only be required for the permit area, or for the permit and adjacent areas. These comments are discussed below in connection with the descriptions of the individual subsections of 779.25 which have areal requirements.

Section 779.25(a) requires identification of elevations and locations of test borings and core samples. Section 779.25(b) requires information on the elevation and location of monitoring facilities which are used to gather data in preparation for the permit application. Some commenters suggested that "monitoring stations'' was too specific and should be replaced with "monitoring plan or program''. The suggested change was not made since this section requires that monitoring stations be depicted on maps rather than merely described. Descriptions of monitoring plans and programs are required elsewhere in the regulations. (See, for example, Sections 780.15 and 780.16).

{15045}Section 779.25(c) requires detailed information on the coal seam, and on the stratum of overburden and stratum immediately below the lowest coal seam to be mined. This information is needed to establish the amount of material to be removed, the hydrologic effects of removing the seam, and the nature of the final pit floor. Some commenters suggested that information on nature, depth and thickness of coal seams be removed from public review as confidential information. The Office did not revise Section 779.25(c) as suggested. Confidentiality of permit application information is governed by Section 786.15 of these regulations. Other commenters suggested that Section 779.25(c) be revised to require additional information on the hydrology of the area immediately below the lowest coal seam to be mined. The Office made no changes because this information is already required under Sections 779.25(f) and 779.14 (narrative description) of the regulations.

Section 779.25(d) requires identification of all coal crop lines and the strike and dip of the coal to be mined within the proposed mine plan area. This information is necessary to estimate the probable extent of the operation and to assess the proposed mining method. As suggested by comments, the term "mineral crop lines'' was revised to read "coal crop lines''. As proposed this information would have been required for the proposed mine plan and adjacent areas. Some commenters stated that this information should be required for the permit area only. These comments were rejected. This information is needed for the mine plan area in order to assess the potential cumulative impacts of the proposed mining operations. However, "adjacent area'' was deleted since the mining will only take place within the mine plan area.

Section 779.25(e) requires identification of the location and extent of known workings of active, inactive or abandoned underground mines. Maps locating underground workings will help to provide a basis for assessing the potential physical and environmental hazards of mining in their vicinity. Some commenters objected to this requirement on the basis that this information cannot always be determined. The Office believes no change is necessary since Section 779.25(e) is limited to "known'' workings. The scope of the information required under 779.25(e) was not changed to permit area as suggested by comments. This broad information is necessary because water drainage from underground mines can be caused by surface mining, (see page BIII 58 of the Final Environmental Impact Statement and the preamble to Section 816.55) which in turn, affects the hydrology of the entire area. The Act expressly requires broad information with respect to hydrology. (Section 507(b)(11)).

Section 779.25(f) requires mapped information on the location and extent of subsurface water if encountered within the proposed mine plan and adjacent area. This information is necessary to establish the premining subsurface hydrologic regime, to determine the changes that mining would cause to the hydrologic balance, to help plan corrections for adverse impacts, and to set standards for postmining groundwater flows. Comments that the scope of this information be limited to the permit area where rejected for the reasons discussed under Section 779.25(e).

Sections 779.25(h) and 779.25(i) require mapped information on previous surface mining activities. This information is necessary to establish what areas were disturbed by previous operations, to assess the present environmental damage of the previous operations, and to establish reclamation criteria based on the natural condition of the land, not the present disturbed condition. Environmental control facilities would be identified under paragraph (i) to anticipate, minimize and avoid interruption of their operation. Information under Section 779.25(h) is necessary for the mine plan area in order to assess the cumulative impacts in the area of the mining operations. Information under Section 779.25(i) is required with respect to the permit area only because the effects of the proposed operation on these areas need not be assessed until just before mining commences.

Section 779.25(j) requires identification of gas and oil wells within the proposed permit area and water wells within the mine plan and adjacent area. Knowledge of these facilities will enable the applicant to anticipate and avoid or minimize interruption of their operation. The terms "depth if available'' have been added as a result of comments which stated that depth information is often difficult to obtain. Information on water wells is not limited to those within the permit area because such wells are related to the hydrology of the area and the Act requires broad information with regard to hydrology. (Section 507(b) (11)).

Section 779.24(k) requires mapped information on slope measurements measured and recorded according to certain criteria specified in Sections 779.24(k)(l), (2) and (3). This section has been revised to require existing land surface configuration measurements for the permit area since this information is needed only as applications for individual permits are filed. As proposed this section would have required a specific contour interval. (See proposed Section 779.25(1)(5), 43 Fed. Reg. 41841, September 18, 1978). This requirement has been deleted on the basis of many comments which stated that five-foot contour maps are generally unavailable and their preparation is very costly. Proposed Section 779.25(1)(4) has also been deleted. This section would have permitted (but not required) that slope measurements could be made from existing topographic maps. The Office believes this section is unnecessary because slope measurements may also be made in other ways, e.g., measurements in the field.

700 SECTION 779.27 Prime farmland identification for surface mines. Statutory authority for this Section is found in Sections 102, 201, 501, 507, 508, 510, 515 and 701 of the Act. Section 779.27 is a new section which has been transferred from Sections 785.17(c) and 785.17(d) of the proposed rules. This transfer has been made because the prime farmland identification procedures must be followed for all surface mining activities in order to determine which lands are covered by the more strigent requirements for prime farmland. Part 779 covers general requirements for all surface mining permit applications, while Part 785 applies to the limited special conditions and operations discussed therein.

Section 507(b)(16) of the Act requires a reconnaissance survey to determine whether a permit application should contain a soil survey. With respect to prime farmland, Section 779.27 implements this requirement. The particular items of information which are required to be addressed in the pre-application investigation are designed to enable the regulatory authority to determine, under Subsections 779.27(b) (c), that either (1) no soil survey is needed because the lands in the mine plan area are clearly not prime farmland and are, therefore, entitled to a negative determination; or (2) a soil survey is needed under paragraph (d) because the results of the reconnaissance inspection do not clearly exclude the mine plan area from the prime farmland category. Based on the results of the survey, the regulatory authority will decide whether the mine plan area definitely contains prime farmland, which would require that the applicant file a plan for restoration of the lands and other appropriate application material under Section 510(d)(1) of the Act and 30 CFR 785.17.

{15046}Section 779.27 requires that the pre-application investigation be conducted for the entire mine plan area, because Section 508(a)(1) of the Act requires permit applications to contain identification of the lands subject to surface mining activities over the full life of those activities. The Office believes that knowledge of the extent of prime farmlands throughout the mine plan area is needed for the regulatory authority to make adequate permit decisions with respect to the hydrologic impacts of surface mining activities within the first permit area on the remainder of the mine plan area, so that those activities do not adversely affect prime farmland in the remainder of the mine plan area. It should be noted, however, that the soil reconstruction plan filed with a permit application need only cover the permit area to be mined and reclaimed within the term of the permit involved. See also 30 CFR 785.17(d) and Part 823.

Section 779.27(b) establishes criteria for making negative determinations of prime farmland for the mine plan area. These criteria are indicators that can be used without the applicant conducting a detailed soil survey for the lands involved. Section 779.27(b)(1) provides for excluding land that has not been historically used for cropland, because such use is a necessary element of prime farmland as defined in Section 701 of the Act and 30 CFR 701.5. The phrase "historically used for cropland'' is also defined in Section 701.5.

Section 779.27(b)(2) excludes lands with a slope of 10 percent or greater. "Slope'' is also defined in Section 701.5. The basis and purpose for this provision was explained at 43 Fed. Reg. 41717 41718 (Sept. 18, 1978). Slope measurements are to be provided under Section 779.25(k). The Office received a range of comments on this standard, with some requesting that the criterion be lowered to exclude all lands of slopes less than 7 percent; while others suggested that, in their experience, lands have been farmed with agricultural yields at slopes of up to 14 percent. Based upon this range of experience, the Office decided not to change the regulations. As was indicated in the preamble to the proposed rules, the 10 percent slope requirement was derived by extrapolating the erodibility factor in the technical prime farmland criteria of the Soil Conservation Service (SCS) which, when judged in the light of SCS' experience, revealed that lands with slopes over 10 percent are too eroded to retain sufficient water. It should be noted that it is this element of SCS' criteria that was used as the basis for the 10 percent figure, not, as some commenters assumed, a standard soil classification grouping by slopes of intervals 0 6 percent and 6 12 percent. Moreover, those comments ignore the experience of other commenters that high-quality agricultural lands may indeed exist on land over moderate (e.g., 6 14 percent) slopes. If, indeed, a State has substantial quantities of land with slopes over 10 percent that need prime farmland protection, it is expected that special precautions may be included in the regulatory authority program for that State under Sections 731.13 or 736.22(a)(3).

Section 779.27(b)(3) establishes negative determination criteria with respect to the water availability for lands within the mine plan area. The basis and purpose of these criteria was explained in 43 Fed. Reg.

41 718 (Sept. 18, 1978). Some comments were received objecting that this provision was unnecessary, because water availability for lands is adequately addressed by consideration of soil surveys. These comments have not been accepted because the purpose of Section 779.27(b) is to allow for negative determinations to be made without the applicant having to conduct a full survey.

One commenter objected to Section 779.27(b)(3), asserting that it was inappropriate to allow for exclusion of lands from prime farmland categorization merely because lands do not receive 14 inches or more precipitation per year. This commenter cited data tending to show that, in the Northern Great Plains, agricultural productivity depended on soil types and did not correlate with precipitation. The Office agrees with the commenter's views for this unique area but does not believe that a change to the regulation is necessary because, in addition to the exclusion of less than 14 inches of precipitation, Section 779.27(b)(3) also requires that lands not be irrigated, naturally subirrigated, or have a developed water supply. Thus, in arid areas such as the Northern Great Plains, lands cannot be excluded under Section 779.27(b)(3) merely on the basis of precipitation data.

Section 779.27(b)(4) provides negative determination criteria relating to readily determinable surface soil characteristics and flooding frequencies. The basis and purpose for this Section was provided in 43 Fed. Reg.

41718 (Sept. 18, 1978). Several comments asserted that these criteria should be deleted in the final rules because they are addressed in soil surveys. They have not been rejected because the purpose of Section 779.27 is to make prime farmland determinations without resorting to full soil surveys. Another comment suggesting that these criteria be expressly specified in their relationship to preclusion or reduction of land value for cultivating crops has also been rejected because the relationship of the land to its actual use for cultivation is adequately addressed in negative determinations under Section 779.27(b)(1).

A number of comments were received on the use of the frequency of flooding concept in the proposed rule as a negative determination criteria. These comments generally objected that the proposed rule would allow exemption of too much high quality agricultural land located in flood plain areas which are frequently flooded. The Office accepted the general thrust of these comments and has adopted a final rule with a two-step flooding test to insure that lands subject to flooding are not excluded from prime farmland protection, unless flooding occurs over a long period of time to decrease crop yields. However, the Office has decided not to define flood specifically or to relate the flooding criterion to specific growing seasons, because there are matters of highly local variability which are more appropriately addressed in particular State regulatory program provisions.

700 Commenters' requests that the term "very rocky surface'' be defined in Section 779.27(b)(4) have not been accepted because this condition too{can also be matter{of substantial local variability. The Office recognizes that, in general, coverage of more than 10 percent of the area with coarse rock fragments is sufficient to preclude economical planting, cultivating and harvesting. However, there may be areas where other factors exist that make use of the land for farming highly desirable with rocky levels over 10 percent.

Section 779.27(b)(5) provides the final negative determination criteria for prime farmland which is a designation by the SCS on the basis of an existing, adequate soil survey for the mine plan area. It is to be used pursuant to the requirements of Sections 779.27(c) (d).

Numerous commenters suggested that negative determination be made on the basis of predetermined sizes of land to reflect their opinion that small plots of prime farmland lack economic farming viability. Suggested alternatives included (1) exclusion of plots of 5 10 acres, (2) allowing consolidation of small plots into one large plot, (3) exclusion of plots so small that they are not viable economic units, and (4) allowing the regulatory authority discretion to identify, with the assistance of agricultural agencies, those small tracts of prime farmland which must be reconstructed.

The Office has not accepted these suggestions for several reasons. First, the commenters provided no data or other material establishing how adequate evaluation of economic viability of prime farmland could be made with the relatively low level of detail required in a preappplication reconnaissance investigation. Second, to the extend that the economic utility of lands can be reviewed in pre-application investigation, this factor is taken into account under Section 779.27(b)(1) by careful scrutiny of whether the land has some history of agricultural use. Finally, the Office does not believe that Congress intended to limit prime farmland protection to only large plots or to utilize a purely economic test for protection of prime farmland, since the focus of the definition of prime farmland is on historical use of the land, not on whether it is used in marketable use at a particular time. Thus, the final regulations do not contain any exclusion for small plots of prime farmland.

{15047}Two commenters suggested that this entire section be deleted because there is no basis for it in the Act and the SCS can easily determine whether or not prime farmland is in the permit area. The preapplication negative determination requirement provides the mine operator with a simplified method of disposing of the prime farmland issue, especially where there are obviously no prime farmlands. This provision will undoubtedly assist the small operator in Appalachia. It is true that the SCS can easily determine the location of prime farmland soils where soil surveys have been prepared. However, where soil surveys have not been prepared, prime farmland soil surveys would otherwise be required to determined if prime farmland soil exists on the mine permit area. To avoid requiring preparation of a soil survey in obviously nonprime farmland areas, negative determination is a lower cost alternative which would be an alternative in the permit applications. For these reasons, these comments are rejected.

A few commenters endorsed the negative determination provision, however, they did not believe that a formal application was necessary. These comments have been rejected because the negative determination must be made with adequate provision for public participation under Part 786, which cannot be accomplished without use of a permit application to establish that the criteria of Section 510(d) of the Act will be achieved.

SUBCHAPTER G -- SURFACE COAL MINING AND RECLAMATION OPERATIONS PERMITS AND COAL EXPLORATION PROCEDURES SYSTEMS, 30 CFR PART 780 -- SURFACE MINING PERMIT APPLICATION-MINIMUM REQUIREMENTS FOR RECLAMATION AND OPERATION PLAN INTRODUCTION 1. Part 780 establishes the heart of the permit application: The mining operations and reclamation plan for surface mining activities. The regulatory authority will utilize this information, together with the description of the existing environmental resources obtained under Part 779 to predict whether the lands to be mined can be reclaimed as required by the Act, and if the operations can be conducted in compliance with the standards of Part 816, Subchapter K. Authority, purposes, and bases were discussed in general, at 41700 41705 (September 18, 1978).

2. As is discussed in greater detail in the introduction to the preamble to Part 779, substantial changes were made in Part 780 to narrow the scope of detailed information required in application concerning the mine plan and adjacent area. However, the Office did not accept comments asserting that all requirements of part 780 be limited to the proposed permit area. For further explanation of this issue, see the preamble to Section 701.5 and to the individual Sections of Part 780.

3. The scope, objectives, and responsibilities specified in the final rules for Part 780 are the same as in the proposed rule, with one major exception. The first phrase in proposed Section 780.2 was deleted as redundant of the statement of the scope of Part 780 in Section 780.1. In addition, minor editorial revisions were made to Sections 780.1 780.4, to clarify meaning.

4. A commenter's suggestion that Part 780 be deleted entirely as unnecessary, in view of the detailed nature of the statute itself (Sections 507(b), 508(a) of the Act) was rejected. Congress clearly intended that the Office would amplify the requirements of the Act in implementing regulations, to establish minimum standards for the permanent regulation program. (See Sections 201(c), 501(b), 503(a), of the Act).

Another commenter's objection to use of the term "comprehensive'' in the statement of objectives at section 780.2 was also rejected. Congress contemplated that operations and reclamation plans would be a full and detailed statement of all relevant information. (Sections 508(a), of the Act. H.R. Rept. No. 95 218, 95th Cong., 1st. Sess at 71 93. (1977)) SECTION 780.11 Operation plan: General requirement.

1. The statutory authority for Section 780.11 is found in Sections 102, 501(b), 503, 507(b), 508(a), 510(b) and 515(b) of the Act. This section requires that each application contain a description of proposed mining operations to be conducted within proposed mine plan area. This information is necessary to enable the regulatory authority to gauge the cumulative impacts of the proposed operations on, for example, the hydrology and fish and wildlife of that area. Section 780.11(a) requires a narrative description of the mining methods, engineering techniques, and major equipment planned for use in the operation, and a description of the anticipated production of the mine. Section 780.11(b) requires a narrative description of the planned use of certain listed facilities, including construction, modification, maintenance and removal of such facilities. The information required by this section is intended to aid the regulatory authority in determining whether the applicant can meet the performance standards of these regulations.

In addition to the changes made in this Section in connection with consideration of public comments, the Office has made editorial non-substantive changes in this Section since it was proposed.

2. Numerous commenters objected to the requirement in Section 780.11(a) for tonnage information. Some suggested that tonnage information be included only for small operator assistance programs; others suggested that tonnage information is confidential and as such should not be required. The Office considered the following alternatives in connection with these comments: (1) no change; (2) delete the requirement for tonnage information; and (3) revise Section 780.11(a) to require tonnage information only from operators participating in the small operator assistance program. The Office believes that figures on anticipated coal production are necessary to determine the feasibility of an applicant's plan to comply with the performance standards. For example, tonnage reports will assist the regulatory authority in evaluating the suitability and accuracy of proposed plans for waste storage, spoil disposal, and road locations and size and in determining the cumulative effects of the proposed mining operation. Therefore, no changes were made as a result of these comments.

3. Several commenters suggested that descriptions of major equipment (Section 780.11(a)) be limited to equipment used in mining and reclamation. The terms "those operations'' which appear in Section 780.11(a) are intended to refer back to the terms "mining operations'' which appear in the introductory paragraph to this Section. The Office believes that no additional changes or limitations are necessary, and thus has made no revisions as a result of these comments. 4. A few commenters objected to Section 780.11(b) in its entirety. Others suggested that Sections 780.11(b)(1) and 780.11(b)(2) be deleted as unnecessary. The information required under Section 780.11(b) is necessary to insure compliance with the performance standards as follows: Paragraph (b)(1), Section 816.45 46, 48, 91 93; Paragraph (b)(2), Section 816.21 25, 71 74, 100 106; Paragraph (b)(3), Section 816.59, 150 176, 180; Paragraph (b)(4), Section 816.81 89, 91 93; Paragraph (b)(5), Section 816.181; and Paragraph (b)(6), Section 816.41 47, 96. Proposed Sections 780.11(b)(1) and (b)(2), major buildings and other facilities, and utilities services, respectively, have been deleted as suggested by comments. These changes have resulted in Section 780.11(b) being renumbered in the final regulations.

{15048}5. Several commenters suggested that proposed Section 780.11(b) implied that all of the listed facilities and structures be removed following mining. As pointed out by these comments, removal is not required in all cases. Accordingly, language has been added in Section 780.11(b) to clarify that removal of facilities need not be described if those facilities are being retained as part of the proposed postmining land-use.

6. Some commenters suggested that a new requirement be added here as well as in the companion Section of the application requirements for underground mining operations that would require an operator to disturb only that amount of land necessary for the conduct of the mining and reclamation operations. These commenters cited Section 102(d) of the Act as support for their position. Section 102(d) of the Act states the general purpose that surface coal mining operations be conducted so as to protect the environment. All of Subchapter K (Permanent Program Performance Standards) is intended to implement this and the other stated purposes of the Act. (See Sections 810.2 and 816.71(a), for example.) To the extent that the Act requires information in the permit application regarding minimum disturbance of land, that information is to be submitted pursuant to Section 508(a)(6) of the Act and Section 780.18(b)(6) of these regulations. The Office believes it is without authority under Section 508 of the Act to require an entire plan directed toward minimum disturbance of land areas when this result is achieved under other regulations. Accordingly, no change has been made as a result to these comments.

700 SECTION 780.12 Operation plan: Existing structures.

This is a new section in the final regulations which sets forth the operation plan requirements in permit applications for surface coal mining activities. The authority for this Section and its basis and purpose are discussed in the preamble to 30 C.F.R. 701.11(e). This section was added in response to comments suggesting that the Office adopt an explicit rule for regulation of existing structures.

SECTION 780.13 Operations plan: Blasting.

1. Authority for this Section is Sections 102, 201(c), 503, 504, 506, 507(g), 508(a) and 515(b) of the Act. This Section provides the regulatory authority with a narrative explanation and data for evaluation of the possible environmental and public health and safety consequences of the use of blasting agents during the proposed surface mining activities. This evaluation will be used to determine whether the activities can generally be expected to comply with Sections 816.41, 816.50-816.51, and Sections 816.61-816.68 of Subchapter K. This Section was re-numbered from Section 780.12 of the proposed regulations. Technical literature considered in its development was the same as for Sections 816.61-816.68.

2. Proposed Section 780.12 would have required a blasting plan for the affected area, which could have been construed to call for a plan for the entire life of the proposed surface mining activities (e.g. for the "mine plan area''), given the way in which the terms affected area, permit area, and mine plan area have been defined. In response to comments which objected generally to requiring the application to cover areas outside the immediate permit area, the Office has specified that the blasting plan need only be provided for the proposed permit area in the final rules. These comments, as discussed below, indicated difficulty would exist in providing detailed information on blasting operations at the permit application stage. thus, the Office will not require applicants to provide highly detailed data on blasting to be conducted many years in the future (i.e., beyond the first permit term increment), as would have been required under proposed Section 780.12.

3. One commenter found no problem in meeting the proposed requirements. It is true that, in some operations, information such as drillhole patterns, hole loading, and firing orders can be developed before mining operations are started. Where the geologic formations are constant and the mining operations will be relatively short-lived, providing detailed information for the blasting plan for the entire permit area would not be difficult for the applicant. However, as pointed out by other commenters, many mining operations have varying conditions which require frequent adjustments of drilling patterns, charge weights, and detonation sequences during mining operations.

These conditions could be partially accounted for by only requiring that approximate drilling patterns be submitted with the application. However, this would still result in the frequent need to revise the permit application when conditions require drilling patterns different from those anticipated in the original application.

Therefore, the Office has modified the final rule at Section 780.13(b), to delete the requirement for detailed blasting operational data in the application itself. Instead, the applicant will be required to submit its plans to the regulatory authority for recording and reporting detailed blasting operational data during the actual conduct of mining operations.

The final rule will still provide the regulatory authority, through Section 780.13(a), with sufficient information to determine that the applicant will comply with the provisions of Sections 816.61 816.68, of Subchapter K. This also meets the requirements of Section 507(g) of the Act. To the extent that Sections 816.61 816.68, require prior regulatory authority approval of blasting, it is expected that detailed information of the kind originally contemplated for inclusion in the permit application will have to be supplied to the regulatory authority under sections 816.62 and 816.65 after the permit issuance, but before particular blasting operations are conducted. See the preamble to Section 816.65. 4. Commenters to the proposed rule noted an inconsistency between proposed Sections 780.12(b) and Section 816.68. The former would have required that a record of every blast be reported to the regulatory authority, while the latter required that records merely be retained at the permit area for public and regulatory authority-inspection. This inconsistency was eliminated by appropriate modification to Section 780.13(b) in the final rule. Records ordinarily need only be retained on-site.

5. Some editorial changes were made to subparagraphs (b) (1) (2) of the final rule to eliminate redundant language. The "configuration'' requirement of (b)(1) and "placement'' specification of (b)(2) were both eliminated as redundant of the phrase "drilling patterns, including size, numbers, depths, and spacing of holes,'' which was retained in the final rules at 780.13(b)(1).

6. The review of the regulations prompted by comments on other sections revealed an inconsistency in the regulations, because Section 816.65(b) requires regulatory authority approval of blasting under emergency conditions. Section 816.65(b) of Subchapter K states, ". . . except in those unavoid ably hazardous conditions approved by the regulatory authority, . . .'' but no provision existed in the proposed regulations for the operator to submit, for regulatory authority approval, identification of emergency situations under which these deviations would be allowed. The logical place for such a description to be submitted is with the permit application. The types of emergency conditions involved are those for which weather information and other similar historical or physical data can be supplied by the applicant, as opposed to drill patterns and precise figures on charge weights which cannot necessarily be determined until operations are about to commence in the field. Section 780.13(f) has, therefore, been added to the final rules. 700 SECTION 780.14 Operation plan: Maps and plans.

Authority for this Section is found in Sections 102, 201(b), 501(b), 503, 504, 507(b) and (g), 508(a) and 515 of the Act. In addition to the narrative plans required by other sections, this section of part 780 (presented in the proposed regulations as Section 780.13) requires that each application include certain described maps and plans. Some of these maps and plans must be prepared by specified professionals as required under Sections 507 and 515 of the Act. Accurate maps and plans are needed by the regulatory authority to determine whether the applicant can meet the performance standards of Part 816.

The Office has made several editorial and organizational changes in this section to make it consistent with other closely related sections and to clarify its provisions. The introduction has been reduced to a single sentence prefacing the three paragraphs of this section. Section 780.14(a) now includes material originally presented in the introduction and paragraphs (a) and (b). Reference to map scale has been moved to Section 771.23(e) and comments received thereon are discussed in the preamble to that Section. Section 780.14(b) now contains eleven paragraphs most of which were originally listed under paragraph (c).

Three paragraphs were deleted from Section 780.14(b). Maps for final surface configuration and location of water, air and wildlife monitoring points are now covered in Sections 780.14 and 779.25(b), respectively. The locations and descriptions of facilities which will remain permanently after reclamation are covered in the narrative statement required under Section 780.11(b). Other changes were made as a result of comments and are discussed below.

Section 780.14(a) requires information on the lands, facilities and features of the proposed mine plan and adjacent areas which will be affected or changed by the proposed operation. This information will give the regulatory authority an overview of the entire operation which will supplement the information on plans for the proposed permit area required under Section 780.14(b). Information on the proposed mine plan and adjacent areas is necessary in order to assess the cumulative impacts of the entire mining operation. Section 780.14(b) requires identification of structures, facilities and areas which will be used or affected by the mining operation. This information is required for the proposed permit area except that identification of the land area to be affected according to the sequence of mining and reclamation must be made with respect to the proposed mine plan area. Section 780.14(c) requires that maps identifying certain areas and facilities be prepared by or under the direction of and certified by a qualified registered professional engineer or professional geologist, with assistance from experts in related fields such as land surveying and landscape architecture. However, Section 780.14(c) further requires that plans for sedimentation ponds be prepared only by qualified registered engineers, and that plans for spoil disposal facilities be prepared only by qualified registered professional engineers. These requirements are in accordance with Section 515 of the Act. The purpose of Section 780.14(c) is to insure high quality planning, design and documentation of maps required in the application.

Some commenters suggested that Section 780.14(a) be revised to limit the scope of the map information required to the proposed permit area for the first five years of operation. As proposed, this Section would have required maps for the proposed permit area but without a specified time period. Section 508(a)(1) of the Act, upon which Section 780.14(a) of the regulation is based, clearly states that the application must identify "the lands subject to surface coal mining operations over the estimated life of those operations . . .'' (emphasis added). Maps of the total mine plan area will be required to give a complete picture of the entire mining operation and to assess its cumulative effects. As a result, these comments were not adopted and Section 780.14(a) was revised to require maps and plans for the proposed mine plan and adjacent areas.

These commenters also suggested that the information required under Section 780.14(b) be limited to the proposed permit area. These comments were adopted and revisions made to Section 780.14(b) with one exception. As required by Section 508(a)(1) of the Act, the identification of areas to be affected under Section 780.14(b)(2) must be given with respect to the proposed mine plan area.

Some commenters suggested that Section 780.14(b)(9) relating to identification of facilities used to protect or enhance fish and wildlife and related environmental values was ambiguous and should be deleted. "Facility'' as used in this section is intended to refer to structures such as fences, under passes and overpasses, and habitat components such as vegetation groupings and planned wetlands which are designed to mitigate the effects of mining and, where possible, enhance valuable fish, wildlife and other environmental values. This information is necessary to insure compliance with Section 816.97 and is an important aspect of postmining land use planning. No change was made as a result of these comments. A few comments suggested that the reference to design and construction specifications in section 780.14(b)(11) be deleted. The Office agrees that specifications are inappropriate for inclusion as part of a map. (See Section 780.25 for requirements for construction of the facilities listed in Section 780.14(b)(11)). Accordingly, the reference to specifications has been deleted.

Some commenters suggested that the final surface configuration map which was proposed to be required under this section (see Section 780.13(c)(11) of the proposed regulations) not be required in all cases. As discussed above in this preamble, this requirement has been moved in the final regulations to Section 780.18(b)(3). As a result of this comment and other comments discussed in the preamble to section 780.18, either contour maps or cross sections of the proposed final surface configuration may be provided in the permit application.

A few commenters suggested that Section 780.14 be revised to include an additional requirement relating to identification of reference areas on maps. Since this information is required under Section 779.24(f), a duplicative requirement was not added to Section 780.14(c). A number of commenters suggested that Section 780.14(c) be revised to state that registered professional engineers as well as professional geologists be permitted to prepare, supervise the preparation of, and certify the maps listed there. The Office agrees that this language would be more in accordance with the Act, and, accordingly, has made this change. Except for the limitations set forth in Sections 780.14(c) (1) and (2), any qualified professional may prepare the maps required under this section. The reader may wish to refer to the preamble to Section 779.24 for additional discussion of comments relating to who may prepare maps, plans and cross sections.

700 SECTION 780.15 Air pollution control plan.

Section 780.15 establishes the permit application requirements, so that the regulatory authority is provided with comprehensive and reliable information on the air-quality impact of proposed surface coal mining operations. This section is intended to assure that proposed surface coal mining operations comply with the air quality requirements of the Act.

I111. The Office considered the following general alternatives to the final regulations: (a) exempt fugitive dust from regulation under the Act; (b) require monitoring and management practices in all cases, and modeling as a condition precedent to obtaining a permit for Western surface mines with production levels in excess of one million tons per year; (c) require monitoring in some cases, together with dust-control practices in all cases and an air-quality review in some cases. The rationale for selecting the final regulations in lieu of the alternatives is found in the context of this general preamble discussion, the disposition of submitted comments related to the final regulations, and the preamble to the proposed regulations for the permanent program (See 43 Fed. Reg.41700 41703).

2. Permit application regulations for air quality are supported by Sections 102, 201(c), 501(b), 503 (a), and (b), 504, 507(b), 508(a)(9), 510, 515(b)(4) and (b)(24), and 517 of the Act. In addition to technical literature submitted in comments and relied upon in this preamble, the Office relies upon technical literature, State laws, and regulations and other materials listed in the preamble to the proposed regulations (42 Fed. Rec. 41700 41703, 41770 41771, September 18, 1978.) 3. In the Act, Congress established an explicit performance standard to control air pollution from surface mining operations. Section 515(b)(4) of the Act provides that all operators shall "stabilize and protect all surface areas including spoil piles affected by the surface coal mining and reclamation operation to effectively control erosion and attendant air and water pollution.'' (Emphasis added.) Thus, if a surface area is affected by surface coal mining and reclamation operations, the Act requires effective control of attendant air pollution. The phrase "surface coal mining and reclamation operations'' is broadly defined in the Act to mean surface coal mining operations and all operations necessary and incident to reclamation. (Section 701(27).) The definition of the phrase "surface coal mining operations'' includes not only activities conducted on the surface of lands in connection with surface mines, and surface impacts incident to underground mines, but also haul roads and access roads for such activities. Therefore, the performance standard of the Act mandates pervasive control of air pollution from surface coal mining and reclamation operations.

Congress has required that each permit application contain the measures to be taken to implement this performance standard. The permit application requirements listed in Sections 780.15(a) and (b) are the first critical steps in the process of assuring that all surface coal mining operations effectively control air pollution from all surface areas. The surface mining permit cannot be approved unless the regulatory authority finds, in writing, that the permit application meets requirements to effectively control air pollution from all surface areas. (Sections 510(b) and 508(a)(9), (14).

4. The final regulations are structured on a regional and projected production level basis. This regulatory scheme has been decided upon, in part, because of the current status of technical literature and air quality regulations in the field. The regulations also recognize the potential variations in air quality impact depending upon climate, geology, and operating characteristics of surface coal mining operations in different parts of the country.

The final permit regulations addressing air quality are separated into two parts. For surface mining activities west of the 100th meridian west longitude with projected production rates exceeding one million tons of coal per year, the application must contain an air-quality monitoring program and a fugitive-dust control plan. For all other surface mining activities in the United States, a fugitive-dust control plan is required, but a monitoring program is at the discretion of the regulatory authority.

5. Extensive public comments were received on the proposed air quality permit requirements. Some commenters suggested that the Office's proposed regulations were inconsistent with EPA's regulatory program. A few of the same commenters said the Office proposed to duplicate what EPA is doing to control fugitive dust. Acccording to these commenters, such inconsistency and duplication warranted withdrawing the regulations. In response to these comments, environmental groups pointed out that the Office's proposed regulations could not duplicate and be inconsistent with EPA regulations at the same time.

The final regulations have been modified to complement and be consistent with EPA's regulatory program. A number of meetings and discussions have been held with EPA to assure that the Office's regulations would not conflict with EPA's air quality control program. The final regulations, concurred in by EPA, follow the regulatory scheme outlined by EPA in a meeting on October 23, 1978. The Office intends to continue to work closely with EPA to assure that implementation of the regulations does not conflict with EPA's air quality control program.

6. Several commenters suggested that the Office's proposed regulations exceeded the authority of the Act. Some commenters suggested that the Office was without authority to require fugitive dust controls in excess of EPA requirements. Another group of commenters said the Office clearly had legal authority to enact air quality regulations beyond EPA regulations.

The Office believes that both the Act and the apposite case law amply support the final regulations. As stated previously, Section 515(b) of the Act contains an explicit performance standard mandating effective control of attendent air pollution from all surface areas. The Act requires the permit application to include the steps to be taken to comply with this performance standard. Sections 507, 508, and 510 of the Act.

Any doubt regarding the Office's legal authority to regulate air pollution beyond EPA's regulatory program has been removed by the District Court's decision interpreting the Act in the interim regulatory program. In In re Surface Mining Regulation Litigation 456 F. Supp. 1301 (D.D.C. 1978), Judge Flannery held that surface mining regulations governing hydrology did not supersede, amend, repeal, or modify the provisions of the FWPCA program, even though the regulations extended beyond the FWPCA program. Thus, in a situation directly analogous to the issue here, the Court interpreted the Act to authorize regulations filling in a "regulatory gap.'' 456 F. Supp. 1314.

Moreover, legislative history supports the Office's interpretation of the Act. Senator Muskie, the key drafter of the Clear Air Act and Clear Water Act, made it clear that he was concerned chiefly with assuring that the Act would not license air or water pollution in excess of the Clear Air Act and Clean Water Act requirements. In the context of discussing the scope of EPA's concurrence under SMCRA, Senator Muskie used, as an example, the relationship of the Federal Water Pollution Control Act (FWPCA) to the SMCRA's requirements for the use of best technology to control the discharge of suspended solids.

Senator Muskie said the use of best technology still might not comply with the discharge requirements of the FWPCA. He then emphasized that in this case "even the best technology would not be sufficient to allow the mining to go forward.'' (121 Cong. Rec. S 6201(1975).) {15051}Although this concept was mentioned in the context of the FWPCA it is equally clear that it was intended to also control the relationship between the Clean Air Act and the SMCRA. 700 Thus, the key drafter of both the Clean Air Act and Clean Water Act clarified the relationship between the EPA statutes and the SMCRA. Congress intended that compliance with the SMCRA would not relieve an operator from compliance with other environmental statutes. Congress did not intend that compliance with other environmental statutes should relieve operators from compliance with the Surface Mining Act. The language of Section 702(a) of the SMCRA, which provides that nothing in the Act can be construed as "superseding, amending, modifying, or repealing'' the Clean Air Act and Clean Water Act, preserves this balance between the statutes. Nowhere in the legislative history is there language which indicates that Congress intended this language to reduce the performance standards of the Act to meet the requirements of other statutes. Nor did Congress ever suggest that implementation of the SMCRA proceed at the same pace as implementation of other environmental statutes.

With enactment of the SMCRA, Congress mandated a pervasive regulatory scheme covering all aspects of pollution from surface mining. As reflected in the ambitious timetable for implementation of regulatory programs, Congress recognized that implementaion of the SMCRA would proceed at an accelerated pace to protect the environment during accelerated coal production.

The Clean Air Act and Clean Water Act are generic statutes covering virtually every category of source. These statutes do not recognize the urgent need for regulations in place to protect the environment during the nation's accelerated coal production. To interpret the SMCRA to mirror these statutes would not be consistent with congressional intent.

7. Several commenters suggested that no adverse health effects can be attributed to fugitive dust generated by surface mining. Other industry and government commenters submitted data showing violations of the national ambient air quality standards within the vicinity of mine sites. (See e.g., DOE comments, Appendix C). The same commenters argued, however, that national ambient air quality standards for total suspended particulate from surface mines are inappropriate, because the standards were developed from studies of populations exposed to TSP arising from urban industrial emissions. Moreover, these commenters added that EPA is reviewing the national ambient air quality standards for particulate matter. Environmental group and citizen commenters said fugitive dust emitted from surface coal mining and reclamation operations is harming the health of citizens living in the vicinity of mining operations. These commenters suggested that the regulations should require compliance with both the 24 hour and annual ambient air quality standards.

The Office has decided to require a fugitive dust control and monitoring program for all Western surface mining activity with production levels in excess of one million tons of coal per year. This program is designed to protect public health and safety and the environment from fugitive dust emitted from surface coal mining activities.

With respect to comments on public health effects of fugitive dust from surface coal mining activity, the National Ambient Air Quality Standards are the standards for determining whether total suspended particulate matter levels in the ambient air jeopardize public health. Some commenters correctly pointed out that EPA is reviewing the air quality standards for particulate matter. This action is, however, in response to a statutory directive to periodically review such standards. According to EPA, the standards may be revised within two years to include an inhaleable particulate standard. To date, however, EPA has not rolled back the ambient air quality standards which have been the bulwark of the Clean Air Act for the past seven years.

Moreover, the ambient air quality standards do not distinguish between protecting citizens in urban areas from those in rural areas. Nor does the reference method for determining excee dances of the standards distinguish among total suspended particulate matter collected. (See 40 CFR 50, Appendix B).

This is not to suggest that forthcoming advances in such standards will not be incorporated in the Office's regulations. To the contrary, the Office believes the final regulations contain sufficient flexibility to accommodate advances in EPA air quality regulations, while at the same time provide necessary protection for public health and safety and the environment.

Several commenters questioned the statement in the preamble to the proposed rules which related the generation of particulate less than 10 microns in size to increased health effects. DOE estimated 3.4 6.0 percent of the total suspended particulate matter from surface mines is respired into the lungs. CEA suggested that retention of 10 micron size particles is perhaps three percent or less. Neither CEA nor DOE dispute the fact, however, that a 10 micron sized particle is respirable. Rather, both contend that the probability that such particles will be deposited in the deep lung is low.

In response to these comments, the Office points out that an EPA draft report submitted in public comments and referenced by DOE and others supports direct health effects from particles less than 15 microns in size rather than the Office's estimate of 10 microns. (Health Effects Considerations for Establishing a Standard for Inhaleable Particulate.'' at 1 14 EPA 1978). Thus, the Office estimate of the portion of particulate matter which would jeopardize public health might be low. Based upon the EPA draft report, a surface mine of one million tons a year could emit 185 tons of inhaleable particulate matter. This inhaleable fraction coupled with a total projected emission rate of 600 tons a year adds even additional support to the final regulations.

Moreover, the air quality requirements of the Act are intended to protect not only public health, but also public safety and the environment from surface coal mining and reclamation operations. Uncontrolled fugitive dust from surface coal mining actually can threaten public safety by obstructing vision on roads. Such uncontrolled fugitive dust can also jeopardize pristine national parks and wilderness areas. By establishing mandatory monitoring and fugitive dust control for all Western mines wth production levels in excess of one million tons per year, the Office is assuring that the requirements of the Act are met.

8. Both industry and environmental groups commented on the proposed production level of 1 million tons of coal per year which would have initiated both mandatory air quality modeling and monitoring for Western surface coal mines. Some industry commenters said potential production rate does not determine potential quantity of particulate matter generated. Other industry commenters referred to the PEDCO study at 56 which supports an average emission factor of 1.2 lb/ton of coal mines. Thus, according to other industry commenters an average Western mine with a production level of 1 million tons per year would emit 600 tons per year of particulate matter. Environmental groups also cited PEDCO's average emission factor and agreed with industry's emission estimate of 600 tons/year. According to environmental group commenters, this argued for lowering the threshold for mandatory modeling and monitoring to approximately 500,000 tons of coal per year. A mine of this size would generate, on an average 250 tons of particulate per year, which falls within the Clean Air Act's definition of a major emitting facility. After careful consideration, the Office has decided to retain the 1 million ton per year threshold for mandatory monitoring of Western surface coal mines for the following reasons. {15052}First, this Office and now many industry and environmental commenters substantially agree with PEDCO's average emission factor of 1.2 lb/ton. It is emphasized that this is an average emission factor which falls within a range of projected emission rates for Western mines. PEDCO study at 56, 69, (1978). Based on this average emission factor, a 1 million ton per year mine will emit on an average 600 tons per year of particulate matter which is well over twice the Clean Air Act's defined rate for a major emitting facility.

Second, the mandatory nature of the regulations is substantially alleviated since this production level now only triggers mandatory monitoring.

Third, as the Office pointed out in the preamble to the proposed rule, to some extent portions of the fugitive dust will fall out in the permit area. A one million ton per year threshold for monitoring is designed to, in part, account for this phenomenon.

Finally, monitoring is an essential tool for air quality assessment. This threshold for mandatory monitoring will assure that the majority of Western surface coal mines are adequately monitored. Under the approved monitoring program, air quality samplers should be placed upwind and downwind of the operation to determine the impact of the operation on air quality. Through such air quality monitoring, the operator, regulatory authority, and public should be able to evaluate the effectiveness of fugitive dust control measures required under Section 816.95 of the regulations.

9. Industry commenters joined by DOE, CEA and EPA said an air quality review to ascertain compliance with National Ambient Air Quality Standards could prevent many Western mines from being permitted. This argument was premised upon computer modeled emissions from Western mines and on the inaccuracies of existing models to predict air quality impact. ERT Report at 4 1 (1978).

700 Environmental groups, on the other hand, said an air quality review prior to mining was essential to determine whether proposed fugitive dust practices are adequate.

The Office has decided to delete the requirement for an air quality review. The mechanism of prescribing fugitive dust control practices, then monitoring to determine the efficacy of such practices has been adopted in lieu of an air quality review. Additional fugitive dust control measures can be required if monitoring reveals air quality problems. This regulation thus accommodates the environmental groups' concern that adequate fugitive dust control measures will be applied by the operator while at the same time operators' permit applications will not be arbitrarily rejected based upon inaccurate modeling results.

10. Industry and government commenters said naturally occurring particulate alone can result in violations of air quality standards. Thus, according to commenters monitoring and fugitive dust control measures should not be required. Environmental groups argued for more detailed monitoring requirements to assure that air quality standards are achieved and maintained.

The Office has decided to require a monitoring program for all Western surface coal mines with production levels in excess of 1 million tons per year. The monitoring program can be designed so that naturally occuring particulate can be discounted by placing air quality samplers upwind and downwind of the surface mining activity. The monitoring program must also provide sufficient data to evaluate the effectiveness and additional need for fugitive dust control measures.

11. Industry commenters suggest that fugitive dust from coal mining activity has little effect on aesthetics and visibility. On the other hand, environmental groups contend that fugitive dust from surface mining activity will significantly impair visibility and affect aesthetics. The final regulations are intended to protect visual and aesthetic resources from surface coal mining activities. As one commenter pointed out, a proposed surface coal mining activity could reduce visibility in a national park by as much as 60%. (FOE comments at 6.) Moreover, another commenter submitted a series of photographs documenting the impact on visibility and aesthetics of controlled versus uncontrolled fugitive dust from surface coal mining activities. (Sierra Club comments at 2.) With proper application of fugitive dust control measures and an adequate monitoring program such visual and aesthetic resources will be pro tected.

Environmental groups suggested that the proposed regulations did not provide for adequate prevention of significant deterioration (PSD) review. According to the commenters, failure to include a provision for PSD leaves out a very important air quality determination and contravenes the affirmative responsibility of the Department of the Interior for protection of Class I areas. Industry and government commenters said PSD determinations should be made by EPA and state air pollution control agencies.

To avoid conflict with the Clean Air Act's program for prevention of significant deterioration and protection of nonattainment areas, the Office has decided to not require separate demonstrations of compliance with these Clean Air Act programs beyond the requirement of section 508(a)(9) of the Act.

In response to environmental groups' concern that the regulations must adequately protect pristine areas, the Office believes the final regulations, coupled with section 522 of the Act and other Departmental programs will assure that the air resources of National Parks and Wilderness areas are protected.

12. Industry commenters suggested that section 515(b)(4) of the Act gives the Office, at most, the authority to control particulate matter from affected surface areas. According to commenters, the Office should not regulate SOx, NOx, CO, HC or any other pollutant besides total suspended particulate matter.

The final regulations require the control of fugitive dust from affected areas. OSM is not at this time promulgating separate regulations to control SOx, NOx, CO, and HC. However, section 508(a)(9) of the Act clearly requires the applicant for a permit to state the steps to be taken to comply with all applicable air quality laws. The Office is, therefore, not without statutory authority in this area.

SECTION 780.16 Fish and Wildlife Plan.

Authority for Section 780.16 is found in Sections 102, 205, 501, 503, 504, 507(b), 508(a), 510(c) and 515(b)(2), (10), (17), (19), (23), and (24) of the Act, The endangered Species Act of 1973, regulations of the U.S. Fish and Wildlife Service, and the Fish and Wildlife Coordination Act. Section 780.16 requires applicants for a mining permit to explain how they plan to minimize adverse effects of their mining operations on fish, wildlife and related environmental values, and achieve enhancement of such resources where practicable. The regulations also are intended to prevent harm to threatened or endangered species, and other wildlife or their habitats which are protected under State, Federal, or international laws. Required statements are to cover all species and habitats identified by studies conducted pursuant to Section 779.20. Plans must also show compliance with all standards of Section 816.97.

1. Section 780.16(a)(2) requires the applicant to assume the burden of establishing that enhancement is not practicable as required by Section 510(b) and 515(b)(24) of the Act. In all cases when statements submitted pursuant to Section 780.16(a)(1) do not clearly show that enhancement of fish, wildlife, and related environmental values will result after mining and reclamation is complete, then the applicant is required to submit a statement explaining why, after using best technology currently available, enhancement is not practicable. 700 {15053}2. Section 780.16(b) requires a statement to be submitted as part of each application explaining what methods or management techniques will be used by the applicant to protect or enhance certain important species of fish and wildlife and their habitats which are of special significance as identified in studies conducted pursuant to 779.20. Species to be protected or enhanced include threatened or endangered species listed by either the Federal Government or the States, species specifically protected by State or Federal laws or international treaties, and other species or habitats identified to be of special significance.

Special habitats include habitats or components of habitats which are considered critical or limiting to wildlife or fish populations. Examples of such habitats are winter forage or cover areas, water supplies, nesting sites or areas, parturition areas, nursery areas, restrictive breeding areas, etc. Methods of protection may include location of roads or other ancillary facilities to avoid unnecessary human activity in such areas, construction of artificial nesting platforms, or devices to replace destroyed nest trees, construction of wildlife water impoundments, or guzzlers to replace destroyed or impaired watering areas, and numerous other techniques.

3. A guideline for methods and techniques for minimization of surface mining effects of fish and wildlife has been prepared for the U.S. Fish and Wildlife Service. This document "An Environmental Guide to Western Surface Mining'', Part III: "Impact Mitigation and Monitoring'' may be a useful information source for both Eastern and Western coal operators and may be obtained from OSM Regional Offices at small cost upon request.

4. Comments addressed five major issues pertinent to Section 780.16. Other comments could not be categorized into major issues and are discussed as independent recommendations. Since results of studies conducted under Section 779.20 are incorporated as part of the fish and wildlife plan required by Section 780.16, and such studies are the primary foundation upon which plans will be based, comments addressed in the Preamble for Section 779.20 were considered in determining the requirements of fish and wildlife plans. Comments addressed whether requirements for a fish and wildlife plan pursuant to Section 780.16 is necessary or appropriate, in order to implement provisions of the Act. Comments recommended that Section 780.16 be deleted from the regulations. Some commenters said the Act does not require a fish and wildlife plan and that requirements of Section 515(b)(24) are met by other performance standards such as those for hydrology, revegetation, water pollution and sedimentation. Other commenters said that, if the study conducted under Section 779.20 identifies potential protection problems, the regulatory authority can impose impact control measures as conditions of the permit.

Commenters recommend that requirements for submission of a fish and wildlife plan be discretionary with the regulatory authority. Commentors add that, unless an endangered species is to be protected, there is no need for a detailed plan.

5. The Office has determined that the requirements of Section 780.16 are necessary to meet the mandates of Section 515(b)(24) of the Act which require the use of best technology currently available to minimize the adverse effects of mining on fish, wildlife, and related environmental values, and to enhance such resources where practicable. Unless a plan is prepared which establishes standards for protection of fish and wildlife and methods or techniques designed to meet those standards, there is no assurance that effects on fish and wildlife will be minimized.

Additionally, Section 515(b)(24) of the Act is not limited to endangered species, but extends to all species of fish and wildlife. The mere fact that State and Federal fish and wildlife agencies would be allowed to comment on wildlife protection needs under Section 779.20 would not provide adequate assurance that the requirements of Section 515(b)(24) of the Act would be met, or that such comments would be complied with. A plan as part of the permit application will assure compliance with Section 515(b)(24) of the Act. Although other performance standards, such as those for hydrology or water quality, will aid in fostering clean water and suitable habitat for some species of wildlife, compliance with these performance standards will not prevent direct mortality to fish or wildlife species, nor will such standards prevent degradation of terrestrial habitats.

In some cases significant adverse effects may be caused by a single small operation. If habitat disturbed is an area limiting on wildlife such as available water or a crucial nesting or breading area, very small areas of disturbance may greatly affect large populations of animals. (Odum, 1971, pp 117 125) If, in fact, little or no potential adverse effects have been identified from studies conducted pursuant to Section 779.20 then planning requirements will be minimal commensurate with the findings of the studies. Under combined procedures of Sections 779.20 and 780.16, excessive planning will not be required. For the above reasons the Office has elected to retain the requirements of Section 780.16 which require a fish and wildlife plan to be prepared for all species identified in studies conducted pursuant to Section 779.20.

6. Several commenters questioned whether certain operations should be exempt from the plan requirements of Section 780.16. Some recommended that small operations be exempt from requirements of preparing a fish and wildlife plan. Others recommended that no fish and wildlife plan be required for permit areas of less than 100 acres. Other comments placed the recommended minimum size at 200 areas. Commenters assert that disturbances of limited areas do not warrant the development of a fish and wildlife plan; therefore, the requirement of Section 780.16 is excessive for small operations. Comments said State regulatory authorities normally will have sufficient information available. It is further asserted by commenters that region specific, rather than site-specific, information is adequate to identify reclamation procedures to enhance fish and wildlife on small operations.

Commenters recommended that operations which will be reclaimed to certain land uses other than wildlife should be exempt from requirements of a fish and wildlife plan pursuant to Section 780.16. Commenters stated if the post-reclamation land use is proposed as agriculture, industrial, pasture etc., a fish and wildlife plan would serve no purpose. Commenters further state that the requirement for a fish and wildlife plan for residential, commercial, or industrial, land uses is meaningless and unnecessary, since these land uses are incompatible with wildlife.

700 {15054}Other commenters recommend that no exemptions be allowed because of the size or operation or post-reclamation land uses. They recommended wording which requires each application to contain a fish and wildlife plan, stating "the adverse environmental impact caused from a small operator could be as severe and as degrading as those caused by a large operator.'' The Office has determined that exemption of significant effects regardless of the size of operation has no authority in the act. Section 515(b)(24) requires that adverse effects on fish and wildlife be minimized and that fish resources be enhanced where practicable. The best means of assuring that permit conditions are adequate is to have clearly defined fish and wildlife protection and enhancement goals. The Office's reationale and findings presented in the Preamble for Section 779.20, are incorporated here by reference.

7. Commenters recommended that the applicant should "demonstrate'', as opposed to "saying'' that enhancement would be accomplished where practicable. No explanation of "demonstrate'' was provided. Commenters said that the requirement to enhance is in conflict with the Act, because the Act requires only the return of land to original or better productivity.

Commenters said that to be consistent with the Act the words "where practicable'' should be added following the word "enhancement,'' because Section 515(a)(24) of the Act requires "enhancement of such resources where practicable''.

Several commenters said Section 780.16 should provide that reclaimed areas may not support original wildlife species. Commenters stated that "enhance'' implies productivity higher than before reclamation which is not the intent of the Act. Some commenters recommend that a statement requiring the applicant to show how enhancement is practicable is required by Section 780.16(a)(1), and therefore Section 780.16(a)(2) should be deleted.

Commenters recommended that requirements for enhancement in Section 780.16(a)(2) be changed to allow the applicant to make a unilateral determination of practicability. Commenters add that the surface owner should be free to decide whether lands should be reclaimed for fish and wildlife purposes. Commenters recommended replacing the word "enhance'' with the word "preserve'' in Section 780.16(a)(1)(2). The commenters added that it is not the intent of the Act to impose an affirmative requirement to enhance fish and wildlife and related environmental values.

Commenters recommended that enhancement should not be required for an operation which disturbs less than 200 acres under a permit. Commenters assert that a requirement to enhance where practicable is burdensome and unnecessary for small operations in Appalachia. Commenters further asserted that region specific, rather than site specific, studies should be sufficient. Commenters stated that enhancement is not necessary unless the post-reclamation land use is fish and wildlife habitat.

The Office agrees that, to be consistent with the Act, the words "where practicable'' should follow the word "enhance'' in Section 780.16(a)(1). Section 780.16(a)(1) requires the applicant to provide a statement of how best technology currently available will enhance fish and wildlife and related values. Under Section 780.16(a)(2), the applicant has the burden of showing why it is not practicable to enhance fish and wildlife and related environmental values. The Office has determined that changing the regulation to allow the applicant to determine unilaterally if enhancement is practicable would have an effect of allowing the applicant to regulate itself. There is no authority in the Act which allows the regulatory authority to abrogate its responsibility by allowing such decisions to be made by applicants. The Act requires that land be reclaimed to a condition of equal or better productivity and Section 515(b)(24) of the Act requires that adverse impacts for fish and wildlife be minimized and such fish and wildlife resources be enhanced where practicable. The Office finds no authority, nor is there any evidence in the legislative history of the Act indicating that these requirements were intended to be subject to landowner approval. Often the surface owner also is the applicant. In such cases, the applicant could make unilateral determinations of the condition to which land would be reclaimed. This would not implement the intent of Sections 515(b)(2) or 515(b)(24) of the Act.

The Office has determined that replacement of the word "enhance'' with either "restore'' or "preserve'' would not be consistent with the intent of the Act to "enhance'' where practicable, or to reclaim to equal or better productivity. Section 780.16 does not require operators to enhance unless it is practicable to do so. Section 510(a)(b) of the Act required that the burden of establishing compliance shall be on the applicants.

8. Commenters addressed the need for a program for monitoring effectiveness of fish and wildlife plans prepared pursuant to Section 780.16. Comments recommended that State wildlife agencies monitor impacts of mining on fish and wildlife; the regulatory authority consult with the U.S.F.W.S. and State fish and wildlife agency regarding the adequacy of monitoring programs submitted as part of fish and wildlife plans; monitoring be of sufficient breadth and detail to adequately document the performance of the fish and wildlife plan; Section 780.16 be written to include monitoring requirements developed in conjunction with information collected pursuant to Section 779.20; and that small operations disturbing less than 200 acres be exempt from monitoring requirements.

Section 780.16(b) requires the applicant to provide a statement of how monitoring will be done for species and habitats identified by studies conducted pursuant to Section 779.20. The detail to which such monitoring will be done is not defined in the regulation. The Office has determined that the consultation requirements of Section 779.20 and 786.17 provide adequate control of types of monitoring methods and techniques and the detail to which monitoring will be accomplished. The consultation process of Section 779.20 also provides for input from various wildlife or habitat management agencies pertaining to which species or habitat should be monitored pursuant to Section 780.16(b). Consultation procedures will foster adequate monitoring of the performance of fish and wildlife plans. The Office has rejected recommendations to exempt small operators from monitoring requirements based on the rationale previously stated for comments recommending similar exemption from requirements to prepare a fish and wildlife plan and requirements to enhance fish and wildlife resources where practicable.

9. Comments address which agencies or authorities should determine "best technology currently available'' for minimization of adverse effects on fish and wildlife and enhancement of such resources. Comments recommended that Section 780.16 establish a clear role for State wildlife agencies to determine best technology currently available. Alternatives included: (a) allowing wildlife agencies to determine best technology currently available with review by the US Fish and Wildlife Service; (b) allowing the US Fish and Wildlife Service to be consulted by the regulatory authority in determinating best technology currently available; and (c) allowing best technology currently available to be determined by State Wildlife or conservation agencies.

700 I11The Office agrees that State wildlife or conservation agencies and the U.S. Fish and Wildlife should have a role in determining the best technology for wildlife protection and enhancement in fish and wildfish plans prepared pursuant to Section 780.16.

The consultation requirements of Section 779.20 provide such a role in determining which species or habitats should be included in fish and wildlife plans, and the consultation requirement of Section 786.17 provide a similar role in assuring that plans utilize best technology currently available to meet the requirements of Section 515(b)(24) of the Act.I1110. Other commenters addressed the following points.

{15055}(a) Comments recommended that Section 780.16 require compliance with the standards of Section 816.97.

The Office agrees with the rationale of the commenter and the wording of Section 780.16 (a) has been changed to accommodate this recommendation.

(b) Comments recommend that fish and wildlife plans prepared pursuant to Section 780.16 incorporate baseline information gathered by studies conducted pursuant to Section 779.20.

The Office agrees with the rationale of the commenter and has added appropriate wording in Section 780 (a)(1) to implement this recommendation.

(c) Comments recommended Section 780.16 should require fish and wildlife plans to contain a description of the re stored biotic community.

A description of the premining biotic community is required in Section 779.20. The description of proposed post-reclamation biotic communities will to the extent possible be part of the fish and wildlife plan submitted pursuant to Section 780.16.

(d) Commenters recommend that Section 780.16 require statements from the USFWS regarding which impact control measures, management techniques, and monitoring methods are recommended for the site.

The Office has determined that consultation processes of Section 779.20 and 786.17(a)(2) are sufficient to allow USFWS to recommend such measures, techniques and methods.

(e) Commenters recommended that Section 780.16 require fish and wildlife plans to be submitted for formal review by USFWS prior to approval by the regulatory authority. The Office has added consultation requirements in Section 786.17(a)(2) to provide review by USFWS, in cases where fish, wildlife or habitat concerning their areas of responsibility are involved.

(f) Comments recommended that the wildlife plan be extended to species other than those protected by Federal or State laws. Many important species are not currently protected by law.

The Office agrees with the rationale of the commenter and has modified Section 780.16(b)(2) to include all important species indentified by studies conducted pursuant to Section 779.20.

(g) Commenters recommended that the word "unique'' as used in proposed regulations be defined. A commenter stated that habitats of unique value are required to be protected; however, there is no definition for such habitats in the regulations or in the Act.

The Office has removed the phrase "unique values'', from Section 780.16, and has replaced it with the phrase "unusually high values''. Procedures for determining unusually high values are provided in the consultation process of Section 779.20.

(h) Comments recommend deleting the phrase "related environmental values''from Section 780.16 because this phrase is not defined in the regulations.

The Office has elected to retain the use of the phrase "related environmental values'' in order to be consistent with the language of Section 515(b)(24) of the Act.

SECTION 780.18 Reclamation plan: General requirements.

1. Authority for this Section is found in Sections 102, 201, 501, 503, and 507 of the Act. Each of the Sections of 780.18 is required by additional Sections of the Act; these Sections are cited below. Each of these Sections is intended to provide information in the degree of detail necessary to enable the regulatory authority to determine whether the proposed mining and reclamation operation will be conducted in compliance with Subchapter K of these regulations. This purpose was previously stated in Section 780.17, but has now been moved to Paragraph (a) of this Section. Section 780.18(a) is intended to be a general introduction to all of the regulations following Section 780.18 which relate to the content of the reclamation plan. The remainder of proposed Section 780.17 has been deleted because it was either repetitive of other regulations or unnecessary, and proposed Section 780.19 has been numbered Section 780.18. Addition of a new Section (a) in Section 780.18 has, in turn, resulted in the remainder of this Section being renumbered as appropriate.

2. As originally proposed (Section 780.17), a reclamation plan under this Section would have required information relating to the lands within the permit area and adjacent areas. Section 780.18(a) now requires a reclamation plan only for those lands within the permit area. This change was made since all the reclamation activities under Section 780.18(b), which will be described in the plan, will take place within the permit area.

700 3. A few commenters suggested that the requirement which appeared in proposed Section 780.17 relating to identification of areas mined before February 3, 1978, was unnecessary. This map and plan requirement has now been moved to Section 771.23 of the regulations. As suggested by this comment, February 3, 1978, is not a date to which identification of areas mined is keyed, and Section 771.23 reflects this change.

4. Some commenters suggested that the introductory sentence of Section 780.18(b)(1) be revised to include information for the first five years of operation only. This comment was rejected since the regulations already limit the permit term to five years. (See Section 778.17; see also Section 786.25 for the showing necessary for a longer fixed term permit). Since the suggested language was unnecessary, no change was made.

5. Section 780.18(b)(1) requires a detailed timetable for the completion of each major step in the reclamation plan and Section 780.18(b)(2) requires a detailed estimate of the cost of reclamation together with supporting calculations. The authorities for these Sections are Section 508 (a)(7), 508(a)(5) and 509(a) of the Act. The Office has made one nonsubstantive change in paragraph (b)(1). The term "accomplishment'' has been changed to "completion'' to clarify that information in the timetable must describe how steps ultimately will be completed.

6. Some commenters suggested that Section 780.18 (b)(1) and (b)(2) be revised to tie the timetable to specific sub-areas within the total mine plan area to minimize the bond requirement. This suggestion was considered, but since incrementing the amount of the bond on sub-areas is already permitted under Section 800.11(b), the Office believes that no change is necessary in Section 780.18.

7. A few commenters suggested deleting Section 780.18(b)(2) since applicants ordinarily propose estimates for reclamation which are too low to be useful. Two other similar issues relating to Section 780.18(b)(2) were also raised. Some suggested deleting Section 780.18(2) on the ground that calculations underlying the estimated cost of reclamation are proprietory. Others suggested that Section 780.18(b)(2) be rewritten to require that estimated costs be "computed with the assistance of the regulatory authority.'' The suggested changes were not made in this Section for the following reasons.

The Office believes that the information called for under Section 780.18(b)(2) is necessary for the regulatory authority to determine the amount of the bond, particularly since, as required by Section 509(a) of the Act, the amount must be necessary to assure completion of the reclamation plan if the work had to be performed by the regulatory authority itself. Detailed estimates as well as the supporting calculations will enable the regulatory authority to make comparisons and decisions on bond amounts in light of its regulatory experience and knowledge. Deletion of Section 780.18(b)(2) on the basis of the data's confidential nature is unnecessary. Information which must be contained in reclamation plan may be withheld from the public pursuant to Section 786.15. The Office believes that inserting language relating to regulatory authority assistance is unnecessary. The regulatory authority may at any time assist an applicant, and it is expected that some regulatory authorities may issue guidance to applicants on matters such as estimating costs of reclamation. However, the Office believes it inappropriate to require such assistance.

{15056}8. Section 780.18(b)(3) requires a plan for backfilling, soil stabilization, compacting and grading with contour or cross-section maps describing the anticipated profiles and configuration of the proposed permit area. Authority for this Section is Sections 507(b)(14), 508(a) (5) and (10), 515(b) (3) through (6), (8), (10), (11), (13), (17), and (22) of the Act.

9. Several commenters suggested that contour maps instead of cross-sections be required under Section 780.18(b)(3). It was suggested that contour maps are more useful documents and contain the information from which cross sections can be developed. The Office has accepted these comments but has retained cross-sections as an alternative. Accordingly, Section 780.11(b)(3) has been revised to reflect that either contour maps or cross sections may be submitted.

10. A few commenters suggested that Section 780.18(b)(3) be revised to state compaction requirements. No change was made because the Office believed that such a requirement is more appropriately considered under the performance standards. Compaction of topsoil is discussed under Section 816.24 and compaction of soil is covered under Section 816.101.

11. Section 780.18(b)(4) requires submission of a plan for removal, storage and redistribution of topsoil, subsoil and other material, and (b)(5) requires a plan for revegetation of the proposed permit areas, including at least the seven elements enumerated in the Section. These requirements appeared in the proposed regulations as one Section, 780.19(d). The Office has now separated the two requirements because they are distinct features of the reclamation process. Editorial, non-substantive changes were made in Section 7d8.18(b)(5) to clarify what the Office intended by "schedule of revegetation'' (i.e., timing), and "success of reveg etation'' (i.e., comparison with the reference area).

12. Some commenters suggested that "plants and trees'' as used in Sections 780.18(b)(5)) (ii) was too restrictive. The Office agrees and has thus changed the language to include seeds and seedlings generally. This comment also is reflected in the revised wording of Section 780.18(b)(5)(iii), which now related solely to methods rather than to amounts of seeds and seedlings. For the purposes of this requirements, seedlings means all plants propagated by both sexual and asexual reproduction.

13. Some commenters suggested that Section 780.18(b)(5)(iv) be revised to read, "Type of mulch to be used; rate per acre and method of applying material.'' The Office believes that all of these concepts are already included within the terms used in the regulation_ "mulching technique.'' Therefore, no change has been made.

14. Section 780.18(b)(6) requires that the reclamation plan include a description of the measures to be used to maximize recovery of the coal resources. Authority for this Section is found in Sections 508(a)(6) and 515(b)(1) of the Act. No comments were received on this requirement. However, editorial changes have been made to make the language consistent with language used in the referenced regulation, Section 816.59.

15. Section 780.18(b)(7) requires a description of measures for disposal of materials which might be a fire hazard. Section 515(b)(14) of the Act is the authority for this requirement. Some commenters suggested that this Section also require a description of contingency plans developed to preclude sustained combustion of these materials. This alternative was considered and accepted as more nearly in accord with Section 515(b)(14) of the Act. Accordingly, this requirement has been added to 780.18(b)(7).

16. Section 780.18(b)(8) requires a description of the measures to be used to seal or manage various mine openings. Authority for this Section is Sections 507(b) (11) and (13), 508(a) (5) and (13) and 515(b)(10) of the Act. No comments were received on this Section. Editorial changes have been made to reflect the types of mine openings which must be managed, cased or sealed pursuant to Sections 816.13 15.

17. Sections 780.18(b)(9) requires a description of the steps to be taken to comply with Federal air and water laws and State air and water and health and safety laws. Statutory authority for this Section is Sections 508(a) (9) and (13) and 515(b) (4), (8) and (10) of the Act. Several commenters suggested revisions to this Section. Some suggested requiring the applicant to provide proof of meeting the stated requirements. Others questioned whether this Section required receipt of all other applicable permits as a condition precedent to approval of a permit to mine. Some objected to this requirement as unnecessary and burdensome in light of other agencies' duties to monitor compliance with other laws. All of these alternatives were considered. However, the Office believes that no change can be made in this Section. Section 508(a)(9) of the Act states without qualification that the reclamation plan must include a statement of "the steps to be taken to comply with applicable air and water quality laws and regulations and any applicable health and safety standards.'' Section 780.18(b)(9) merely requires description of the steps the applicant plans to take. This Section is not intended to require that all applicable permits be applied for and received prior to submission of a reclamation plan.

18. Section 780.19(h) of the proposed regulations would have required a description of how the mining equipment and facilities would be removed from the mining area. The commenters suggested that description of a plan is unnecessary since the performance standards already require removal of equipment. The Office agrees and has deleted this requirement. Readers are referred to the appropriate performance standard (Section 816.132).

700 SECTION 780.21 Reclamation plan: Protection of hydrologic balance.

This Section provides for the methods by which proposed activities are to be conducted to protect the hydrologic balance. Authority for this Section is found in Sections 507(b), 508(a), 509, 510(b), 515(b), 517, 701, 702, and 717(b) of the Act.

Information submitted pursuant to this Section will enable the regulatory authority to perform the assessments required by Sections 507(b)(11), 508(a)(13), and 510(b)(3) of the Act and 30 CFR 786.19(c), and to determine whether the proposed surface mining activities will be conducted in accordance with the following requirements of Subchapter K: 071 Reclamation Plan Subchapter K 780.21(a) 816.41.

780.21(a)(1) 816.41 816.42; 816.46.

780.21(a)(2) 816.41; 816.42; 816.51; 816.52; 816.53; 816.54.

780.21(a)(3) 816.41; 816.51; 816.52; 816.53; 816.54.

780.21(b)(1) 816.41 816.44; 816.47.

780.21(b)(2) 816.41 816.42; 816.45 816.46; 816.49.

780.21(b)(3) 816.41; 816.51.

780.21(b)(4) 816.42; 816.52.

780.21(c) 816.41; 816.57.

Paragraph (a) of Section 780.21 requires each plan to contain a narrative description and supporting materials to assure the protection of the quality and quantity of water and the rights of present use to those waters in the mine plan and adjacent areas. This section principally implements Sections 508(a)(13) and 717(b) of the Act. An editorial change was made to this paragraph in the final rule, to cross-reference applicable portions of Parts 779 and 816.

{15057}Paragraph (b) requires the description of Subsection (a) to include four subsidiary plans to establish how Sections 816.41 816.57 of Subchapter K will be complied with. Technical literature used in consideration of this Section was the same as used for Sections 779.13 779.17 and Sections 816.41 816.57 of Subchapter K. Section 780.21(b)(1) principally implements Sections 508(a)(5) and 508(a)(12) of the Act. Section 780.21(b)(2) requires that the applicant propose specific quantitiative effluent limitations on the amounts of pollutants in discharges subject to 30 CFR 816.42 and appropriate treatment plans. It is intended that the regulatory authority will closely scrutinize the proposed plans under Section 780.21(b)(2), to ensure that the requirements of Sections 816.41 816.42 and 816.45 816.46 will be achieved by the proposed operations.

Section 780.21(b)(3) will provide the information needed to determine if the applicant will restore the approximate recharge capacity of the affected area at the conclusion of the mining operations. Section 780.21(b)(4) will implement the requirements of Section 517(b) of the Act and 30 CFR 816.52. Because the material at Section 780.21(b)(4) (i) (x) of the proposed rule was redundant of Section 816.52, it was deleted in the final rule and replaced with an appropriate cross-reference.

Paragraph (c) requires that the application include the determination needed under Section 507(b)(11) of the Act. Certain specific water quality parameters, corresponding to those listed at 30 CFR 779.16(b)(2) are listed. The basis for requiring those parameters is discussed in the preamble to Section 779.16.

1. A number of commenters objected to proposed Section 780.21(c)(2), which required the applicant to provide a description of the probable cumulative impacts of all anticipated mining in the general area upon the hydrology of the area. Paragraph (c)(2) was deleted, since Section 507(b)(11) of the Act specifies that the permit application must only contain "a determination of the probable hydrologic consequences of the mining and reclamation operations. . .'' The "assessment'' is to be made by the regulatory authority " of the probable cumulative impacts. . . upon the hydrology of the area. . .'' As a result of these changes, Paragraphs (c)(1) and (c)(2) in the proposed rules were combined into a single Paragraph (c). The regulatory authority is to make the assessment under 30 CFR 786.19(c).

2. Section 780.21(d) of the proposed rules was deleted, because the matter covered in it is adequately addressed at Section 779.13. Comments directed to Section 780.21(d) are treated with similar comments to Section 779.13 in the preamble to that Section.

3. Several commenters suggested replacing "mine plan area'' with "proposed permit area'' in Section 780.21(a). This was rejected. Sections 508(a)(13) and 515(b)(10) of the Act require that operations must minimize the disturbance to the prevailing hydrologic balance at the minesite and in associated off-site areas. In order to meet the requirements of the Act it is necessary that the reclamation plan address the mine plan and adjacent areas. (See also the discussion in the preamble to "mine plan area'' at Section 701.5.) 4. One commenter objected to the use of the phrase "the more stringent of the following'' in Section 780.21(b)(2). However, the phrase was retained because it is required by Sections 505(b), 515(b)(10), and 702(a) of the Act. Commenters also objected to the expense of the requirements of 780.21, but gave no supporting data. The Office believes the requirements will not be excessive, for the same reasons as discussed in the preamble to Section 779.16.

700 SECTION 780.23 Reclamation plan: Post-mining land uses.

Statutory authority for this Section is found in Sections 102, 201, 501(b), 503, 504, 508(a), and 515(b) of the Act. Section 780.23 sets forth the criteria for use in preparing the post-mining land use analysis and plan. The analysis required by this Section should discuss and compare the information required to be submitted under other sections of the regulations (see 779.22, Land use information, and Section 780.18, Reclamation plan: General requirements, for example), and result in a complete evaluation of the net impact which the proposed mining and reclamation (including establishment of the proposed post mining land use) will have upon the usefulness of the area affected.

Section 780.23(a) requires each plan to contain a description of the use to which the land within the permit area will be put following reclamation. This description must include a discussion of the utility and capacity of the reclaimed land to support a variety of alternative uses and a discussion of the relationship of the proposed post mining land use to existing land use plans and policies. All reclamation plans must discuss how the proposed use is to be achieved and what support activities may be needed to achieve the use (Section 780.23(a)(1)), and the consideration which has been given to making all of the proposed surface mining activities consistent with surface owner plans and applicable state and local land use plans and programs. (Section 780.23(a)(4)).

A description and discussion of management plans to be implemented must also be included if the proposed post mining land use is to be range or grazing land (Section 780.23(a)(2)). Finally, where the pre-mining and proposed post mining uses are different, Section 780.23(a)(3) requires discussion and analysis of all of the information and criteria which will be used by the regulatory authority in approving an alternative post-mining land use under Section 816.133.

Section 780.23(b) requires that the applicant submit a copy of the comments on the proposed use by the legal or equitable owner of record of the surface, and by state and local governmental units which would have to initiate, implement, approve or authorize the proposed use.

As originally proposed, Section 780.23(b) would have required the applicant to obtain the comments of the surface owner of the entire mine plan area. Section 780.23 (a) and (b) now require a detailed description of the proposed use within the proposed permit area (Section 780.23(a), introductory paragraph), and a copy of the comments of the surface owner of the proposed permit area. (Section 780.23(b)). These changes were made as a result of comments and because establishment of the proposed use which is to be discussed and commented on in the reclamation plan will take place within the permit area during the permit term rather than the full mine plan area. It should be noted, however, that explanations of the relationship of the proposed use to existing land use policies and plans and of the consideration given to making the proposed surface mining activities consistent with applicable State and local land use plans and programs will necessarily involve a discussion and comparison of the lands and land uses outside of the proposed permit area, i.e., the mine plan and adjacent areas.

As originally proposed, Section 780.23 consisted of subsection (a), (b), (c). Proposed Section 780.23(b) has now been included within Section 780.23(a), and proposed Section 780.23(c) has been renumbered Section 780.23(b). In addition to these organizational changes, the Office has made editorial non-substantive changes in Section 780.23. In particular, numerous commenters pointed out a typographical error in Section 780.23(a)(3). The referenced regulation has been changed from 30 CFR 816.124 to 30 CFR 816.133.

Several commenters expressed a number of general objections to Section 780.23. Some commenters stated that Section 780.23 should require a statement describing the existing land uses of the surrounding area. The Office made no change as a result of this comment since this information is required to be submitted under another section of these regulations (Section 779.22(c)). Some commenters complained that Section 780.23 does not require the applicant to identify that the post mining land use will be different from the premining use. The Office believes that Section 780.23(a)(3) clearly requires this information and that no further clarification is necessary. Thus, no change has been made in response to these comments. Finally, some commenters suggested that Section 780.23 be revised to include consideration of how the proposed post mining land use will be consistent with the premining land use. Again, the Office believes that no change is required here since this issue is covered elsewhere in the regulations. (See Section 816.133).

{15058}Several commenters objected to Section 780.23(a)(2) as unnecessary and overly burdensome. The Office believes that a detailed reclamation plan must be based on a detailed plan for postmining land use. In the case of range or grazing land which require some degree of maintenance, it is necessary to know historical carrying capacity, proposed postmining carrying capacity and site specific capability of the land in order to determine feasibility of the proposed use. The Office believes this information can best be provided in the form of a proposed management plan. Accordingly, no change was made as a result of these comments.

Some commenters questioned what would constitute a land use different from the premining use under Section 780.23(a)(3). As noted earlier in this preamble, a different or alternative land use occurs when any change of land use category within the permit area occurs. (See discussion of land use definitions in Section 701.5).

Some commenters suggested that a new subsection be added under Section 780.23(a) to require discussion of the relationship of the proposed postmining land use to existing natural resource or comprehensive management plans developed by state wildlife agencies. The Office has not made the suggested revision. The regulations already provide that these agencies will have an opportunity to comment if they must initiate, implement, approve or authorize the proposed use. (Section 780.23(b)) Note also that state and local land use plans and programs will be discussed under Section 780.23(a)(4).

Several commenters suggested that Section 780.23(b) should be deleted in its entirety as unnecessary and not required by the Act. These comments were rejected; Section 780.23(b) of the regulations is clearly required by the Act. (See Section 508(a)(3) of the Act).

700 SECTION 780.25 Reclamation Plan: Ponds, impoundments, banks, dams and embankments.

(1) Authority for this Section is found in Sections 102; 201; 501; 503; 504; 507(b); 508(a); 510(b); 515(b)(8); 515(b)(10); 515(b)(11); 515(b)(13); 515(b)(21) and 515(f) of the Act.

This Section requires each reclamation plan to include specific elements with maps and cross-sections of all water-holding facilities subject to the approval of the regulatory authority under Subchapter K. These elements must cover the construction, operation, maintenance, and removal of the proposed facilities.

(2) Technical literature used in formulating Section includes all literature used in developing Sections 816.46, 816.47, 816.49, 816.56, and 816.91 816.93 of Subchapter K. The reader is also referred to the preamble discussion of those Sections for information concerning issues bearing on Section 780.25.

(3) The requirements of Section 780.25 are intended to produce a thorough, well-planned design of the structures and facilities covered by this Section with proper maintenance, operational and emergency procedures provided for all aspects of the project.

(4) Paragraph (a) of Section 780.25 outlines a 2-phase plan submission process where limited general data is requested at the time of the original permit application and detailed design plans are required at some later date, but before construction of the structure.

(5) Paragraph (a)(1) of Section 780.25 specifies the general plan requirements that must be submitted with the original permit application. The information requested is the minimum necessary for the regulatory authority to assess the cumulative hydrologic impact resulting from structures that will be constructed as part of the surface mining operation and to determine the feasibility of the operations and reclamation plan insofar as impoundments and waste banks are concerned.

(6) Paragraphs (a)(2) and (a)(3) specify requirements for the detailed design plan that must be submitted and approved by the regulatory authority before each structure is constructed. The requirements for larger structures are different from those for smaller ones, based on the differences in the magnitude of risks to human safety, property, and the environment.

(7) Paragraph (b) specifies the design and plan requirements submitted for sedimentation ponds, including any sedimentation ponds intended as permanent impoundments.

(8) Paragraph (c) specifies the design and plan requirements submitted for permanent and temporary impoundments. These requirements include those contained in Mine Safety and Health Administration (MSHA) regulations. (9) Paragraph (d) specifies the design and plan requirements for coal waste banks to meet the standard engineering requirements of the applicable performance standards.

(10) Paragraph (e) specifies the design and plan requirements for coal processing waste dams and embankments and reflects items necessary to determine the adequacy of the structure as specified in the Act and the performance standards of these regulations. A foundation investigation is necessary to assure the ability of the site to support suitably the structure and evaluate the seepage effects on the structure. Supervision by qualified persons insures that the investigation will be conducted in a manner which will achieve adequate subsurface exploration and testing. The forces and pressure of water can pose serious threats to the security of dams if not properly controlled; therefore, seepage analysis and control are of considerable importance in the design of safe dams. (Cedergren, H.R., 1967, p. 208.) (11) Paragraph (f) specifies the requirement to include a stability analysis in the design of each sedimentation pond, permanent and temporary impoundment, or coal processing waste dam that exceeds certain size limitations. This requirement is consistent with MSHA regulations and is in accordance with U.S. Soil Conservation Service and U.S. Army Corps of Engineers requirements. Stability analyses are conducted on embankments and foundations to determine stability against failure from sliding, sloughing, or rotation along potential failure surfaces. (USSCS, 1967a, p. 5 2.) Based on results of stability analyses, problems relating to safety of embankment or cut slopes can be identified and corrected (Cedergren, H.R., 1967, pp. 305 308). Standard methods for testing and analysis must be utilized to achieve consistency in evaluation.

(12) Response to specific comments on the proposed rules are: (a) One commenter suggested that since the regulations pertaining to the surface effects of underground mining operations contained in Section 784.16 are identical to the regulations covering surface mining contained in this Section, that Section 784.16 need not be repeated. The commenter recommended that a reference to Section 780.25 in Section 784.16 would suffice rather than repeating the entire Section.

The final rules retain separate provisions for the requirements pertaining to surface mining and underground mining. Although this results in longer final rules, it will make it easier for the operators to locate the requirements for each specific type of operation. Retaining the specific Sections will also aid inspection activities since all requirements pertaining to surface mining and all activities pertaining to the surface effects of underground mining will be contained in separate Sections which stand alone.

700 {15059}(b) As originally proposed, the rules would have required that a detailed design plan for all impoundments and waste banks be submitted with the permit application. Many commenters suggested that the detailed design plans for all structures covered by Section 780.25 need not be developed at the time of application for a mining permit. Those commenters suggested that the permit submission for these structures be divided into a two-phase procedure, with the permit application containing a general plan for each structure, with the detailed design plans being submitted for approval at a later date, closer to the time that the structure is constructed.

I11The final rules incorporate the two-phase submission procedure recommended by the commenters. The permit application will contain the basic information required to provide the regulatory authority the information needed to assess the hydrologic impacts of the proposed mining operations and to make other broad determinations on the feasibility of the operation. It will also include a schedule and agreement concerning the submission and approval of the detailed design plans. The required information for the generl plan is contained in Section 780.25(a)(1). The detailed design plan will be submitted to and approved by the regulatory authority before construction begins on the structure. Requirements for detailed design plans for structures are contained in Sections 780.25(a)(2) and 780.25(a)(3). This regulatory procedure will provide the general data needed by both the regulatory authority and the interested public at the permit application stage to assess the general effects of the mining operations. At the same time, it will allow the operator the flexibility of carrying out the detailed geologic investigations and developing final design closer to the time when the structures will be constructed. The Office feels that under these rules adequate information is required at the permit application stage for meaningful public participation with respect to planned impoundments and waste banks. The Office also believes that the quality of the structures will not be compromised if the public comment/hearing process is not conducted for each detailed design submitted during the life of the permit, since high-level professional participation is required for such designs to assure sound planning.

(c) The proposed rules would have required registered professional engineers to approve all plans for sedimentation ponds and waste banks (proposed Section 780.25(b)(1) and (c) respectively (43 FR 41844, Sept. 18, 1978) and would have required either engineers or engineering geologists to conduct or supervise geotechnical investigations for all waste dams and embankments.

A few commenters stated that registered land surveyors are allowed to complete some structure designs by States that are currently regulating mining operations and recommended that the final rules should allow registered land surveyors to perform some designs.

The final rules allow registered land surveyors to certify the design of small structures other than sedimentation ponds and coal processing waste dams that are not regulated by the MSHA (Ifft, T.R., 1979s, p. 1, and pp. 266 and 312 of attachment; Ifft,. T.H. 1979s is a reference which outlines and documents procedures and contacts between OSM and the U.S. Army Corps of Engineers leading to the Chief of Engineers concurrence on the final rules required under Section 515(f) of the Act).

Section 780.25(a)(1)(i) is retained as required by Sections 507(a)(14) of the Act, but the detailed design plan was divided into two separate categories as defined by Sections 780.25(a)(2) and 780.25(a)(3). Registered land surveyors are permitted to certify those small structures (other than sedimentation ponds and coal processing waste dams) covered by Section 780.25(a)(3), on the grounds that they present less risk to health and safety, public and private property and the environment.

(d) Some commenters recommended that the wording "approved by a registered professional engineer'' contained in proposed Sections 780.25(b)(1) and 780.25(c) should be changed to "certified by a registered professional engineer.'' This recommendation was accepted and wording contained in Section 780.25(a)(1)(i) has been revised to follow more closely that contained in Section 507(b)(14) of the Act. (e) The proposed rules mentioned the need for determination that the site selected for the structure would adequately support the weight in various proposed sections, including Sections 780.25(a) ("geotechnical investigation''), 780.25(d) ("geotechnical investigation'' and "structural competence of the bedrock''), and 780.25(d)(5) ("subsidence''). One commenter recommended that the subsidence survey explicitly required in proposed Section 780.25(d)(5) should be a general plan requirement for all structures covered by Section 780.25 rather than just applicable to coal processing waste dams and embankments. This recommendation was accepted because a subsidence survey is needed to insure the safety and stability of all proposed structures. This provision was moved to Section 780.25(a)(1)(iv) in the final rules.

(f) Several commenters recommended that the survey regarding the potential effects of subsidence of the subsurface strata referred to in proposed Section 780.25(b)(5) should be restricted to the effects of past mining operations.

The final rules restrict the survey covering the potential effects of subsidence on proposed structures to only subsidence that may result from past mining operations. The Office believes that adequate controls on future mining under structures are contained in the final rules (see Section 784.20) which makes it unnecessary for the survey required by Section 780.25(a)(1)(iii) to address possible subsidence problems that may result from future mining operations. In any case, analyses of effects of future mining at this stage would be highly speculative and of little value. These effects from subsidence would be discussed in the subsidence plan required by Section 780.20 for each future underground mining operation.

(g) A few commenters recommended that the "mine plan area'' referred to in Section 780.25(b)(1) should be changed to "permit area''. This recommendation was not accepted since the mine plan area is the overall area during the life of the mine which must be considered when making the determination concerning the permanent nature of a dam or impoundment and the cumulative effects of impoundments on the hydrologic balance.

700 (h) Several commenters requested that the requirement to submit design assumptions and calculations with a discussion of each alternative considered in selecting the specific design parameters and construction methods, as contained in proposed Section 780.25(e) (final rule Section 780.25(f)), be eliminated because the design must be certified that it meets the basic requirements by some responsible professional person. The commenter suggested that the certification statement should be the basis for the regulatory authority's approval of the design. This recommendation was not accepted because the regulatory authority must review and approve the final design of the structure and needs the information in order to have a full understanding of the project and to determine the safety, adequacy, and suitability of the final design before granting final approval of the design.

(i) A commenter questioned whether the 200 acre-feet reference in proposed Section 780.25(e), now Section 780.25(f), was correct or if this should be 20 acre-feet. This reference was a typographical error in the proposed rules and has been corrected to 20 acre-feet in the final rules. The 20 acre-foot cut-off was clearly proposed on Sept. 18, 1978; explicitly in proposed Sections 816.46(q), 817.46(q) and by reference in proposed Sections 780.25(b), 784.15(a), 816.91(a), and 817.91(a). {15060}(j) Another commenter recommended that proposed Section 780.25(d)(1), now Section 780.25(e)(i), discussing the need to determine the number, location, and depth of borings and test pits, be eliminated since these are not required for the size of structures normally covered by these rules. This recommendation was not accepted and the requirement is retained because it is the responsibility of the designer of the structure to determine the need for a geotechnical investigation and then present this information in a manner that will aid the regulatory authority in its review and approval of the design of the structure.

(k) A commenter recommended that the requirement to include a stability analysis for sedimentation ponds and coal processing waste dams and embankments which exceed 20 feet in height or impound more than 20 acre-feet contained in proposed Section 780.25(e), now Section 780.25(f), should be eliminated from the final rules because MSHA requires this in its regulations. This recommendation was not accepted because the Office is mandated by Section 515 of the Act to regulate the design of sedimentation ponds and coal processing waste dams and embankments. The requirements contained in the final rules are consistent with the requirements contained in MSHA regulations.

(l) Another commenter recommended that detailed plan requirements for sedimentation ponds, waste banks and waste dams and embankments, which were proposed as Sections 780.25 (b), (c), (d), and (e) should be deleted from the final rules because MSHA regulates all of these structures. This recommendation was not accepted because the Act specifically requires that sedimentation ponds, coal processing waste banks and embankments are to be regulated by the Office. It was also not accepted because MSHA is charged with miners' safety and this Office is charged with broader impacts on public safety and the environment. The design standards for these structures must be included in the final rules to assure that the regulatory authority and the public has the information needed to ascertain that the requirements of the regulatory program can and will be met for these structures, and that environmental and public health and safety concerns will also be met.

(m) One commenter recommended that a description of the character of the overburden be included with a description of the character of the bedrock as proposed in Section 780.25(d)(2) because the stability of a structure is determined by all the foundation materials. This suggestion was accepted and new Section 780.25(e)(2) includes a determination of the character of the overburden and bedrock in the geotechnical investigation conducted for coal processing waste dams and embankments.

(n) A commenter recommended that the requirement for sedimentation pond plans, proposed as Section 780.25(b), be expanded to itemize requirements pertaining to the removal of sedimentation ponds at the end of the mining operation period. This recommendation was not accepted since this requirement was covered in proposed Section 780.25(a) and is included in the final rules in Sections 780.25(a)(2)(iv) and 780.25(a)(3)(iv), which are applicable to all structures covered by Section 780.25.

(o) A few commenters recommended that the geotechnical investigation of the reservoir site referred to in proposed Section 780.25(d)(2), now Section 780.25(e)(2), should be eliminated and that the investigation be restricted to just the embankment area. This recommendation was not accepted since a sound geotechnical investigation should include descriptions of the expected behavior of foundation and reservoir rim materials at the site when subjected to both the changed geological environment associated with the construction and operation of the dam and the geologic processes occuring during the mining operation. The impoundment area or reservoir site area could contain geologic conditions that need to be considered in the design of the structure and the geotechnical investigation must include the analysis of any such areas.

(p) As discussed in Paragraph (4)(j) of the preamble for Section 816.93, a cross-reference to Mine Safety and Health Regulations 30 CFR 216 1 was added to Sections 780.25(b)(2), (c), and (e) in order to assure that this Office's and MSHA regulations are consistent concerning sign requirements at structure sites. 700 SECTION 780.27 Reclamation plan: Surface mining near underground mining.

Authority for this Section is Sections 102, 201, 501(b), 503, 504, 507(b), 508(a) and 515(b) of the Act. This Section requires that when surface mining activities are to be conducted within 500 feet of an underground mine, the applicant must provide sufficient information to enable the regulatory authority to determine whether the operation will be conducted in compliance with the requirements of Section 515(b)(12) of the Act and Section 816.79 of the performance standards.

No comments were received on this Section. However, the Office made editorial, non-substantive changes for clarity and consistency of terminology in this Section as follows: "Surface mining operation'' was changed to "surface mining activities,'' a term defined in 30 CFR 701.5 having a narrower meaning than surface coal mining operations and more appropriate to usage in this Section in the final regulations. "Within the permit area'' has been added to indicate clearly the scope of activities to which this Section is applicable. The reference to requirements of the regulatory authority and Mine Health and Safety Administration were deleted as unnecessary since the referenced Section 816.79 already refers to these entities.

SECTION 780.29 Diversions.

Authority for this section is Sections 102, 201, 501, 503, 504, 507(b), 508(a), 510(b), 515, and 517(b) of the Act. A description of diversions to be constructed within the proposed permit area is required, to enable the regulatory authority to determine how stream channels, overland, and shallow ground water flow will be controlled in accordance with Sections 816.43 816.44 and 816.57 of Subchapter K. In reponse to comments generally objecting to the specification of extension of the plans to the entire mine plan area, this section was restricted to the immediate proposed permit area in the final rules. OSM concluded that the detailed knowledge of exactly when and where all diversions will occur cannot ordinarily be determined for more than the time covered by one permit.

SECTION 780.31 Protection of public parks and historic places. Statutory authority for this Section is found in Sections 102, 201, 501(b), 503, 504, 507(b), 508(a), 515(b), and 522(e) of the Act. Section 780.31 requires that the reclamation plan include a description of measures to be used to minimize or prevent harm to public parks and historic places. This Section also requires a description of measures to be taken to secure the approval of the regulatory authority and other agencies if such approval is required pursuant to Section 761.12(f). This Section is applicable only if the proposed operation has the potential of adversely affecting a public park or a place included on or eligible for inclusion on the National Register of Historic Places, and is intended to provide the regulatory authority with sufficient information to accomplish the procedures of Section 761.12(f).

{15061}A few commenters suggested that a wide variety of areas of significance (scientific, historic, archaeologic, topographic, geographic, ethnologic, recreational, cultural, Indian culture) be substituted for the term "historic places.'' That term, as used in this Section, is intended as neither a limitation nor an expansion of the resources described in Section 761.12(f)_"places included on, or eligible for listing, in, the National Register of Historic Places.'' Since the resources identified by the commenters may already be listed or eligible for listing (see 36 CFR Part 60), the Office believes that the suggested additional language is unnecessary.

SECTION 780.33 Relocation or use of public roads.

Authority for this Section is found in Sections 102, 201, 501(b), 503, 504, 507(b), 508(a), 515(b), and 522(e) of the Act.

The information requested pursuant to this Section is necesary to ensure that public interests are protected where: (1) traffic flow, pavement stability and road profile may be endangered from mining operations and (2) to ensure that the quality of a temporary or new road is the same as or better than that of the road being relocated. This data will enable the regulatory authority to administer the provision of Section 522(e)(4) of the Act and Paragraph 761.12(d)(4) of these rules. The only changes made in this rule, since the proposed regulations, were editorial changes for clarity or consistency with other rules.

The reader is referred to the preamble discussion for Section 784.18 for a discussion of issues also considered in the context of this Section.

SECTION 780.35 Disposal of excess spoil.

Authority for this Section is found in Sections 102, 210, 501, 503, 507, 508, 510, and 515 of the Act.

Section 780.35 requires the operator to provide necessary plans describing the sites and structures to be used in disposal of excess spoil. These requirements are identical to requirements for other fill placement and embankment designs. For discussion of the permit requirements, the reader is referred to the preamble discussion for Section 780.25(d).

Section 780.35(a) requires plans and necessary backup materials (maps; cross-sections; etc.) including a geotechnical investigation of the proposed sites, in order for the regulatory authority to determine if the operator can comply with the performance standards of Sections 816.71 816.73 and 816.104 105.

Section 780.35(b) describes the basic requirements of the required geotechnical investigation. These requirements are the same as those required for coal processing waste dams and embankments, Section 780.25(d), and the reader is referred to that Section of the preamble for discussions of issues relating to these requirements.

Literature used to develop this Section is the same as identified in Sections 816.71 816.73 of these regulations.

Several language modifications have been made to the September 18, 1978 Section 780.35 of the proposed regulations as follows: 700 (1) In Section 780.35(b), the first sentence has been deleted because it reiterates requirements to comply with performance standards identified in Section 780.35(a); (2) A Modification to the language of Section 780.35(c) was made in order to reference Section 816.71(i) which has a more specific definition of steep slopes; (3) Section 780.35(c)(2) has been modified to read "engineering specifications'' instead of "engineering parameters'' because an "exact statement of particulars'' is necessary to determine if the operator can comply with the performance standards; and (4) Section 780.35(d) has been deleted because the requirement for the analyses to be performed by a "registered professional engineer, engineering geologist or other qualified person'' is identified in Section 816.71(b) and would be redundant if left in this Section.

Several comments suggested that a Paragraph be added to Section 780.35 to require the operator to demonstrate that excess spoil exists which cannot be placed into mine workings. This suggestion was rejected by OSM because this requirement is adequately covered in Sections 816.104 and 816.105 of the final regulations; however, it should be emphasized that spoil is allowed to be disposed of pursuant to Section 816.71 74 only when it is in excess of that necessary to comply with Sections 816.104 and 816.105.

A commenter suggested that disposal be treated in a manner to consider visual environmental aspects and harmonize with the surrounding environment. This suggestion is covered by the performance standards in Section 816.71(a)(3), and on this basis OSM has rejected it.

A comment suggested that the regulatory authority retain the discretion to not require all the geotechnical tests in Section 780.35(b), citing flat, stable locations as an example. OSM has determined that such an investigation is required by Section 515(b)(22) of the Act.

A suggestion to delete the last sentence of Section 780.35(b)(5) was rejected because OSM has determined that this information is necessary to properly evaluate the stability analysis as well as for the regulatory authority to enforce the permit. A suggestion was received which would require the removal of combustible materials from mine refuse. While this practice may presently occur among some operations, present technology may not have progressed sufficiently to develop a reasonable requirement to be placed on all operators. OSM, however, encourages research in this area.

A suggestion to delete Section 780.35(b)(5) in its entirety was rejected by OSM because this Section is required in order to comply with Section 515(b)(22)(c) of the Act.

Several commenters indicated that to include design specifications and assumptions was creating a complicated permit and going beyond what is specified in the statute. For the regulatory authority to be able to evaluate a permit in terms of protecting the environment, the health and safety of the miners and public, and to protect the structural aspects of both the land and buildings, it is necessary that detailed specifications and assumptions be identified in the permit application.

Several commenters suggested the deletion of the last sentence of Section 780.35(b)(5) describing engineering design assumptions and calculations on the basis that it is indefensible to require data years in advance of construction. These suggestions were rejected because the intent of Section 780.35 and, in fact, the entire permitting process is to plan ahead to prevent the adverse effects of mining.

A commenter suggested that "excess spoil'' be defined in Section 701.5 of the regulations. The reader is referred to that Section of the preamble for discussion of the definition of "excess spoil''.

SECTION 780.37 Transportation facilities.

Legal authority for this Section is found in Sections 102; 201; 501(b); 503; 504; 507(b); 510(b); and 522(e)(4) of the Act.

Movement of coal within the mine plan area is generally accomplished by one or a combination of truck haulage, conveyor, or railroads. Transportation facilities also must be provided for the movement of people and equipment. Section 780.37 will provide the regulatory authority with information on the planned methods of coal, personnel, and equipment movement at the mine to ensure that transportation facilities are constructed, reconstructed, used, and maintained in a manner which complies with 30 CFR 816.150 156, 816.160 166, 816.170 176 and 816.180 of Subchapter K.

{15062}Since the proposed regulations were published, modifications have been made in the references to Section numbers of the performance standards in Subchapter K to conform to the Section number changes in the final regulations.

Several comments were received on Section 780.37 and considered in development of the final rules.

1. One comment received suggested that the Section be revised to require the same degree of detail the Federal Land Policy and Management Act (FLPMA) requires for a right-of-way application for a road or a railroad. This proposal was rejected because Section 510(b) of the Act sets forth specific information to be submitted. A general narrative, as required under FLPMA, can be inadequate to assess cumulative impacts on the environment in all cases.

700 2. Several comments argued that each road or rail system used as access to the mine plan area should be covered by the operation plan requirements. Others felt that plans only should be required for facilities within the permit area. Those roads and rail systems within the permit area are covered. Requiring similar information for the entire mine plan area or beyond, was deemed overly burdensome and unnecessary, since each facility regulated under the Act will be covered by a permit application before it is built, and detailed specifications would not greatly assist the regulatory authority earlier. Certain types of engineering, mining, and design information simply would not be available for the entire proposed mine plan area at the time of the first permit application. Accordingly, Section 780.37 has been revised from the proposed regulations to require a detailed description only for facilities within the proposed permit area. Minimal information for the whole mine plan area will be required under Paragraph (e) only insofar as necessary to evaluate cumulative impacts of the mine and overall feasibility.

3. One comment suggested that a Section be added to allow the regulatory authority to require acceptable alternative information when it finds such information is needed as part of the transportation plan. This commenter's concern is adequately covered by Part 786 of the final regulations, which contains a number of processes available for persons to have a dialogue with the regulatory authority to maintain the planning flexibility needed to deal with specific circumstances.

4. Several public comments, as well as the limitation of the requirement for detailed plans to permit-area facilities, support the addition of Section 780.37(e) to require a general description for activities associated with transportation facilities within the proposed mine plan area. The intent of the general description for the mine plan area is to provide the regulatory authority with the fundamental information required_ (a) To obtain planning information in a manner which will minimize adverse effects on surface resources, (b) To determine and recommend specific items to be considered for inclusion in permits for protection of resources and facilities, (c) To arrive at specific actions needed to adjust plans and uses for potential cumulative impacts on the environment, and (d) To inform, in a timely manner, interested persons of the general requirements of the operation over entire expected life of the mine.

5. One comment requested that applicants for permits should not be required to submit design information for existing nonconforming structures. The reader is referred to the preamble discussion of Sections 701.11(e), 784.12 and 786.21 for a discussion of this issue.

6. The Office considered requiring a description of the measures to be taken for road maintenance. This would have required that measures to be taken be submitted to the regulatory authority for approval. Such a requirement was rejected because maintenance-associated environmental prob lems are adequately covered in other parts of the regulations, including Subchapter K, and because the regulatory authority can always insist measures be adopted if, as a result of inspections or an analysis of the design, such measures are warranted.

7. Several comments raised objections to provisions in proposed Section 780.37(e), relating to special requirements for embankments over 15 feet in height. The comments correctly pointed out that if the culverts or other drainage structures are adequately designed to pass the proper precipitation event, a 15-foot embankment limit adds no environmental protection. Both MSHA and some State schemes have a 15-foot limitation, and to the extent such requirements will remain in effect, such a requirement in OSM's regulations would be redundant. The 15-foot limit has been deleted both in the performance standards and here. The reader is referred to the preamble for Sections 816.150 816.176 for further discussion of this issue.

SUBCHAPTER G -- SURFACE COAL MINING AND RECLAMATION OPERATIONS PERMITS AND COAL EXPLORATION PROCEDURES SYSTEMS, 30 CFR PART 782 -- UNDERGROUND MINING PERMIT APPLICATIONS-MINIMUM REQUIREMENTS FOR LEGAL, FINANCIAL, COMPLIANCE, AND RELATED INFORMATION INTRODUCTION Part 782 concerns permit application contents for underground mining activities and corresponds to Part 788 for surface mining activities. As such, Part 782 sets forth the minimum requirements for approval of regulatory programs for general, legal, financial and compliance information required to be contained in applications for permits. This will provide the regulatory authority and the interested public with a detailed understanding of the nature of the entity which will mine the coal and the nature of the entities which have ownership interests in the property to be mined. Legal authorities for Part 782 are the same as those indicated in the preceding part of this preamble for Part 778 of this Subchapter, except to the extent that material differences between underground mining activities and surface mining have been identified by the Office.

As required by Sections 516 (a) and (d) of the Act, the Office has considered whether distinct differences exist between surface and underground mining as to the permit application contents requirements here involved. The Office has concluded that, with the exception of three matters, no such distinct differences exist because requirements for financial, legal, compliance and other non-technical information do not differ between surface and underground coal mining. The distinct differences identified are discussed in detail below.

1. The Office has identified differences of interests between surface and underground mining in Section 782.13. The Office believes that Congress in Section 507(b) of the Act intended that the regulatory authority determination required under that Section be made both with respect to the interest of surface area owners where surface operations and facilities may affect them and to the interest in the coal estate that is to be mined. Additional explanation of the intent of this Section is located in the preamble discussion of Section 778.13.

2. The Office has identified differences between surface and underground mining regarding right of entry and operation information (Section 782.15). The Office believes that Section 510(b)(6) of the Act requires that the regulatory authority determination be made only with respect to the interest of surface area owners where the actual mining of coal on the surface is involved and not to underground mine workings. Accordingly, Section 782.15(b) has been limited to requiring information regarding the right of the applicant to conduct mining operations only where underground mining activities would involve the actual surface mining of coal that has been severed from the private surface estate. For example, the applicant would be required to explain its right to conduct surface mining during the development of the face-up area for an underground mine, or if dams or other facilities are to be located on the surface. The applicant would not, however, have to specifically establish its right to conduct underground mining under Section 782.15(b).

{15063}3. The third material difference identified from Part 778 was in the description of the phasing of the proposed operations over the entire life of the mine, as required by Section 782.17(a). That Section has been modified from the corresponding provision in Part 778 to provide the public and regulatory authority with an understanding of the sequence of the proposed operations in both surface and underground areas to fully reflect the requirements of Sections 507(b) (8), (14) and 508(a)(1) of the Act.

(c) Most of the comments addressed to Part 782 raised issues similar to those which were made in Part 778. Accordingly, the disposition of comments in the preamble to Part 778 serves similarly for most of the comments to Part 782. Where changes were deemed necessary to Part 778, appropriate modifications were also made to Part 782. See 30 CFR 782.13 (a), (d), (g); 782.14(c); 782.15; 782.16(a), (c); 782.17(a); 782.19(c); and 782.21. In addition, the definition in Section 782.5 of the proposed rules has been moved to Section 770.5 because the term involved is also used in Part 778.

SECTION 782.13 (d) Comments which specially focused on Part 782 were as follows: 1.

Section 782.13(a). Commenters objected to the requirement for the inclusion of information on surface property owners in a permit for an underground mine because surface owners were not involved in the underground mine operations. The objections were accepted in part and Section 782.13(a), (2), (3), and (4) were altered by changing "property to be mined'' to the phrase "areas affected by surface operations or facilities'' and adding "coal to be mined.'' I11Information is needed on surface ownership in areas affected by surface operations and facilities because of the substantial impact those operations and facilities can have. However, for lands which will only overlay underground mine workings, detailed knowledge of surface owners is needed only to the extent required to implement Sections 784.20 and 817.121 817.126. Those Sections provide authority for obtaining that information when needed. Regarding information on ownership of the coal to be mined, commenters did not show, and the office sees no basis for altering the Congressional policy articulated in Section 507(b)(1) (2) of the Act for underground mining activities.

2.

Section 782.13(b).

A few commenters contended that the term "surface mining operation'' was misused in Section 782.13(b)(3). This comment was accepted and the term "surface coal mining operation'' was added. This term, as defined in Section 700.5 now includes surface impacts incident to an underground mine. This same change was also made in Section 782.14(c) 3.

Section 782.13(e).

Objections were raised to the requirement of listing all owners of property continguous to the permit area, rather than just mineral owners, and owners in areas contiguous to areas affected by surface operations.

The comments were not accepted, since Section 516 of the Act does not authorized the Office to enact a waiver for the complete exemption of underground mine workings from permit requirements. Section 516(d) of the Act provides authority only to modify "permit application requirements,'' and permit "procedures,'' not substantive standards as to what activities must be regulated under a permit system. Moreover, as Congress was well aware, the location, construction, and long-term maintenance of underground workings can cause substantial, adverse impacts on the environment and public health and safety if not properly controlled. See Sections 516(b) (2), (9), (12) protection against water pollution discharges from underground mine workings), 516(b)(11) (protection of fish and wildlife); 516(b)(1) and 516(c) (protection of lands and structures overlying underground workings) of the Act. The Office therefore must conclude that Congress intended for underground workings to be included within the permit area and subject to regulation under permit systems.

Section 782.13(e) is based upon the express language of Section 507(b)(2) of the Act. Underground mine workings can be laid out, constructed and operated to adversely affect adjacent coal seams, depending upon the methods of mining used, particularly if underground blasting is involved. It is important, therefore, for the regulatory authority to know who is responsible as the legal owner of adjacent coal seams so that these persons can be advised of potential threats to their resource interests. In addition, this information is important for the regulatory authority to know in the event that action in one set of underground workings drains water from adjacent workings for the purpose of determining legal responsibility for water pollution resulting from discharges of the combined drainage.

See, e.g., Commonwealth v. Barnes and Tucker Co., 455 Pa. 392, 319 and 871 (1974), T3aff'd. aft. remand, 472 Pa. 115, 371 and 461 (1977). 700 SECTION 782.14 4.

Section 782.14(a)(1).

Commenters considered that the term "mining permit'' in Section 507(b)(5) of the Act, when applied to underground mining, could mean more than just reclamation-type permits. The use of the term "permit'' is defined by Section 701 of the Act and 30 CFR 701.5 to indicate clearly the exact type of permit being considered for undergound mining operations. Therefore, no change was deemed necessary to this Section.

SECTION 782.16 5.

Section 782.16(a).

Some commenters suggested that the statement of whether the proposed permit area is limited for underground mining operations should apply only to actual surface disturbances areas. Parts 764 and 765 specify the areas and types of operations that are to be considered in this required statement. Adding the words suggested by the comments would, therefore, be redundant to those parts.

6.

Section 782.16(c).

Several commenters raised questions about existing structures and affected areas. The Office has revised and clarified the requirements of this Section to be consistent with the changes made in Sections 701.11, 780.12, 784.12 and 786.21 and are discussed in the preamble to those Sections. SECTION 782.17 7. Some commenters suggested that Section 782.17 be revised to require that permits for underground mining activities be issued, in all cases, for the entire life of the activities, rather than ordinarily limited to a five-year term under 30 CFR 786.25(a). The Office did not accept these comments for several reasons.

The commenters argued that permits extending for the full life of the operations are needed for the applicant to be able to obtain financial commitments for construction of mine-related facilities. No data were submitted to support that argument. This made it impossible for the Office to fully evaluate the comment, particularly as to the question of why a permit term for the full life of an underground mine would be necessary, as opposed to one which extends beyond five years only for an additional increment limited to the time necessary for the applicant to obtain the necessary financing of equipment and to open the mine.

This was important because the Office's review of the relevant provisions of the Act revealed that although Congress decided to allow for permit terms of greater than five years, those extensions were to be limited only to the additional increment of time which the applicant needs to obtain financing for equipment and opening of the operation.

{15064}Section 506(b) of the Act provided that permit terms are to be limited to a maximum of five years, subject to the following exception: ". . . if the applicant demonstrates that a specified longer term is reasonably needed to allow the applicant to obtain necessary financing for equipment and the opening of the operation and if the application is full and complete for such specified permit term.'' (emphasis added) The language of this provision itself indicates that Congress intended that the exception to the five year permit term be limited only to the increment needed for obtaining financing for equipment and opening of the operation. First, extensions beyond the five year permit term are an exception too a general provision, which must be narrowly construed. Second, the exemption is qualified to a period of neccessity for both obtaining financing and opening of the operation, indicating that Congress intended it to be administered with particular emphasis to the time period needed to commence operations, and not for the purpose of facilitating the conduct of mining operations in the long run.

This view is also supported by the provisions of Section 506(d) of the Act, regarding renewals, whereby at the end of a permit term, the permittee is subject to scrutiny by the regulatory authority to ensure that operations will continue to be conducted in compliance with the Act. This is an important provision which would be superfluous, if the commenters suggestions were accepted, because there would be no permit renewals as the permit term would not expire until the operations involved had ceased. Such a result is contrary to accepted principles of statutory construction.

In addition to the wording of the Act, the legislative history of Section 506(b) confirms the Office's views that the exception to a five year permit term was only for a quite limited increment. The exception was inserted into the 1977 House bill, at the suggestion of the Secretary of the Interior. (See, H.R. Rep. No. 95 218, 95th Cong., 1st Sess. at 156 (1977).) The object of an exemption, said the Secretary, was to ". . . give the mine operator a permit for a time period adequate for developing a site and obtaining financing.'' The House bill (H.R. 2) was amended to provide for the exemption that was enacted at Section 506(b) of the Act. The House Committee explained the amendment as authorizing the issuance of a permit for longer than five years ". . . where necessary for the leadtime financing of the operation . . .'' T3Id.

at 63 Given the language of the Act and its legislative history and the lack of the substantiation submitted by the commenters, the Office has concluded that Section 782.17 should not be revised to allow for permit terms for underground mines that extend to the full life of the entire mine. Instead, those mines will be entitled to a permit term longer than five years only under the provisions of Sections 782.17(c) and 786.25(a), which authorize an extension only for the additional increment equal to that necessary to obtain financing of equipment and opening of the operations. The Office does not believe that this will pose an undue burden on the industry, in view of the right to successive renewal of the permit for operations, within the relevant permit areas under Sections 506(d) of the Act and 30 CFR 788.13 788.16.

SECTION 782.20 8.

Section 782.20.

A commenter objected to depositing a copy of the permit for public inspection at the same time the application is filed. The reason was that the public office for depositing of the permit was undetermined. The comment was rejected, as Section 507(b)(6) of the Act clearly implies filing for public inspection at the time of permit application and the public can be advised of the copy location by the newspaper advertisement.

SUBCHAPTER G -- SURFACE COAL MINING AND RECLAMATION OPERATIONS PERMITS AND COAL EXPLORATION PROCEDURES SYSTEMS, 30 CFR PART 783 -- UNDERGROUND MINING PERMIT APPLICATION-MINIMUM REQUIREMENTS FOR INFORMATION ON ENVIRONMENTAL RESOURCES INTRODUCTION 1. Part 783, corresponding to Part 779 for surface mining activities, establishes minimum standards under regulatory programs for the Secretary's approval of permit application requirements for information on the existing environmental resources that may be impacted by underground mining activities. With this information, the regulatory authority is to utilize information provided on mining and reclamation operations under Part 784 to determine whether the proposed activities will be conducted in compliance with Part 817 of Subchapter K.

2. The authority, basis, and purpose of Part 783 were generally discussed at 43 FR 41706 41707 (Sept. 18, 1978) which is incorporated herein by reference. Part 783 is adopted under Section 516(d) of the Act, to account for distinct differences between underground and surface mining activities. However, there are many points covered in Part 783 for which material differences do not exist. Indeed, most of the comments addressed to Part 783 raised issues similar to those which were made on Part 779. Accordingly, the disposition of comments in the preamble to Part 779 serves similarly for most of the comments to Part 783. Where changes were deemed necessary to Part 779, appropriate modifications were also made to Part 783.

3. The Office did identify a number of distinct difference for Part 779, which are discussed in detail below for individual Sections, particularly in the description of geology, vegetation, fish and wildlife resources, land use, surface topography, and prime farmland identification.

4. Some commenters raised broad objections to Part 779, with respect to the coverage of underground mining activities that pre-exist the effective date of the permanent program regulations. These commenters provided no supporting rationale for their objections, aside from a citation to Section 516(d) of the Act. The Office has not adopted this recommendation, although it has generally provided some lesser degree of regulation for existing structures.

Congress intended that both new and existing aspects of underground mining activities be regulated under the Act, as is evident from the language of Section 506(a) of the Act, requiring that permits be obtained under the permanent regulatory program for any surface coal mining operations. Those operations are, in turn, defined at Section 701(28) of the Act to include underground mining activities, without regard to whether they predate the permanent regulatory program. Similarly inclusive language is used in Section 516 (a) and (b) of the Act for underground mining activities.

Given Congress' recognition of the substantial adverse environmental affects resulting from past underground mining ((see H.R. Rep. No. 95 218, 95th Cong. 1st Sess. at 125 127 (1977)), the Office does not believe that Section 516(d) of the Act ought to be interpreted to eliminate the existing aspects of underground mining activities from scrutiny under these regulations.

See H.R. Rep. No. 95 218, supra.

T1at 93. To the contrary, the regulatory authority will need detailed information on those activities to ensure that they will be brought into compliance with the standards of the permanent regulatory program.

See 30 CFR 701.11(d) (e), 784.12, and 786.21. 5. Several commenters also raised objection to Part 779 with respect to the coverage of any areas outside surface operations and facilities of underground mine workings. The implication of these comments would be to exclude descriptions of resources on lands overlying underground mine workings, subsurface areas where underground workings will be located, and resources of lands located outside the proposed permit area. The Office did not adopt such broad exemptions The commenters offered no data establishing that the areas they sought to exclude are irrelevant for the purposes of proposed underground mining activities. To the contrary, impacts in these areas can be quite severe and were intended to be regulated by Congress.

{15065}Congress specifically recognized that underground mining activities can cause serious disruption of surface areas that are not themselves direct objects of actual mining operations, through subsidence and disruption of water and fish and wildlife resources. See Sections 516(b) (2), (9), (11), (12), and 12(c) of the Act. See also, preamble discussions to the definitions of "adjacent area'' and "affected area,'' and to Sections 817.121 817.128 of the regulations. Discharges of water from underground mine workings can have severe effects which Congress also clearly intended to be regulated.

See Sections 516(b)(9), (11) of the Act. See the preamble discussions to Sections 784.14, 817.42.

Given that recognition, the regulatory authority needs to be provided with adequate information on areas overlying underground mine workings, the strata in which those workings will be located, and adjacent areas, to determine whether the proposed activities will be conducted in compliance with the Act.

OSM has recognized, however, that descriptions of some of the types of environmental resources involved may be limited to areas affected by surface operations and facilities only or described in much less detail for other areas. This recognition is explained in the preamble discussions below for individual Sections of Parts 783 784.

700 6. Several commenters objected to proposed Parts 782, 783, and 784, asserting that requiring such detailed information would make it very difficult for applications to be filed within the two-month deadline proposed Section 771.19 after institution of a State or Federal permanent regulatory program. These commenters suggested that the deadline be delayed by allowing for subsequent submission of data until as late as 17 months after a State or Federal program is approved by the Secretary. In many respects, these comments were similar to those generally raised to the same two-month deadline specified at proposed Sections 771.13(a) and 771.19(a). Those comments were not accepted for the reasons explained in the preamble discussion above for Sections 771.13(b)(1) and 771.21(a)(1) of the final rules. For the same reasons, the Office did not accept the similar comments related to Parts 782, 783, and 784.

Further, the commenters submitted no information on this issue that showed that the burden of meeting the two-month deadline is more onerous for underground mining activities than for surface mining activities. Indeed, the only difference discussed by the commenters indicated that small underground mines involve the disturbance of substantially less surface area than do surface mining activities, a factor indicating that the small undergound operations should have even fewer problems meeting the two-month deadline.

The commenters also suggested that less restrictive permitting requirements be adopted for small underground mines. No such general requirement has been adopted, however, because no data has been identified that would establish a rational relationship between the size of an underground mine operation to the need for particular items of permit application information. The final rules' restriction of some Sections in Part 783 to only areas affected by surface operations and facilities will, however, substantially benefit small underground mines.

The commenters questioned how the applicant is to prepare its materials prior to approval of a particular permanent program in order to meet the two-month deadline for those provisions of Parts 783 784 which commit discretion to the regulatory authority as to the level of detail of some of the application information to be required. Existing operators will be able to receive substantial guidance from the staffs of both the OSM Regional Directors and the existing State regulatory authorities, based on proposed versions of State program requirements which are already under development and on the technical expertise of those staffs. In this regard, the Office intends to effect close coordination with State agencies to resolve permit application questions as early as possible.

SECTION 783.11 General requirements.

1. Section 783.11 is the underground mining activities companion to Section 779.11 for surface mining permit applications. Many of the same comments were received on these Sections and, in the final regulations, the wording of the two Sections is the same. The authority, basis, and purpose for the final rule is the same as set forth in the preamble for Section 779.11, and, in addition, Section 516 of the Act. 2. As to the comments on Section 783.11 which raised the same comments as did those to Section 779.11, the preamble to Section 779.11 serves to dispose equally of those to Section 783.11. In addition, several comments on Section 783.11 suggested that information on environmental resources be limited, for underground mines, to only land affected by surface operations and facilities.

These commenters argued, but provided no data to substantiate their position, that underground mines should not be required to provide information for the entire mine plan area, because the disturbed surface areas represent a relatively small portion of the entire mine plan area. OSM has not accepted these comments because, as explained in the preamble to Section 779.11 and in the introduction to Part 783, the pervasive nature of these environmental resources prevents such restrictions; if such information were categorically limited to only surface disturbed areas, the regulatory authorities would not be provided with sufficient information to evaluate the environmental impacts of underground mines.

3. These commenters also suggested that, to the extent potential subsidence effects need to be accounted for in the application, they can be handled completely under Section 784.20. These comments were rejected because Section 784.20 concerns only an operation and reclamation plan, and is not a description of resources that may be impacted by subsidence. The regulatory authority needs information under several Sections of Part 783 in order to determine whether the plan submitted under Section 784.20 is adequate.

SECTION 783.12 General environmental resources information.

1. Section 783.12(a) is the underground mining companion to Section 779.12(a), for which the preamble is applicable to 783.12(a), Secti ons 783.24(c) and 784.22(a) are the underground map and plan requirements that complement the narrative description required under Section 783.12(a).

Several commenters suggested changes to this Section that would require only general information on the timing of mining activities and number of acres to be disturbed during the life of the mine. They argued that this new language was necessary to deal with alleged differences of underground mining, where certain conditions may require an operator to change mining sequence and timing of subareas within the overall mine plan.

OSM has not accepted this change. 30 CFR 788.11 788.12 provides adequate opportunity for the permittee or the regulatory authority to revise a permit, where necessary to reflect any changes in the sequence and timing of mining. Second, whenever a permittee applies for a permit renewal under Section 778.13, there is an opportunity to change the descriptions that are required by Section 783.12(a). These opportunities for revisions and renewals should satisfy the commenters' concerns about Section 783.12(a).

{15066}2. Section 783.12(b) serves the same purposes as Section 779.12(b) for underground mining. Because the two Sections are so similar, most comments received on either Section were considered applicable to both Sections and discussed in the preamble to final Section 779.12(b). 3. One comment was received which applied only to Section 783.12(b). This commenter recommended that "mine plan area'' be replaced by "actual surface disturbance area,'' arguing that this would be more consistent with Section 507(b)(13) of the Act. OSM rejected this suggestion, because Sections 102 and 522(e) of the Act and the National Historic Preservation Act (NHPA) protect important cultural and historical resources from all adverse effects of underground mining activities.

In particular, subsidence from underground mining could cause harm to historical and cultural structures overlying those workings. See the technical literature listed in the preamble to Section 817.121 817.128 and the preamble discussion at the introduction to Part 783.

700 SECTION 783.13 Description of hydrology and geology. General requirements.

(1) The basis and purpose of this Section are the same as for Section 779.13. Authority for the Section is derived from Sections 102, 201, 507(b), 508(a), 515(b), and 516 (a) and (d) of the Act.

(2) Comments addressed to this Section were substantially identical to comments to Section 779.13. Therefore, the discussion of issues and their resolutions in the preamble to Section 779.13 also applies to Section 783.13.

(3) The Office has determined that the distinct differences between surface coal mining and underground coal mining do not require substantive differences between this Section and Section 779.13, because both Sections state only general principles.

(4) Minor editorial changes from the proposed rules of a nonsubstantive nature were made by the Office and are discussed in Section 779.13.

SECTION 783.14 Geology description.

1. Authority for this Section is found in Sections 102, 201, 503, 504, 506, 507(b), 508(a), 515(b), 516 and 517 of the Act. This Section would implement the requirements of the Act for geologic information necessary for applications for permits for underground mining activities.

2. The information collected pursuant to paragraph (a) of this Section will enable the regulatory authority to perform the assessment required by Sections 507(b)(11), 508(a)(13), and 510(b)(3) of the Act and to determine whether the applicant can comply with Sections 817.13 817.15, 817.41 817.58, 817.59, 817.61 817.74, 817.81 817.89, 817.91 817.93, 817.99, 817.101 817.105, 817.121 817.128, and 817.150 181 of Subchapter K. Technical literature used is the same as for Sections 779.14 and 816.121 816.128. See also, Hardaway, et al. 1978. Paragraph (b) of 783.14 allows for a waiver of the requirements of 783.14(a) pursuant to Section 507(b)(15) of the Act, when the regulatory authority already has at its disposal sufficient geological data about the proposed mine plan area to make further data collection unnecessary. 3. Most comments addressed to this Section were substantially identical to comments to Section 779.14. Therefore, the discussion of issues and their resolutions in the preamble to Section 779.14 also applies to Section 783.14. However, the Office has identified and accounted for certain distinct differences between surface mining and underground mining activities, with respect to the types and extent of geologic information needed in permit applications, leading to differences in Section 783.14. The general basis for the distinctions was discussed at 43 FR 41706 41707 (Sept. 18, 1978).

4. Several commenters requested that this Section be amended to require that the report produced under Paragraph (a) be accompanied by a summary easily understandable to the lay person. This was not done, because of the extra expense involved and the expectation that the regulatory authority will assist the interested public by explaining particularly difficult materials.

5. Several commenters suggested changes in Section 783.14 (a)(1) and (a)(2) which related to the detail of the information requested. One commenter felt that Paragraph (a)(1)(iv) should be revised to state specifically some of the parameters which should be reflected in the analyses. However, the Office feels this is covered adequately under the main text of Paragraph (a)(1), which requires a detailed description of the physical and chemical characteristics of the overburden. Another commenter suggested that proposed Paragraph (a)(2) should require information for each stratum of the overburden, on the ground that "each strata'' (sic) describes and defines what part of the overburden should be analyzed. The Office accepted this alternative and clarified the language to include "geology of the strata in those areas to be affected. . . .'' It is the intent of the Act (Section 507(b)(14)) that the permit applicant provide or compile data only on "the area to be affected''.

6. Three commenters suggested that the language of proposed Sections 783.14 (a)(1) and (b)(1) be revised to state that the work requested under these Sections be done under the supervision of a qualified geologist or registered professional engineer. The Office rejected this proposal, because these matters are adequately specified by Section 507(b)(14) of the act and 30 CFR 783.24 783.25.

7. One commenter suggested that the "acid-producing nature of a coal seam cannot be correlated with the sulfur content or the abundance of pyrite in the coal,'' citing BCR Report L 822, Assessment of Research and Development Needs and Priorities for Acid Mine Drainage Abatement U.S. Bureau of Mines, 1977. (Prepared by Bituminous Coal Research, Inc. Monroeville, Pa. Final Report on Contract No. JO5 65044. See pp. 7 29).

The Office is aware that standardized field methods for determining the acid/toxic-forming potential of coal and overburden have not yet been routinely used in all areas of the country. Research and field checking, however, have resulted in successful prediction of acid mine drainage conditions in coal and overburden materials in the central Appalachian coal fields. (Smith, et al., 1976s, pp/ 290 299; Caruccio, et al., 1977s, pp. 9 10, 30, 46). Moreover, similar work is proceeding in the west. (Hardaway, et al., 1978, pp. 7 18). Because of the severe pollution problems resulting from acid and toxic mine drainage (see Final EIS at B_III_30/31), the Office has decided that the results of these promising techniques and methods-development should be employed whenever possible, to identify potential acid and toxic-forming materials. 700 Moreover, the Office believes that the commenter miscontrued the significance of the lack of correlation between "sulfur content'' and "acid-producing'' conditions, to mean that no predictive relations have been discovered. Caruccio, T3supra, however, was able to correlate acid production to the morphology of the pyrite grain Id., at 46, and the work cited by the commenter did not consider the work by Smith or the work discussed in Hardaway.

8. Several other commenters felt that there are many situations in which the information specified in proposed Section 783.14(a)(2)(iii) would be inappropriate or unproven. The Office recognizes the distinct differences in local geology, possibly inadequate predictive methods, and high costs for conducting the tests and deleted these requirements in the final rule. The regulatory authority may, however, on a case-by-case basis, require detailed rock mechanic testing of the overburden, if the validity and utility of the method is shown for a particular area.

{15067}9. The Office does believe, however, that analyses for the clays immediately underlying the coal seams to be mined are a necessary and important tool for evaluating the adequacy of the subsidence control plan. Knowledge of the clay layer beneath the coal seam to be mined is important in order to assess the potential of the clay to absorb water and assess the resultant changes in clay plasticity. If the clay is highly plastic, then subsidence may occur due to "sag and pillar squeeze,'' (Hill and Bates, 1978, at pp. 17 26), and other displacement problems. (Allen, 1976, pp. 1 6; Gray, et al., 1974, pp. 1 3, U.S. Bureau of Mines, 1977c, pp. 113 127.) Horslev, 1949, at p. 171 provides for soil sampling methods, and USBM, 1977c, at pp. 113 127 provides prediction of bearing capacity and associated tests.

SECTION 783.15 Ground water information.

Authority for this Section is the same as for Section 779.15, and Section 516 of the Act. The basis and purpose for this Section is essentially the same as for 779.15, and the same technical literature was used. All comments addressed to this Section were the same as for Section 779.15, and the discussion and their resolution in the preamble to that Section also apply to Section 783.15. No material differences with respect to the type or scope of groundwater information required for applications for underground mining activities were identified, given the generality of the requirements.

SECTION 783.16 Surface water information.

(1) Authority for this Section is the same as for Section 779.16, and Section 516 of the Act. The basis and purpose for this Section is essentially the same as for Section 779.16 and the same technical literature was used. Most comments addressed to this Section were the same as for 779.16, and the discussion and their resolution in the preamble to that Section also apply to Section 783.16.

(2) Given the general level of the information required under Section 783.16, no distinct differences from surface mining activities were identified with respect to the types of surface water information needed in permit applications for underground mining activities. However, several comments were received which addressed proposed Section 783.16(a), suggesting that the regulation required additional specification of particular types of surface water bodies in the application. Because the regulation is intended to state a general, non-exhaustive requirement, the comments were not accepted. However, the final rule was modified to make it clear that all surface water bodies are to be identified.

SECTION 783.17 Alternative water supply information.

(1) Authority for this Section is the same as for Section 779.17 and Section 516 of the Act. The basis and purpose and technical support for Section 783.17 is essentially the same as for Section 779.17. Most comments addressed to Section 783.17 were the same as those for Section 779.17, and the discussion and resolution in the preamble to that Section also applies to Section 783.17.

(2) Given the general nature of the information required under Section 783.17, no distinct differences from surface mining activities were identified with respect to the types of information required under this Section for underground mining activities. Indeed, if anything, the effects of underground mining activities on water supply sources may be more severe. Acid and other toxic mine-drainage pollution in some regions has been greater from underground mining activities than from surface mining. H.R. Rept. No, 95 128, 95th. Cong., Inst. Sess. at 127 (1977). Subsidence from underground mining can cause major disruptions in ground and surface waters. See discussion in preamble to Section 816.121 816.128 and Final EIS at B_III 27/38.

(3) Although no distinct differences were identified, the Office did receive some comments directed solely to Section 783.17. Some commenters felt that the main text of proposed Section 783.17(a) should be deleted, leaving only Subparagraphs (1) and (2), because they believed the Act does not require the mine operator to identify alternative water supplies. The Office rejected this, because Section 508(a)(13) of the Act requires that a detailed description be submitted in the permit application, of the measures to be taken during the mining and reclamation process to assure the protection of quality and quantity of surface and ground water systems from adverse effects or to provide alternate sources of water where such protection of quantity cannot be assured. This provision is extended to underground mining activities under Section 516(d) of the Act.

700 SECTION 783.18 Climatological data.

This Section is substantially identical to the corresponding Section 779.18 and the reader is referred to the preamble for 779.18 for information concerning the technical basis and authority for these permit application requirements.

SECTION 783.19 Vegetative data.

1. Authority for this Section is found in Sections 102, 201, 501(b), 504, 508 (a)(2)(B) and (c), 508(a) (3), (4) and (5), 510(b)(2) and 516(b) (6) and (10) of the Act. This Section requires that the operator provide, when required by the regulatory authority, a map or aerial photo with existing vegetative types delineated and a narrative that describes the plant communities and certain adjacent areas. The vegetative description must contain information adequate to predict the potential for reestablishing vegetation on the disturbed area and for evaluation of vegetation important to fish and wildlife. This vegetative information will be used to determine the operator's ability to comply with 30 CFR 817.111 through 817.117.

Section 783.19(a) of the proposed regulations required that the permit application contain vegetative data for the mine plan area. This Section has been changed in Section 783.20(a) of the final regulations to require such information for the "area affected'' by surface operations and facilities and for any proposed reference area. The reason for this change is that there should be no disturbance to the vegation outside the affected area.

2. Several commenters argued that requiring vegetative data of the mine plan area exceeds the authority of Section 516(b)(6) of the Act. Since the surface area disturbed by underground mines is often only a small portion of the mine plan area, the regulations have been changed to require vegetative data on only the areas affected by surface operations and facilities of a mine plan.

The Office has determined that there are no distinctions which would require different treatment for surface and underground mining insofar as the areas now covered by this requirement. Because of the similarity to comments received on Section 779.19 and to avoid unnecessary repetition, additional response to comments can be found in the preamble for Section 779.19.

SECTION 783.20 Fish and wildlife resources information.

The purposes and requirements of Section 783.20 are the same as those for Section 779.20 except for provision for the distinct differences between surface and underground mines. The only difference between surface and underground mines identified by commenters is the size of the surface area disturbed. In order to account for this difference, Subsection 783.20(a) does not require studies to be conducted on the entire mine plan area unless fish, wildlife or related environmental values may reasonably be expected to be disturbed over the entire area. This requirement differs from Section 779.20(a) which requires the minimum area of study to be the mine plan area. All requirements of Section 783.20 are the same as those of Section 779.20, and preamble discussion for Section 779.20 is incorporated herein by reference. In addition to the statutory authorities listed for 779.20, Section 516 of the Act also applies to Section 783.20.

{15068}Comments on this Section have been discussed in response to similar comments received on Section 779.20. The preamble discussion supporting Section 779.20 is incorporated herein by reference. Several comments related solely to underground mining.

Commenters recommended that fish and wildlife studies be confined to the surface land affected by underground mining operations. Commenters said that there is a distinct difference between the size of the surface area disturbed by underground mines and surface mines. The commenters assert that the entire mine plan area may not be affected by underground mining and therefore studies should not be required over the entire area.

The Office agrees with the rationale of the commenters. Final Section 783.20 requires that studies be conducted in the mine plan area where surface facilities and operations are located and adjacent areas where fish, wildlife or related environmental values may be affected.

Section 783.20 further provides that the determination of land areas to be studied shall be made on a case-by-case basis by the regulatory authorities in consultation with appropriate agencies having fish, wildlife, or habitat management or protection responsibilities. The Office has not automatically limited the area of study to that of surface facilities because under certain circumstances the potential for subsidence and long term water discharges and other incidents of underground mining could adversely affect fish and wildlife. The regulatory authority should determine the likelihood of such potential and require the appropriate studies, accordingly.

700 SECTION 783.21 Soil resource description.

Authority for this Section is Sections 102, 201, 501, 507, 508, 510(b), 516(a), and 516(b) (4), (6), and (10) of the act. This Section will implement the requirements of the Act for soil resource information necessary for each application for a permit for underground mining activities.

Paragraph (a) requires the application to provide soil survey information on those portions of the underground mine plan area to be affected by surface operations and facilities. Paragraph (b) requires the submission of analysis, and test results when overburden materials are used as a supplement or substitute for topsoil.

As explained in the preamble discussion of the definition for soil survey in Section 701.5, it is intended that soils information be obtained in accordance with the procedures of the National Cooperative Soil Survey.

The information will be used by the regulatory authority to determine if the applicant can comply with the performance standards of Sections 817.21 through 817.25, 817.111 through 817.117, and 817.133 of subchapter K.

1. Commenters were concerned that the requirements of this Section were identical to the soil resource requirements for surface mining. Thus, the underground operator would be required to provide soils information on surface areas that would not be disturbed by mining and reclamation activities. Since the surface area disturbed will generally be a small fraction of the mine plan area of an underground mine, the Office elected to change the soil information requirements to the affected portions of the mine plan area, i.e., the area to be affected by surface operation and facilities. This change has been made because the excavation of underground mine workings will not likely affect soil, vegetation, and land uses, except where surface operations and facilities are involved. 2. The Office determined that there are no distinctions that would require different treatment for underground and surface mining in in sofar as the areas covered by this requirement are concerned. Therefore, because of the similarity of comments received on Section 779.21, additional response to comments can be found in the preamble discussion of Section 779.21. 700 SECTION 783.23 Land use information.

This Section is substantially identical to the corresponding Section of the permit application requirements for surface mining operations, Section 779.22. The reader is referred to the Preamble to Section 779.22 for information concerning the statutory authority, technical basis and alternatives considered for this Section. In addition to the authority cited in Section 779.22, this Section is based on Section 516 of the Act. The Office considers the information necessary for post-mining land use planning and decisions to be similar enough to warrant substantially the same informational requirements for both surface and underground operations. The Section 779.22 Preamble describes the requirements for submission of land use information. Those descriptions will not be repeated here except to the extent that this Section differs from Section 779.22 or such descriptions are needed to discuss comments.

The renumbering and relettering of Section 783.23 corresponds to changes made in the organization of Section 779.22. In addition, several commenters raised issues relating to specific Sections of 783.23 which were also raised in connection with Section 779.22. These issues are resolved in the preamble to Section 779.22 and revised language has been incorporated in Section 783.23 where changes were also made in Section 779.22. These issues include: (1) The requirements of a map in Sections 779.22(a)(1) and 783.23(a)(1); (2) sources for productivity and yield data in Sections 779.22(a)(2)(ii) and 783.23(a)(2)(ii); (3) availability of information on dates of past mining under Sections 779.22(b)(4) and 783.23(b)(4); and (4) availability of information on land uses preceding mining under Sections 779.22(b)(5) and 783.23(b)(5).

Several commenters suggested that Section 783.23(a) be revised to require information only for the area affected by the surface operations of an underground mine. This suggestion has been accepted as an appropriate distinction to be made between surface and underground mining operations. Language had been added to reflect that the description of condition, capability and productivity required under Section 783.23(a) shall be made with respect to that land which will be affected by the surface operations and facilities.

Some commenters suggested that the description of the capability of the land required under Section 783.23(a)(2)(i) should be required only in instances where the post-mining use is to be different from the pre-mining land use. No change was made because the Office believes that it is essential to have this information in all cases to insure that the land is restored to conditions suitable for return to the same or an approved alternative land use.

Section 783.23(a)(2)(i) has been revised to add that the capability of the land to support a variety of uses shall be described in light of the hydrology of the area affected by surface operations and facilities. The factor of site hydrology was included in this Section's surface mining counterpart, Section 779.22, but was inadvertently omitted from Section 783.23 in the proposed regulation.

One commenter suggested that this Section also require information relating to local, State and Federal land use plans and policies. This information is necessary to enable the regulatory authority to make decisions on proposed alternative land uses, partic ularly the finding of compatibility with existing land use policies and plans. Accordingly, Section 783.23(c) has been added. This Section requires that the application contain a description of existing land uses within the proposed mine plan and adjacent areas together with the land use classifications under local law, if any.

SECTION 783.24 Maps: General requirements.

This Section sets forth general requirements for maps which must be included in the permit application and is substantially identical to Section 779.24. In addition to the statutory authority cited in Section 779.24, authority for this Section is found in Section 516 of the Act.

As originally proposed, Section 783.24 was prefaced by a phrase which stated that the maps required "be prepared in accordance with Section 783.23 . . .'' Proposed Section 783.23 set forth limitations on who must prepare and certify certain listed maps, plans and cross-Sections. The reader is referred to the preamble to Section 779.24 for discussion and disposition of the public comments received on these provisions.

Several commenters raised a number of issues related to Section 779.24 which were also raised or are equally applicable to Section 783.24. Those issues are discussed and resolved in the preamble to Section 779.24 and revised language has been incorporated in Section 783.24 where changes were also made in Section 779.24. The reader may wish to review the preamble to Section 779.24 for a full description of the public comments and revisions.

As noted above, Section 783.24 is substantially identical to Section 779.24. The preamble discussion for Section 779.24 describes in detail the requirements and basis and purpose of its 12 subSections. Those descriptions and statements are equally applicable to Section 783.24 and will not be repeated here except to the extent necessary to identify differences in the requirements or to discuss public comments.

Section 783.24(c) requires identification of all areas proposed to be affected over the estimated total life of the underground mining activities together with a description of size, sequence and timing of the mining of subareas for which additional permits are anticipated. Some commenters suggested that Section 783.24(c) be revised to delete requirements dealing with identification of size, sequence and timing of mining of subareas because there are too many variables in predicting these characteristics of an underground mining operation. This Section is required by Section 508(a)(1) of the Act. Having this information, the regulatory authority is better prepared to evaluate the potential cumulative impacts of the operation, whether the operation is surface or underground mining. No change in the regulation was made as a result of those comments. Section 783.24(d) requires identification of the location of buildings within 1000 feet of the proposed permit area together with identification of the current use of such buildings. Several commenters suggested that this Section be revised to delete the requirement for identification of building use and to require identification of buildings within 1000 feet of the land affected by surface operations incident to an underground mine. Section 507(d)(13) of the Act is specific in requiring mapped location of all buildings within 1000 feet of the permit area. Moreover, the Act addresses the impact of underground mining on surface features, not just the impact of surface activities associated with underground mining. Information on building use is necessary to determine whether the building is an occupied dwelling under Section 522(e)(5) of the Act and implementing regulations.

Section 783.24(e) requires identification of surface and subsurface features within or passing through or over the proposed permit area. This Section has been revised to include a line which was inadvertently omitted in the proposed regulations. Some commenters suggested that this Section include a depth requirement for subsurface features. In order to be complete, this information should be provided if known. However, the Office believes that identification of depth in all cases would be unnecessarily burdensome. Therefore, no change has been made.

Section 783.24(h) requires identification of all public roads located in or within 100 feet of the proposed permit area. Some commenters suggested that this Section be revised to limit identification to roads within 100 feet of land areas affected by surface operations and facilities incident to underground mining operations. The Office believes this Section cannot be so limited since underground mining operations may have surface effects not confined to the area of surface operations and facilities (e.g., subsidence). Therefore, no change has been made.

Section 783.24(i) requires identification of the boundaries of public parks and locations of cultural or historic resources and known archeological sites within the mine plan and adjacent areas. Some commenters suggested that this Section be limited to the areas which will be affected by surface disturbance activities. This comment was rejected since underground mining operations may have adverse effects which are not confined to the area of surface operations and facilities.

Section 783.24(j) requires identification of public or private cemeteries or Indian burial grounds located in or within 1000 feet of the proposed permit area. Commenters suggested that this Section be limited to only that area affected by surface operations and facilities incident to an underground mine. However, as noted in the preceding discussions of comments, underground mining operations may have adverse effects which are not confined only to the smallest area of surface operations and facilities. This Section has not been changed as a result of these comments.

SECTION 783.25 Cross Sections, maps and plans.

This Section is substantially identical to its counterpart in the surface mining permit application requirements, Section 779.25. In addition to the statutory authority cited in 779.25, authority for this Section is found in Section 516 of the Act. The majority of public comments received on Section 779.25 were also applicable to and were considered in connection with Section 783.25. As a result, much of the discussion in the preamble to Section 779.25 is also applicable to Section 783.25, and revised language has been incorporated in 783.25 when changes were also made in 779.25. In addition, organizational and editorial changes which are discussed in the preamble to Section 779.25 were also made in Section 783.25. The reader is encouraged to read the preamble to Section 779.25 when reviewing Section 783.25 and its preamble.

The preamble to Section 779.25 contains a detailed description of and the basis and purpose of these mapping requirements. Those descriptions will not be repeated here except to the extent necessary to discuss public comments.

Several commenters objected to Section 783.25(c) (rider seams, overburden and underlying strata) as inappropriate for underground mining permit applications. Information on the nature of associated formations will aid in determining the potential for subsidence problems. In addition, in many cases, preparing the face of the mine involves earthmoving similar if not identical to surface mining, and the composition of these associated materials must be known by the regulatory authority. Finally, disposal of waste materials removed from the mine must be planned, and premining information on its composition is necessary to evaluate the impacts that the proposed operation will have on the surface. Therefore no change was made in the regulation.

Several commenters expressed objections to presenting information on seasonal variation in flow patterns of subsurface water. (Section 783.25(f)). Commenters felt this requirement was written for surface mining and did not consider the differences between surface and underground mining. Information on fluctuation of aquifers will be essential to evaluate the effect of mining on water resources. Factors which establish the premining hydrologic regime are important and similar to those for surface mining. In addition, underground mining may impact the surface by contributing to surface water flow. Providing information on premining subsurface flow patterns will aid the regulatory authority in evaluating potential surface effects. Therefore, while some changes in this Section's language were made for purposes of clarification, no fundamental changes in the rule's requirements were made.

{15070}Several commenters objected to providing the information required in 783.25 (f), (g), (h), and (i). Commenters were concerned about providing elevation information, and thought the requirements of these subSections should be limited to those areas affected by surface activities of underground mining. The intent of the Act with respect to underground mining is to control the surface effects of underground mining. Surface effects include, but are not limited to, surface activities of the underground operations. For example, subsidence is not a surface activity of an underground operation, but is certainly a surface effect. A complete picture of the premining condition is required as baseline information against which new mining effects can be compared. The requirements of Section 783.25 (f), (g), (h), and (i) are therefore necessary to provide this baseline information and have been retained in the regulations.

700 SECTION 783.27 Prime farmland identification for underground mines.

Section 783.27 is a new provision composed of materials transferred from Sections 785.17(c) and (d) of the proposed regulations. This change has been made because prime farmland identification procedures must be followed for all areas affected by surface coal mining and reclamation operations in order to determine which lands are covered by the more stringent requirements for prime farmland. Part 783 covers general requirements for underground mining permit applications, while Part 785 applies to limited special conditions and operations discussed therein.

The preamble to Section 779.27 applies to Section 783.27. The only difference between these Sections lies in the area covered in the permit application. For surface mines, the entire mine plan area must be investigated for prime farmland; whereas for underground mines, only the area proposed to be affected by surface operations or facilities need be investigated for the presence or prime farmland. Adequate protection for other portions of affected areas in underground mining activities is provided through subsidence control under Section 784.20.

SUBCHAPTER G -- SURFACE COAL MINING AND RECLAMATION OPERATIONS PERMITS AND COAL EXPLORATION PROCEDURES SYSTEMS, 30 CFR PART 784 -- UNDERGROUND MINING PERMIT APPLICATIONS-MINIMUM REQUIREMENTS FOR RECLAMATION AND OPERATION PLAN INTRODUCTION 1. Part 784, corresponding to Part 780 for surface mining activities, establishes minimum standards for secretarial approval of application requirements under regulatory programs for underground mining activities operations and reclamation plans. Legal authority for Part 784 and the basis and purpose is the same as for Part 780, except to the extent that differences between underground mining activities and surface mining activities have been identified, as required by Section 516 of the Act. Authority, purpose, and basis were discussed for Part 784 at 43 FR 41707 41709 (Sept. 18, 1978). Together with the information required under Part 783, the regulatory authority will use plans obtained under Part 784 to determine if the applicant will conduct proposed underground mining activities according to the requirements of Part 817 of Subchapter K.

2. Many of the types of plans required under Part 784 do not differ materially from those covered by Part 780. Most of the comments received on 784 also did not differ from those for Part 780, and the preamble discussion to Part 780 serves to explain the disposition and resolution of those comments. However, a number of distinct differences of underground mining activities were identified for Part 784, particularly with respect to plans for blasting, protection of the hydrologic balance, postmining land uses, the handling of coal processing waste, and air quality control. These differences are specifically explained in the preambles to individual Sections of Part 784.

3. As was noted in the preamble to the proposed rules, the Office determined that the limited frequency of surface blasting involved in underground mining activities justified exclusion, on a national basis, of blasting plans under Part 784. This was further confirmed by comments received for Part 780 on blasting plans for surface mining activities, indicating that the nature of blasting is such that highly-detailed information on drill hole patterns and charge weights often cannot be developed at the permit application stage and must await the commencement of actual mining operations. Because surface blasting for underground mining activities may be conducted over a significantly longer period of time than for surface mining activities, it would be even harder to develop detailed preblasting data for a blasting plan in an underground mining activities application.

However, the Office notes that the absence of a blasting plan in the application increases the importance of Section 817.65(f). Under that Section, surface blasting in close proximity to dwellings and other facilities must receive prior approval of the regulatory authority. It will, therefore, serve as the mechanism by which the operator makes prior demonstration that blasting will comply with the Act and regulatory program, in the absence of a similar check in the permit application process under Part 784.

4. As is discussed above in the preamble to Parts 780 and 783, substantial changes were made in the final rules to narrow the scope of detailed information to be required in applications for the entire mine plan and adjacent areas. However, the Office did not accept comments asserting that all requirements of Part 784 be limited either only to the proposed permit areas or to areas affected by surface operations and facilities. For further explanation of those issues, see the preambles to Section 701.5 and Parts 779 and 783.

The scope, objectives, and responsibilities for Part 784 are similar to those of Part 780. The preamble introduction to Part 780 explains changes made in the final rules for these Sections. 700 SECTION 784.11 Operation plan: General requirements.

Statutory authority for Section 784.11 is found in Sections 102, 201, 501(b), 503, 504, 507(b), 508(a), 510(b), 515(b), and 516(b) of the Act. This Section requires that each permit application contain a description of the proposed mining operations to be conducted. This information, relating to the entire mine plan area, is necessary so that the regulatory authority can gauge the cumulative impacts of the proposed operations on the environment, land use, hydrology and fish and wildlife of that area.

Section 784.11(a) requires a narrative description of the mining methods, engineering techniques and major equipment for use in the operations, and a description of the anticipated production of the mine. Section 784.11(a) existed in the proposed regulations as Section 784.12(a), "Reclamation and Operation plan: General Requirements.'' Section 784.11(b) requires a narrative description of the uses or planned uses of certain listed facilities, including construction, modification, maintenance and removal of such facilities. Section 784.11(b) did not exist in the proposed regulations relating to the content of reclamation and operations plans for underground mining (Part 784), but its counterpart in the surface mining application requirements was included in the proposed regulations as Section 780.11(b). In the final regulations, proposed Section 784.12 has been separated into requirements for the operation plan (Section 784.11) and the reclamation plan (Section 784.13) and language has been added to Section 784.11(b) to conform to Section 780.11(b). {15071}As noted in the preamble for Section 780.11(b), the information required under Section 784.11(b) is necessary to insure compliance with the performance standards as follows: (b)(1) 817.45 .46, .48, .91 .93; (b)(2) 817.21 .25, .71 .74, .100 .106; (b)(3) 817.59, .150 .176, .180; (b)(4) 817.81 .89 .91 .93; (b)(5) 817.181; and (b)(6) 817.41 .57, .95.

Section 784.11 is substantially like the corresponding Section of the regulations for surface mining operations, Section 780.11. Several commenters raised issues related to specific parts of Section 780.11 which were also raised in connection with Section 784.11. These issues are discussed and resolved in the preamble to Section 780.11 and revised language has been incorporated in 784.11 where changes were also made in 780.11. These issues include: (1) objection to the requirement for tonnage information in 780.11(a) and 784.11(a); (2) addition of language in 780.11(b) and 784.11(b) regarding removal of equipment unless it is to be retained as part of the proposed post-mining land use; and (3) a suggested requirement that an applicant disturb only as much land as necessary for the conduct of mining and reclamation operations.

SECTION 784.12 Operation plan: Existing structures.

This is a new Section in the final regulations which set forth information to be included in the operation plan for underground mining permit applications. The statutory authority for this Section and its basis and purpose are discussed in the preamble to 30 C.F.R. 701.11(e). Comments received with respect to the regulations of existing structures and OSM responses to them are also discussed in the preamble to 30 C.F.R. 701.11(e). OSM considered whether distinct differences exist between surface and underground mines with respect to regulation of existing structures.

Although the types of existing structures may differ for surface and underground mines, OSM determined that no operational differences between surface and underground mines merited a distinction in the conceptual regulatory approach to existing structures. Therefore, the demonstrations to be made by permit applicants in permits for surface or underground mines are the same and the findings to be made by the regulatory authority with respect to existing structures are also the same for surface or underground mines.

SECTION 784.13 Reclamation plan: General requirements.

Authority for this Section is found in Sections 102, 201, 501, 503, 507, 515 and 516 of the Act. Section 784.13 is intended to provide information in the degree of detail necessary to enable the regulatory authority to determine whether the proposed mining and reclamation operation will be conducted in compliance with all applicable requirements of Sections 515 and 516 of the Act and the environmental performance standards of these regulations. This purpose was previously stated in a separate introductory Section numbered 784.11, but now has been moved to subSection (a) of this Section. Section 784.13(a) is intended to be a general introduction to all of the regulations following 784.13 which relate to the content of the reclamation plan. The remainder of 784.11 has been deleted because it was either repetitive of other regulations or unnecessary, and proposed Section 784.12 has been numbered 784.13. Proposed Section 784.12(a) has been moved to 784.11(a); comments on that Section are discussed in the preamble to Section 784.11. Each of the nine paragraphs under Section 784.13(b) is described in summary fashion in the preamble to Section 780.18(b), the surface mining activities counterpart of Section 784.13. Those descriptions will not be repeated here except to the extent necessary to discuss comments.

Several commenters raised issues relating to specific Sections of 784.13 which were also raised in connection with 780.18. These issues are discussed and resolved in the preamble to 780.18 and revised language has been incorporated in 784.13 where changes were also made in 780.18. These issues includes: (1) changes in language of Sections 780.18(b)(5)(ii) and (iii) and 784.13(b)(5)(ii) and (iii); (2) objection to the requirement for supporting calculations in 780.18(b)(2); and 784.13(b)(2); and (3) objection to the requirement for a description of steps to be taken to comply with other laws under Sections 780.18(b)(9) and 784.13(b)(9).

As originally proposed, a reclamation plan under this Section would have required information relating to lands within the mine plan area. Section 784.13 now requires reclamation plan information only for those lands within the permit area. This change was made since all of the reclamation activities under Section 784.13 which will be described in the plan will take place within the permit area.

A few commenters suggested that the applicant be required to demonstrate in the reclamation and operations plan that the amount of surface lands affected by the operation was the minimum necessary for the conduct of mining and reclamation. This suggestion prompted consideration of the alternative of adding a Section requiring the applicant to make such a showing.

While the regulations do not directly address the problem of efficient mine spoil movement, the rules covering the several aspects of a mining operation will give regulatory agencies authority and direction in assuring conservative spoil movement. Therefore, no additional requirements were placed in the regulations.

Several commenters objected to the requirement for a "detailed'' timetable under 784.13(b)(1). It was felt that detailed timetables for 20 to 40 years into the future for an underground mine would be unrealistic. The following alternatives were therefore considered: (1) No change; (2) change "detailed'' to "estimated'' in 784.13(b)(1); (3) require an estimated timetable for the mine plan area and detailed timetable for the permit area. However, no change in the regulation was made since each five year phase of an underground mining operation must be separately permitted (Section 782.17). Thus, unless an exception to the five year limit is obtained under Section 786.25(a), the timetable for completion specified under 784.13(b)(1) need only cover areas affected within a five year period.

A few commenters suggested modification of the requirements in 784.13(b)(6) for a description of measures to be used to maximize the use and conservation of the coal resources as required in 817.59. These commenters suggested that the language be more consistent with the language of the Act. The operator is obligated to maximize coal recovery to the extent technologically possible and economically feasible (Section 817.59), but also to design his mine layout to minimize surface damage caused by subsidence (Sections 817.121 817.126). While not wholly adopting these comments, the Office has made changes in 784.13(b)(6) to more closely reflect the language of the Act and the requirements of 817.59.

{15072}A few commenters suggested that a plan for backfilling, soil stabilization, compacting and grading required under Section 784.13(b)(3) be filed only "where appropriate'' and that maps showing final soil surface configuration be required only for "surface or access facilities of the permit area.'' The Office believes that a plan for mine spoil handling will always be appropriate, though its complexity may vary with the size of an underground operation. For an adequate evaluation of proposed mine spoil handling, a map showing the final configuration of the soil surface on disturbed areas should show the relationship of this surface to that of the remainder of the permit area. Therefore, no change has been made in Section 784.13(b)(3).

A few commenters suggested revising 784.13(b)(4) to clarify that the topsoil handling plan be limited to the area affected by underground mining. While not entirely adopting this comment, the Office has revised 784.13(b)(4) to clarify that the plan must be related to the underground mining performance standards for topsoil handling. These cover only the areas affected by surface operations and facilities.

A few commenters suggested that, in Section 784.13(b)(8), requirements for "appropriate cross-Sections'' be deleted and that only mine openings and bore holes which enter the mine working be considered in the description of sealing measures. Since cross-Sections will be required only as appropriate, the Office has determined that the suggested change is not necessary. It is assumed that all mine openings lead to mine workings. Provision for sealing bore holes should be made whether or not holes enter mine workings. Therefore, no changes were made as a result of these comments.

Section 784.12(i) of the proposed regulations would have required a description of how the mining equipment and facilities would be removed from the mining area. Commenters suggested that this requirement is unnecessary since the performance standards already require removal of equipment. The Office agrees and has deleted this requirement. Readers are referred to the appropriate performance standard (817.132).

SECTION 784.14 Protection of hydrologic balance.

1. The authority for this Section is the same as for Section 780.21 and, in addition, Section 516 of the Act. In most respects, this Section is the same as Section 780.21 and, therefore, the statement of basis and purpose and technical literature relied upon at the preamble to that Section also applies to Section 784.14. Most of the comments addressed to proposed Section 784.13 (final rules as Section 784.14) were similar to those for Section 780.21, and the disposition of those comments at the preamble to Section 780.21 is also applicable for Section 784.14.

2. Some distinct differences between surface mining activities and underground mining activities were identi fied which warranted differences between Sections 780.21 and 784.14. First, as it was determined that restoration of approximate recharge capacity is not an appropriate performance standard for underground mining activities, Section 784.14 contains no provision to correspond to Section 780.21(b)(3).

3. The most important difference identified was the need for special provisions relating to the prevention and control of water discharges from underground mine workings to surface waters. Section 784.14(a)(4) requires that the application provide for the location of entries into underground workings to be designed to meet 30 CFR 817.50. For new mines in acidic or iron-bearing coal seams, this will require mine entry and access designs to preclude any gravity discharge from underground workings during and after the operations. See Section 516(b)(12) of the Act. For other mines, prevention of discharges by sealing or long-term treatment, if necessary to meet effluent limitations, is to be shown on the application.

The specific details of seals and downslope barriers are to be shown under Section 784.14(d). This information will be used to determine if the applicant will comply with 30 CFR 817.13 817.15, 817.50, and 817.131 817.132. Particularly important for the regulatory authority will be sufficient soils, geologic, and hydrologic data to assess whether mine entries can be reasonably expected to hold seals for the long-term period after cessation of mining, in view of historic experience with the difficulties in maintaining those seals without leakage or collapse. (See: Doyle, W. S., 1967. Mine sealing, in deep coal mining_waste disposal technology, Noyes Data Corp., Park Ridge, N.J., p. 17; H.R. Rep. No. 95 218, 95th Cong., 1st Sess., at 127 (1977); Commonwealth v. Barnes and Tucker Co., 455 Pa 392, 319 A2d 871 (1974), T3affd. after remand, 472 Pa 115, 371 A2d 461 (1977); U.S. Environmental Protection Agency. 1973b, Processes, procedures, and methods to control pollution from mining activities. (Prepared by Skelly and Loy, Harrisburg, Pa.) p. 223; U.S. Federal Water Quality Administration, 1970. New mine sealing techniques for water pollution abatement. (Prepared by Halliburton Co., Duncan, Okla.) U.S. Department of the Interior, FWQA program No. 14010 DMO report, pp. 9 19.) If these plans cannot establish that all drainage will be held within the underground workings, then the applicant would be required to demonstrate that any discharges to surface waters will meet both effluent limitations and water quality standards, without treatment, or to propose adequate plans for the use of necessary treatment facilities to ensure that mine drainage is discharged out of the underground working in accordance with Sections 817.41 817.42 and 817.50 of Subchapter K. (See H.R. Rep. No. 95 218, 95th Cong., 1st Sess., at 127 (1977); Commonwealth v. Barnes and Tucker Co., 455 Pa 392, 319 A2d 871 (1974), affd. after remand, 472 Pa 115, 371 A2d 461 (1977).

4. Technical literature supporting the special mine sealing/drainage treatment requirements of Sections 784.14(a)(4) and (d) and 817.13 817.15, and 817.50 for underground mines is the literature cited above, and: (a). Ciolkosz, E. J., Kardos, L. T., and Beers, W. F., 1973. Soil as a median for the renovation of acid mine drainage. The Pennsylvania State University Institute for Research on Land and Water Resources, final report on project A 027 PA for U.S. Office of Water Resources Research, 135 pp.

(b). Garrett, W. S., and Pitt, L. T. C., 1961. Design and construction of underground bulkheads and water barriers, in 7th Commonwealth Mining and Metallurgical Congress, Johannesburg, South Africa. Transactions, Vol. 3, pp. 1283 1301.

I11(c). Moebs, N. N., and Krickovic, Stephen, 1970. Air-sealing coal mines to reduce water pollution. U.S. Bureau of Mines Report of Investigations 7354, 33 pp.

700 (d). Penrose, R. G., Jr., and Holubec, Igor, 1973. Laboratory study of self-sealing limestone plugs for mine openings. (Prepared by NUS Corp. and D'Appolonia Consulting Engineers, Inc., Pittsburgh, Pa.) U.S. Environmental Protection Agency Report EPA 670/2 73 081. 217 pp. (Available from U.S. Department of Commerce, NTIS PB 228 586, 217 pp.).

(e). Robins, J. D., and Hutchins, J. C., 1975, Criteria for developing pollution abatement programs for inactive and abandoned mine sites. (Prepared by Skelly and Loy, Harrisburg, Pa.) U.S. Environmental Protection Agency Report, EPA 440/9 75 008, 461 pp., various paging. (Available from U.S. Department of Commerce, NTIS PB 258 279, 461 pp., various pagings.) 5. Due to other changes in Part 784, Section 784.13 of the proposed rules has been moved to Section 784.14 in the final rules. Editorial changes have been made to more closely reflect the applicability of the substance of 784.14 to underground mining activities.

{15073}6. Three commenters suggested requesting data describing the maximum potential hydrostatic head to all mine seals and along the outcrop barriers which are to ensure stability under anticipated hydraulic heads developed while promoting mine inundation. After evaluation of this proposal OSM decided this language is already implied in the language of 784.14(d).

SECTION 784.15 Reclamation plan: Postmining land uses.

Statutory authority for this Section is found in Sections 102, 201, 501(b), 503, 504, 508(a), 515(b), and 516 of the Act. Section 784.15 sets forth the criteria for use in preparing the postmining land use analysis and plan. The analysis required by this Section should discuss and compare the information required to be submitted under other Sections of the regulations (see Section 783.23, Land use information, and Section 784.13, Reclamation plan: General requirements, for example), and result in a complete evaluation of the net impact which the proposed mining and reclamation (including establishment of the proposed postmining land use) will have upon the usefulness of the area affected.

Section 784.15 requires that each plan contain a description of the use to which the land affected by surface operations, or facilities within the permit area, will be put following reclamation. This description must include a discussion of the utility and capacity of the reclaimed land to support a variety of alternative uses and a discussion of the relationship of the proposed postmining use to existing land use plans and policies. All reclamation plans must discuss how the proposed use is to be achieved and what support activities may be needed to achieve the use (Section 784.15(a)(1)), as well as the consideration given to making the proposed underground mining activities consistent with surface owner plans and the applicable State and local land use plan and program. (Section 784.15(a)(3)). Where the premining and proposed postmining uses are different, Section 784.15(a)(2) requires discussion and analysis of all of the information and criteria which will be used by the regulatory authority in approving an alternative postmining land use under Section 817.133. Section 784.15(b) requires that the applicant submit a copy of the comments on the proposed use by the legal or equitable owner of record of the surface, and by State and local governmental units which would have to initiate, implement, approve, or authorize the proposed use. If the proposed postmining land use owner is to be different (e.g., the existing surface owner is the operator and the title is proposed to be transferred following the mining operation), a copy of comments should be submitted which reflects this change in ownership.

As originally proposed, Section 784.15 was numbered Section 784.14 and consisted of Paragraphs (a), (b), and (c). This Section has been renumbered and proposed Section 784.14(b) has been included within 784.15(a). Proposed Paragraph (c) has been renumbered Section 784.15(b). Also as originally proposed, Section 784.15(a) would have required information on and discussion of the proposed use with respect to land areas affected by surface operations or facilities, and Section 784.15(b) would have required a copy of the comments of the surface owner of the proposed permit area. Section 784.15(a) now requires a description of the proposed use with respect to the land to be affected within the proposed permit area (Section 784.15(a), introductory paragraph). Similarly, Section 784.15(b) was revised to require a copy of the comments of the surface owner of surface land areas within the proposed permit area which may be affected by surface operations or facilities. These changes were made to reflect the differences between surface and underground mining (i.e., surface effects of underground mining), and to limit the scope of the information required to the proposed permit area, the area where establishment of the postmining land use will take place.

1. Several commenters suggested that Section 784.15 should be revised to exempt surface effects of underground mines which pre-exist the effective date of the regulations. Section 784.15 is an informational requirement designed to aid the regulatory authority in judging whether the applicant will be able to comply with Section 817.133. The Office believes the suggested change is unwarranted since the Act does not authorize exceptions from reclamation plan requirements for underground mining operations. Thus, no change was made as a result of these comments.

2. Several commenters suggested that Section 784.15(a) be revised to read, "Each plan shall contain a detailed description of the proposed use of land areas affected by surface facilities of underground mines following reclamation,'' with the remainder of Section 784.15 deleted. The Office agrees that distinct differences do exist between underground and surface mining. (See discussions above regarding revisions in Section 784.15(a)). However, planning for postmining uses in surface and underground operations should be similar although the area affected may be considerably smaller for underground mines. Although the area affected may be small, structures of major sizes may occupy this area (e.g., coal preparation plant, wash house, maintenance buildings) and, therefore, the postmining use or demolition and removal plans must be set forth clearly. Because of this potential size difference, the requirement for a management plan where the proposed use is for range or grazingland has been deleted. All other requirements were retained because the Office believes this information is necessary to enable the regulatory authority to make decisions on proposed postmining land use.

3. Some commenters suggested that this Section should reflect the right of the surface owner to have final authority in approving postmining land uses. As a result of these comments, the Office considered adding a requirement for surface owner approval. The Act does not permit surface owners to have a final approval or veto over postmining land uses. However, as mandated by the Act, surface owners must be given an opportunity to comment on the proposed use and those comments must be included within the permit application. (See Section 508(a)(3) of the Act; Section 784.15(b) of the regulations).

SECTION 784.16 Reclamation Plan: Ponds, impoundments, banks, dams, and embankments.

The authority for this Section is found in Sections 516(b)(4), 516(b)(5), 516(b)(7) of the Act, in addition to all Sections cited in the preamble discussion for Section 780.25. All public comments discussed in the portion of the preamble relating to Section 780.25 were considered, and similarly disposed of, with respect to Section 784.16, because there is no reason for a difference in the reclamation plan requirements between structures associated with surface mining or the surface effects of underground mining. The basis, purpose and analysis of issues relating to this Section can be found above in the preamble discussion of Section 780.25.

700 SECTION 784.17 Protection of public parks and historic places.

Statutory authority for this Section is found in Sections 102, 201, 501(b) 503, 504, 507(b), 508(a), 515(b), 516(b) and 522(e) of the Act. The basis and purpose of this Section are identical to those of Section 780.13, except that Section 784.17 applies to underground mining operations which have the potential of adversely affecting a public park or place included on or eligible for inclusion on the National Register of Historic places. As noted in the preamble to Section 780.13, this Section is intended to provide the regulatory authority with sufficient information to accomplish the procedures of Section 761.12(f). The comment which is discussed in the preamble to Section 780.31, together with the Office's resolution of the issue raised by that comment is also applicable to this Section. The Office has received comments on 784.17 which were also considered in connection with Section 780.31. The following discussion and resolution of each of the comments is equally applicable to Section 780.31.

{15074}1. Several commenters suggested that Section 784.17 be revised to require a description of measures to "minimize or control'' rather than "minimize or prevent.'' The Office considered and rejected this comment. It is the intent of the Act to prevent, to the maximum extent possible, any adverse impacts on public parks and historic places (Section 522(e); see also the preamble to Section 761.12(f) of the regulations).

2. Several commenters suggested that Section 784.17 be revised to exclude from its application those instances where an applicant has subsidence liability relief as evidenced by a legal severance deed of record. A recorded deed of this type may, together with other property rights, constitute a valid existing right. The determination of whether an applicant has a valid existing right is made by the regulatory authority pursuant to Section 761.12 on the basis of a complete permit application. The Office has no reasonable basis upon which to provide for detailed exemptions under 784.17 which are only resolvable on a case-by-case basis. SECTION 784.18 Relocation or use of public roads.

The authority for this Section includes Section 516 of the Act, in addition to those Sections cited as authority for Section 780.33 in the preamble discussion of that Section. The reader is referred to the preamble discussion of Section 780.33 for a discussion of the basis and purposes of this Section and issues also considered in the context of this Section.

Section 784.18 provides for the information necessary for the regulatory authority to ensure that the rights of present users and nearby landowners affected are protected where there is public road relocation or mining activity within 100 feet of public roads. This Section appeared as Section 784.17 in the proposed rules published September 18, 1978.

Paragraph (a) is designed to aid the regulatory authority in determining if the proposed operation meets the requirements of Section 522(e)(4) of the Act and Section 761.11(d) of the regulations.

Paragraph (b) requires the submission of a narrative description with supporting material to establish, among other things, how the permit applicant plans to ensure the protection of the interests of the public in the construction of a new road or the relocation of an existing road in accordance with Section 761.12(d) of the regulations.

The Office received the following comments on this Section, in addition to those discussed in the preamble portion relating to 780.13: 1. Several commenters suggested deletion of this entire Section, while one commenter recommended that paragraph (b) be deleted. These changes were suggested because of the distinct differences the commenters perceived between underground and surface mining. The changes were not made, however, because the procedures identified in Section 784.18 are required to implement Section 761.112(d) of the regulations and Section 522(e)(4) of the Act, which apply equally to surface and underground mining. Although it may be rare for underground mining to require a road to be moved, it is possible (for example, to provide an adequate face up area, or to prevent material damage from subsidence during longwall mining). Another rationale given for the proposed deletion of Paragraph (b) was that the relocation of public roads is already in the hands of a public-roads agency, and the regulatory authority should not get involved. However, Section 522(e)(4) of the Act clearly contemplates that the regulatory authority must approve any relocation. OSM believes the necessary information is best gathered by the regulatory authority in the context of the permit application.

2. One commenter argued for requiring the permittee to post a substantial bond to cover damage for faulty construction of a relocated public road. This recommended language was not adopted because the bond will cover the road under Subchapter J, if the road is in the permit area and if it is outside the permit area, the necessary assurances are best structured for the individual situation by cooperation between the regulatory authority and the agency responsible for roads. Bonds are not prohibited by these rules, but are simply not required in every case. 3. Several commenters suggested that the words "government maintained'' replace the word "public'' in Section 784.18. These suggestions were rejected by OSM in favor of the language of the Act, Section 522(e)(4), which specifically provides for protecting the "interest of the public'' in relation to relocation or use of "any public road''. As defined in these rules, a "public road'' is any right-of-way used for public passage, no matter who maintains it, in addition to traditional concepts of government-owned or government-maintained thoroughfares. Adoption of the narrower concept of "government maintained'' would reduce the protection afforded the public-transportation network, and might lead to abuse if a locality simply were to allow an operator to agree to maintain a road the operator wanted to mine near. This would subvert the intention of Section 522(e)(4) of the Act.

700 SECTION 784.19 Underground development waste.

The authority for the this Section is Sections 102, 201, 501, 503, 507, 508, 510 and 516 of the Act. This Section establishes the permit requirements for the surface disposal of mine wastes in areas other than underground workings in accordance with Section 516(b)(4) of the Act.

Commenters suggested deletion of the cross-reference to Sections 817.121 through 817.126 because those Sections set forth the performance standards for subsidence control and do not relate to the surface disposal of underground development waste. The Office concurred with the comments and deleted these cross-references.

Cross-references to 30 CFR 817.71 817.74 was added to enable correlation between the permit requirements and the performance standards for the proper disposal of excess spoil and, in this case, disposal of underground development rock.

One commenter suggested that additional clarification was necessary to insure that readers would understand this Section only includes the surface disposal of waste. The Office has provided additional language to insure the stability of the deposited waste in accordance with Section 515(b)(4) of the Act by referencing to 30 CFR 780.35. This cross-reference should eliminate any confusion.

SECTION 784.20 Subsidence control plan.

Authority for this Section is found in Sections 102, 201(c), 501(b), 503(a), 405, 507(b), 508(a), 510(b), 515(b), and 516 of the Act.

Section 784.20 sets out minimum requirements for subsidence control plans in permit applications for underground mining activities.

This Section appeared as Section 784.19 in the proposed rules of September 18, 1978.

The subsidence control plan must show that the operation will be conducted in compliance with the requirements of Sections 817.121, 817.122, 817.124, and 817.126 of Subchapter K. The application must contain an analysis of whether or not there are structures or renewable resource lands which would be damaged if subsidence, planned or unplanned, should occur. If there are such structures or lands, then the application must also contain: {15075}(a) A description of the mining method; (b) A description of measures taken to prevent subsidence causing material damage; (c) A description of measures taken to mitigate damage; and (d) A description of measures taken to determine material damage, including monitoring proposed.

The goals of Section 784.20 are to prevent material damage to the land surface (Section 516(b) of the Act); prevent damage to other features protected by the Act; insure that operators adopt the most technologically and economically feasible measures to control subsidence (Sections 102; 501(b); 516(b)(1) of the Act); and mitigate the adverse effects of subsidence, if it occurs. To fully understand this Section, the reader should review the definition of "renewable resource lands'' in Section 701.5 and the subsidence performance standards in Sections 817.121 817.126, together with their preamble discussions. Full bibliographic information for technical literature used in the preparation of this Section is found in the preamble discussion for 817.121 817.126 Section 784.20 explains the requirements necessary to determine if a subsidence control plan is required. A premining survey is described which will identify whether there are any structures or renewable resource lands in the permit area, and if they could suffer material damage from subsidence. If such structures or renewable resource lands are not present, the operator need not submit a subsidence control plan. On the other hand, if structures or renewable resource lands exist which could suffer material damage, a subsidence control plan is required under Section 784.20(a) (d). OSM believes this will justifiably reduce the burden on the operator in those instances where material damage will not occur or where structures or renewable resource lands do not exist, while still providing adequate information to assure compliance with Section 817.124 In writing these regulations, OSM considered numerous suggested alternatives.

A suggestion was made to define "material damage.'' OSM believes that it is not necessary to define the term "material damage'' in reference to subsidence. Instead, it is left to each regulatory authority or regulatory program to define and use the term in a manner appropriate for subsidence problems in its jurisdiction.

Some commenters suggested that the term "mining plan'' be substituted for "subsidence control plan.'' This suggestion was rejected because the term "mining plan'' does not properly describe the measures required to prevent subsidence causing material damage. Some such measures may include additional support to surface structures, actions wholly independent of coal recovery and reclamation activities.

Several commenters noted that no currently recognized standards exist for subsidence control plans. The term "standards'' does not mean strict, well-defined and universally accepted requirements, such as building or fire codes. It was only intended as broad general requirements to ensure high quality design which will prevent material damage as required by Section 516(b)(1) of the Act. Adequate standards presently exist for all of the elements which make up the subsidence control plan.

700 As proposed on September 18, 1978, this Section would have required a plan prepared by a "certified registered professional mining engineer.'' Several commenters noted that certification for professional engineers varies from State to State. In the final rules, OSM has taken the position not to restrict the design of subsidence control plans to narrow specialty fields, but to allow the operator to select appropriately qualified personnel to complete these plans. Consequently, Section 784.20(a) has been rewritten to reflect this position.

Several commenters have proposed that "planned subsidence'' be excepted from the requirements of a subsidence control plan. This proposal has not been adopted. Planned subsidence is produced by longwall mining and by second mining (i.e., pulling pillars) if pillars are completely extracted. In longwall mining, subsidence is almost complete by the time mining is finished. Generally, structures may be erected over most of the longwall panel within a short period after mining without fear of sudden and unexpected subsidence. In contrast, subsidence has unexpectedly occurred long periods after room and pillar mining (Myers A. R., pp. V 11, VII 2, VII 5, 1975, GAI Consultants, 1977). However, longwall and second mining cause extensive subsidence ground movement due to the occurrance of caving behind the face. Extensive damage to structures from longwall mining was seen in Europe and is described in mining literature (National Coal Board, Subsidence Engineers Handbook, p. 102, 1975, Vol. 1, p. 22, Vol. 2, p. 2, 1973). "Planned Subsidence'' can be as damaging to existing structures and resources as unexpected subsidence.

The regulatory authority must know what measures will be taken to mitigate the adverse effects of subsidence, should there be any. In addition, parts of Section 516 of the Act other than Section 516(b)(1) apply to longwall and second mining independently. Thus, in longwall mining, offsite areas must be protected (Section 516(b)(7) of the Act), disturbance to hydrologic balance minimized (Section 516(b)(9) of the Act), disturbance of wildlife minimized (Section 516(b)(11) of the Act), and inhabitants of urbanized areas protected from imminent danger (516(c) of the Act). To fulfill the requirements of the Act and assure the rights of surface landowners (Section 102(b) of the Act), the regulatory authority must limit and control the damage caused by longwall mining, and a subsidence control plan is required. While OSM expects that most planned and controlled subsidence will, by definition, not involve measures of the type listed in Section 784.20(b)(2), such measures may be necessary in some areas of the mine. In accordance with the explicit mandate of Section 516(b)(1) of the Act, a difference must be drawn, in the case of true planned and controlled subsidence, between measures to prevent material damage and plans to mitigate the effects of such damage.

Section 784.20, as it appeared in the proposed regulations, has been substantially modified based both on the public comments received and on OSM review.

This Section as it appears in the final regulations focuses on measures to be taken to prevent subsidence from causing material damage. This may be accomplished in any combination of planned subsidence measures to be taken within the mine, or measures to be conducted on the surface. Within each of these categories specific measures of prevention are provided as examples and are not to be construed as either requirements or as limiting the operator from employing other technologically feasible measures. These measures are identified for the benefit of the operator and as a means for OSM to better explain specific prevention measures which may be employed. OSM believes that the modified regulations provide the operator with significantly greater flexibility in preventing subsidence damage resulting from mining.

A requirement to provide data on artificial supports and the bearing strength of coal pillars was in the proposed rules, but has been deleted in the final version. Artificial supports may in some instances reduce subsidence up to 50 percent (Stowing of Material, Brauner, 1970, p. 33). However, other than backfilling after mining (used by U.S. Bureau of Mines), stowing is not practiced in the U.S. and rarely in Europe (USBM 10, 1976a, pp. 8 22) because of the expense involved. Requiring the bearing strength to be calculated without also calculating the loads to be placed on the pillars adds no protection against subsidence and would put an unnecessary burden on the operator.

{15076}A comment was received suggesting the deletion of proposed Section 784.19(c)(5), which would have automatically required backfilling. Since backfilling is an established anti-subsidence measure which should be encouraged (USBM 1976a, pp. 8 22; Brauner 1973, p. 33; Cochran 1971, p. 15; Doyle 1976, p. 312; Candeub et al., 1973, p. 4.) OSM has chosen to retain "backfilling'' as an alternative method of reducing the likelihood of subsidence damage. However, OSM does not believe that backfilling is the most economically and technologically feasible method in all cases, and accordingly will not require it.

Section 784.19(c) of the proposed regulations has been deleted because the kinds of subsurface geological and other data it would have required would have duplicated information required in Section 783.14. OSM anticipates that any additional information necessary will be submitted in response to Section 784.20(b).

The emphasis of Section 784.20(c) as it appears in the final rules is on mitigation measures to reduce the effects and extent of material damage resulting from subsidence. The mitigation measures a mine operator may choose to employ consist of any one or a combination of: (1) Restoration measures; (2) replacement measures; (3) operator purchase of features; or (4) operator purchase of insurance payable to the surface owner. Any one or combination of these will ensure that the operator is incompliance with 816.124, and OSM feels that the expanded scope of prevention and mitigation measures provides flexibility for the operator.

Some commenters suggested that mitigating measures to repair subsidence damage be included in the subsidence control plan. OSM felt that the inclusion of mitigation measures among those required to prevent material damage would provide appropriate protection to land owners and resources. Therefore, mitigating measures planned by the operator must now be described in the subsidence control plan.

A requirement for the operator to assume financial responsibility for subsidence damage was suggested. Insurance policies provided by the operator, such as required in Section 507(f) of the Act and constituting an alternative under Section 817.124 of the regulations, must be described in the subsidence plan, when they are used. (See the preamble discussion for Section 817.124 for a full discussion of the operator's financial responsibility). Section 784.20(d) has been extensively modified from the proposed regulations version. Instead of requiring a subsidence monitoring plan for each permit, the regulations now require a description of measures to be taken to determine the degree of material damage in those instances where structures and/or renewable resource lands exist and may suffer material damage from subsidence. These measures include, but are not limited to, presubsidence surveys and monitoring.

700 Several commenters suggested that the monitoring requirements of proposed Section 784.19 should be deleted because a universal requirement to install monuments would have adverse impacts on mining costs and the environment. It was also suggested that monitoring should not be required where no danger of material damage existed, such as in mountainous, unimproved and uninhabited areas in some of the western States. OSM has seen no studies or other evidence that there are objective conditions which would assure in every case that no subsidence could occur. Accordingly, no regulation has been presented to exempt any mines from this Section entirely. However, if a premining survey of the permit area shows no structures or resources which would be damaged if subsidence were to occur, then further requirements of the subsidence control plan, including monitoring, are deleted. If, on the other hand, damage to the structures or resources would result from subsidence, monitoring or other requirements are to be adopted for their protection, as appropriate. The regulations were rewritten to allow for the adaptation of monitoring requirements to each individual mining situation and to eliminate unnecessary monitoring.

A suggestion to adopt monitoring techniques recommended by a USBM (Panek, p. 321, 1970) was rejected because many of the recommended techniques are used only for research, not commercial mining, and because OSM does not wish to be so narrow as to restrict the operator from using the latest technological advances in subsidence monitoring.

A commenter suggested that the Office require the operator to send all subsidence data to the U.S. Bureau of Mines. Subsidence monitoring requirements have been deleted, except where the survey shows structures or renewable resource lands exist, and that subsidence could cause material damage or diminution of value or foreseeable use of the land, or if the regulatory authority determines that such damage or diminution could occur. Also, USBM has not indicated to OSM that it is prepared to receive and analyze, data, much of which would be of questionable use for research purposes. OSM does not want to impose any unnecessary reporting requirements on operators, and accordingly has not adopted this suggestion. I11One commenter suggested that proprietary information in permit applications should not be made available for public inspection. No change in the proposed rules was made in response to this comment. Section 786.15 of these rules protects the confidentiality of trade secrets or privileged financial information contained in permit applications in accordance with the requirements of the Act.

One commenter suggested that OSM develop guidance on subsidence control technology and procedures. OSM feels that extensive literature is available on subsidence as demonstrated in the preamble discussion of Section 817.121 817.126. In addition, the Office does not want to imply limitation on the use of new state-of-the-art technology as it is developed. While OSM may conduct or sponsor research in this area in the future, no guidance has been included in these regulations at this stage. SECTION 784.21 Fish and wildlife plans.

This Section of regulations is essentially the same as Section 780.16. All authorities, descriptions of purpose, requirements, comments, recommendations, and rationale discussed in the preamble for Section 780.16 are applicable to Section 784.21 and are incorporated herein by reference. In addition to authorities listed for Section 780.16, Section 516 of the Act is also authority for Section 784.21.

The only difference between Sections 780.16 and 784.21 is in requirements for the minimum area to be covered by a fish and wildlife plan. In order to account for the distinct difference between surface and underground mining, Section 784.21 does not require a fish and wildlife plan to cover the entire mine plan area unless fish, wildlife, or related environmental values may reasonably be expected to be affected over the entire area. This recognizes the fact that much of the surface area of an underground mine plan area will not ordinarily be disturbed and, hence, impacts on fish and wildlife may be minimal. This requirement differs from Section 780.16 which requires a plan to cover all of the proposed mine plan area as a minimum.

(1). Commenters questioned appropriateness of requirements pertaining to enhancement of fish, wildlife and related environmental values in Section 784.21(a) (1) and (2).

The Office has determined that requirements for enhancement of fish, wildlife and related environmental values where practicable in Section 784.21(a)(1) and requirements of Section 784.21(a)(2), placing the burden on the applicant to establish if enhancement is not practicable, is in accordance with Sections 510(a), 515(b)(24), and Sections 516(b) (10) and (11) of the Act. The Office's rationale for this determination is as stated in the preamble for Section 780.16.

{15077}2. Three issues were raised by comments on Section 784.21 which were not addressed in the preamble for Section 780.16. Commenters recommended the use of best technology currently available be required only when practical.

The commenters' rationale for this recommendation is that small surface areas are disturbed in underground mining and the requirements of Section 784.11 784.15 are sufficient to assure the general habitat will be retained both during and after mining.

Plans prepared pursuant to Sections 784.11 784.15 are not specifically designed for protection of fish and wildlife; therefore, such plans in themselves are insufficient in the absence of a fish and wildlife plan prepared under Section 784.21 to meet the requirements of Sections 516(b)(1), 516(b)(10) and 515(b)(24) of the Act, Section 817.97 of the regulations, and the Endangered Species Act.

A number of commenters suggested exemptions from regulatory requirements if the area affected is small. The Office has determined that size of area affected does not necessarily equate to the degree of effects on wildlife. For detailed discussion pertaining to exemptions of small areas of disturbance, refer to the Preamble for Section 780.16 and Section 779.21.

700 Section 516(b)(11) of the Act requires the use of best technology currently available. The Office believes that the wording of Section 784.21 is in accordance with the intent of the Act, and has retained requirements for the applicant to state how best technology currently available will be used. However, Section 783.20 provides for studies in consultation with various agencies having expertise in fish, wildlife and habitat management and protection. From these studies, the best technology currently available will be determined on a case-by-case basis for each mine area thus fostering the most practical technology for each situation. Section 786.17(a)(2) requires similar consultation for review of plans.

(3) Other comments addressed the question of what land area should be covered by a fish and wildlife plan. Comments recommended the phrase "areas to be affected'' used in the proposed rules should be changed to "surface or access facilities.'' The commenters assert underground mines do not disturb the entire surface of the mine plan area, and further assert such mines disturb only those areas which are used for access and in which surface facilities are located. Other commenters recommended the phrase "areas to be affected'' used in the proposed rules be replaced by the phrase "that area that would affect fish and wildlife.'' The Office agrees, in part, with the rationale of the commenters and has included provisions in final Section 784.21 so that less than the entire mine plan area is covered by a fish and wildlife plan, when adverse effects are not such as to warrant a plan for the entire area. Section 784.21 requires the fish and wildlife plan to cover only the portion of the mine plan area and adjacent areas in which adverse effects on fish, wildlife and related environmental values may reasonably be expected to occur. The discussion in the preamble for Section 783.20 of the regulation elaborates as to why this may be broader than just the area of surface facilities.

SECTION 784.22 Diversions.

Authority, basis and purpose for this Section are the same as for Section 780.29, and, in addition Section 516 of the Act. A few comments were received on this Section suggesting that it be restricted in scope to only surface operations and facilities of underground mining activities. These comments were rejected as unnecessary, because Section 784.21 only requires plans for diversions subject to Sections 817.43 817.44. Those Sections concern only water diversions resulting from disturbances of surface lands.

SECTION 784.23 Maps and plans.

Authority for this Section is found in Sections 102, 201(b), 501(b), 503, 504, 507 (b) and (g), 508(a), 515, and 516 of the Act. In addition to the narrative plans required by other Sections, this Section of Part 784 (presented in the proposed regulations as Section 784.22) requires that each application include described maps, plans and cross Sections. Some of these materials must be prepared by specified professionals as required by Sections 507, 515 and 516 of the Act. Accurate maps, plans and cross Sections are needed by the regulatory authority to determine whether the applicant can meet the performance standards of Part 817. The Office has made several editorial and organizational changes in this Section to make it consistent with other closely related Sections and to clarify its provisions. The introduction has been reduced to a single sentence pref acing the three paragraphs of this Section. Reference to map scales in this Section has been moved to Section 771.23(e) and comments received on that subject are discussed in the Preamble to that Section.

Section 784.23(b)(3) relating to areas for which a bond or other performance guarantee will be given has been added to this Section and to the companion Section for surface mining operation (Section 780.14) This information is necessary in order for the regulatory authority to identify the initial and successive incremental areas within the permit area in cases where an applicant elects to "increment'' the amount of the performance bond.

Section 784.23(a) requires map information on the underground mining activities to be conducted, and on the lands, facilities and features which will be affected or changed by the proposed operation. This information will give the regulatory authority an overview of the entire operation which will supplement the information on plans for the proposed permit area required under Section 784.23(b). Information of this nature on the proposed mine plan and adjacent areas is necessary in order to assess the cumulative impacts of the entire mining operation.

Section 784.23(b) requires identification of structures, facilities and areas which will be used or affected by the mining operation. This information is required for the proposed permit area with the following exceptions: As required by Section 508(a)(1) of the Act, identification of the land area to be affected by the proposed operation must be made with respect to the proposed mine plan area. In addition, Section 784.23(b)(11) requires profiles of the anticipated final surface configuration to be achieved for the affected areas. As defined in these regulations, the affected areas will always be within or the same as the permit area (see Section 701.5). The scope of information is potentially less for Section 784.23(b)(11) since the area disturbed or utilized in an underground mining operation may be less than that required for surface mining operation.

700 Section 784.23(c) did not appear in the proposed Section 784.22, but was included in the proposed Section 780.14, this Section's counterpart for surface mining operations. Section 784.23(c) requires that maps identifying certain areas and facilities be prepared by or under the direction of and certified by a qualified professional engineer or professional geologist, with assistance from experts in related fields. However, Section 784.23(c) further provides that plans for sedimentation ponds be prepared only by qualified registered engineers, and that plans for spoil disposal and underground development waste facilities be prepared only by qualified registered professional engineers. These requirements are in accordance with Sections 515 and 516 of the Act. The purpose of Section 784.23(c) is to insure high quality planning, design and documentation of the plans required in the application.

{15078}Several commenters raised issues related to specific parts of Section 784.23 which were also raised in connection with Section 780.14. These issues were discussed and resolved in the preamble to Section 780.14 and revised language has been incorporated in Section 784.23 where changes were also made in Section 780.14. These issues include: (1) deletion of design and construction specification in Sections 780.14(b)(11) and 784.23(b)(10); and (2) addition of professional engineers in Sections 780.14(c) and 784.23(c).

A few commenters suggested that Section 784.23(a) be limited to lands to be affected throughout the duration of the underground mining permit. This comment was rejected and no change was made since Section 508(a)(1) of the Act requires identification of lands to be affected over the entire life of the proposed operation.

Some commenters suggested that the requirement in Section 784.23(b)(5) for identification of topsoil and overburden storage areas be deleted. While topsoil and spoil storage and disposal requirements may be substantially less for underground mines than for surface mines, they will nevertheless be necessary and should therefore be shown on maps. No change was made to the regulations in response to these comments.

I11Some commenters suggested deleting Section 784.23(b)(12) which would require location and monitoring points for water quality, fish and wildlife and subsidence monitoring. These comments suggested that this information is difficult to acquire for underground mines. In response to this comment, the Office has deleted fish and wildlife monitoring points. However, water quality and subsidence monitoring points (where applicable) located on maps are critical for compliance with Sections 817.41 .57 and 817.121 .126 of the performance standards. These requirements have been retained.

SECTION 784.24 Transportation facilities.

The authority, basis, and purpose of this Section are the same as for Section 780.37 and are described in the Preamble discussion of that Section. In addition to Sections of the Act cited as authority in the Preamble for Section 780.37, this Section is also authorized by Section 516 of the Act. On September 18, 1978, this Section was proposed as Section 784.23.

This Section would ensure that surface transportation facilities within the mine plan area for underground mines are constructed, reconstructed, used, and maintained in a manner which complies with Sections 817.150 817.180.

Modifications have been made in the Section numbers of referenced performance regulations in paragraphs 784.24 (b), (c), and (d), to conform with Section number changes in the final regulations.

Paragraph (a) identifies specific transportation structures for which detailed descriptions are required. OSM feels that these details are necessary for the regulatory authority and the public to adequately evaluate and enforce the permit in accordance with applicable performance regulations.

Paragraph (b) requires that a geotechnical analysis be submitted where there is a request for alternative specifications or for steep cut slopes. This analysis will provide the regulatory authority information necessary to evaluate the request and to ensure protection of the public interests concerning environmental performance standards.

The phrase ". . . for alternative specifications, . . .'' has been added to paragraph (b) in conformance with changes implemented in Sections 817.150(d), 817.152(c), 817.160(d) and 817.162(c) in order not to restrict the operator unduly in the design and construction of transportation facilities. OSM feels that while allowing the operator more flexibility, the interests of the public have been maintained by requiring regulatory authority approval for alternative specifications.

Paragraph (c) requires a description of measures to be taken relative to modification of natural drainageways. These descriptions are necessary to ensure that Sections 516(b) (9), (10), and (11) of the Act and Sections 817.153, 817.163, 817.173 of the final regulations are complied with by the operator. These Sections require that natural drainageways not be altered or relocated without approval of the regulatory authority.

Paragraph (d) requires that alternative measures, which the operator intends on using, other than rock head walls, be approved by the regulatory authority. OSM feels that this is necessary in order for the operator to comply with Sections 817.153, 817.163, and 817.173 of the final regulations.

Paragraph (e) deals with the requirement for the description of transportation facilities in the entire mine plan area. The reasons for this requirement and a discussion of the reasons are given in Section 780.37 of the Preamble, and the reader is referred to that Section.

Many of the comments received regarding this Section on underground mining permit applications were similar or identical to statements submitted for surface mining permit applications (Section 780.37). The reader is referred to the Preamble discussion of Section 780.37 for OSM's disposition of the issues raised which is the same for this Section.

Several comments were received suggesting that proposed Sections 784.23 (b), (c), (d), and (e) be deleted. Proposed Section 784.23(e), relating to special requirements for embankments over 15 feet in height, was deleted for the reasons stated in the Preamble discussion of Section 780.37. OSM has determined that Sections (b), (c), and (d) are necessary in order for the regulatory authority to evaluate the proposed facility and to enforce the performance standards through the permit.

Several comments recommended requiring a narrative description for each facility. OSM has determined that specifications for a transportation facility are required in order to assess individual and/or cumulative impacts on the environment. Since the Act requires that disturbances to the environment be minimized, transportation facilities must be planned and constructed accordingly.

700 SECTION 784.25 Return of coal processing waste to abandoned underground workings.

Authority for this Section is Sections 102, 201, 501, 503, 504, 507, 508, 510, 515 and 516 of the Act.

An alternative method for alleviating potential subsidence problems and disposing of coal processing wastes is to use these materials to backfill voids in abandoned underground mines. The waste material provides lateral support to mine pillars and vertical support to the mine roof and overburden, and helps stabilize the surface. The major methods of backfilling are controlled, blind, and pumped slurrying (Whaite and Allen, 1975, pg. 5). A general discussion of these stowing techniques is found in a report by the National Academy of Sciences. (National Academy of Sciences, Underground Disposal of Coal Mine Wastes_A Report to the National Science Foundation (1975)).

Controlled flushing is used in mines in which workers can safely enter and gain access to key areas for the filling operations. A slurry of crushed coal refuse is passed into the mine through boreholes or shafts and placed by workers behind timber or other bulkheads for waste disposal and surface support purposes.

Blind flushing can be used where abandoned mine openings are inaccessible because of flooding or extensive caving. Granular material is injected into mine voids by gravity feed. Most blind flushing projects have required hundreds of holes because of the limited amount of material that can be emplaced through any one hole (Whaite and Allen, 1975, pg. 6).

A new technique for flushing of inaccessible mine workings utilizes pumped slurry injected from the surface. (Condub, Fleissing, and Associates, 1973, Pg. 4 9; Whaite and Allen, 1975, Pg. 6). Fly ash has also been used in subsidence stabilization (Magnuson et al., 1970, Pg. 84; Michael Baker 1973, p. 349).

{15079}Section 784.25(a) identifies the requirements for plans and procedures for the disposal of coal processing wastes in underground mines. This information is necessary for the regulatory authority to evaluate the permit and to ensure that the operator can comply with Section 817.88 of the performance standards. Paragraph (b) requires a description of the source and quality of backfill materials and anticipated impacts on active mine operations, surface areas and the occurrence of surface effects. This data and anticipated effects are necessary to evaluate the impact backfilling may have on mitigating subsidence.

Section 784.25(c) requires data on the elimination of excess water used in the backfilling operations from the fill materials and the impact this water may have on the hydrologic regime. This information is necessary for the regulatory authority to ensure compliance with Section 515(b)(10) of the Act. Paragraph (d) requires the identification of any monitoring wells in the backfill area so that the regulatory authority may determine if adequate monitoring is being planned by the operator. Paragraph (e) applies the above requirements to pneumatic backfilling except where monitoring may be exempted by the regulatory authority.

Several commenters understood the regulations to require the underground disposal of coal processing waste. This is a misinterpretation of Section 784.25 in that the purpose and intent of this Section is to control the disposal of coal processing wastes if and when an operation decides to use underground disposal methods. These comments were rejected on the basis that Section 784.25 of the final regulations does not require underground disposal methods as written.

Several commenters suggested the deletion of Sections 784.25(c), (d) and (e) on the basis that paragraphs (a) and (b) were all that were necessary since the Act does not mandate return of mine waste underground. OSM rejected these suggestions on the basis that mitigation of the environmental impacts of backfilling operations and the health and safety of both underground miners and protection of the public are mandated by the Act (Section 515(b) and 516). One commenter suggested the use of the word "any'' for "the'' in Section 784.25(a). This suggestion was accepted by OSM and this Section modified accordingly.

784.26 Air pollution control plan.

Section 784.26 of the final regulations establishes permit application requirements, so that the regulatory authority is provided with comprehensive and reliable information on the air quality impact of the surface operations associated with underground mining activities. This Section is intended to assure that the proposed surface coal mining operations comply with the air quality requirements of the Act.

In addition to the applicable legal authority listed in the Preamble discussion for Section 780.15 of the regulations, the Office relies upon Section 516 of the Act to support final regulations for underground mining activities.

The final regulations require that all permit applications for underground mining activities must contain an air quality monitoring program if required by the regulatory authority. Additionally, a plan for fugitive dust control must be submitted with the application as required under Section 817.95 of the final regulations.

The Preamble discussion supporting Section 780.15 is incorporated herein by reference. Comments relating to health effects of fugitive dust, modeling, monitoring, statutory authority, visibility and aesthetics have been thoroughly discussed in the Preamble to that Section.

This Section of the final regulations complements Section 817.95 and in conjunction with Sections 780.15 and 816.95, assures a uniform regulatory scheme to protect air quality during surface coal mining operations. The Section recognizes the inherent differences between surface and underground mining activities by making a monitoring program for underground mining activities discretionary, regardless of production levels. Contrary to Western surface mining, it is evident from the data that fugitive dust from surface operations associated with underground mining activities can vary widely depending upon the details of the operation. (Colorado Open Space Council, comments on Section 780.14. (1978)). Consequently, the Office has decided to allow the regulatory authority the discretion to determine the necessity for monitoring on a case-by-case basis.

This Section has, in part, been added as a result of comments questioning OSM's tentative decision in the proposed rules not to require detailed air quality plans in permit applications for underground mines because of a lack of data. According to the Colorado Open Space Council, submitted data show that underground mines can contribute significant quantities of particulate matter to the ambient air. (See also Assemblage of Data on Air Quality in Central and Southern Utah and Assessing the Impact of Coal Development on the Region on Air Quality, Aerovironment, Inc. table 4 1 11.) Similarly, commenters suggested that fugitive dust from underground mining activity would have significant impacts unless adequately controlled. After review, the Office has decided to accept these data and include Section 784.26 in the final regulations.

SUBCHAPTER G -- SURFACE COAL MINING AND RECLAMATION OPERATIONS PERMITS AND COAL EXPLORATION PROCEDURES SYSTEMS, 30 CFR PART 785 -- REQUIREMENTS FOR PERMITS FOR SPECIAL CATEGORIES OF OF MINING The preamble discussion accompanying the proposed regulations (including the introduction to this Part and a discussion of proposed Section 785.1 785.3), found on pages 41709 41710 in Federal Register, Vol. 43, No. 181 (September 18, 1978), is hereby incorporated by reference to provide background as to the basis and purposes of this Part.

SECTIONS 785.1 and 785.2 Scope and objective.

The introductory Sections 785.1 and 785.2 outline the scope and objective of this Part, respectively.

Section 785.1 makes it clear that the provisions of this Part are in addition to, not instead of, other applicable permit application requirements and procedures set forth in Subchapter G. The only changes to these Sections have been made for clarification, and are non-substantive in nature.

Section 785.2 states that the objective of this Part is to ensure that the regulatory authority has the information it needs to be sure the mining operations will be conducted in compliance with the provisions of the Act, Subchapter K and applicable regulatory programs. The references to Subchapter K and applicable regulatory programs have been added since the September 18, 1978, proposed version to reflect more accurately the place of this Part in the permanent regulatory program.

The Preamble discussion to the proposed regulations discussed a proposed Section 785.3_Responsibilities. This proposed Section was deleted from the proposed and final rules, because it was deemed to be unnecessarily duplicative. Its provisions, as described at 43 FR 41710, are all contained elsewhere in the Subchapter.

SECTION 785.11 Anthracite mining.

The authority for this Section is found in Sections 102, 201, 501, 503, 504, 505, 509, 510, 515, 516, 529, and 701 of the Act. This Section, together with Part 820, implements the special provisions of Section 529 of the Act, and the reader is referred to the preamble discussion of Part 820 for information relating to issues which bear on Section 785.11. This Section has not been substantially altered since the proposed regulations except for non-substantive editorial changes and a clarification of Paragraph (b)(2), to follow more closely the language of Section 529 of the Act.

{15080}One commenter noted that proposed Section 785.11(b)(2) did not clearly reference by Section or Part the exceptions of Subchapter J regarding specified bond limits and period of revegetation responsibility. Consideration was given to retaining the original reference to Subchapter J which only generally discusses the performance bonds and insurance requirements for surface mining and reclamation operations versus the adoption of language which specifically references Part 809_Bonding and Insurance Requirements for Anthracite Surface Coal Mining and Reclamation Operations. A modification has been made to refer to Part 809 because that Part discusses exemptions for anthracite surface coal mining and reclamation operations provided in Section 529(a) of the Act.

SECTION 785.12 Special bituminous coal mining and reclamation operations.

1. Authority for this Section includes Sections 102; 201(c); 501(b); 503(a); 504; 507(b); 508(a); 510(b); 515(b); and 527 of the Act. This Section would apply to persons engaging in "special bituminous coal mining'' in Wyoming, as defined in Section 701.5 of these rules, and would implement Section 527 of the Act. Under that Section, the Secretary is authorized to issue regulations establishing special environmental protection performance standards for mines covered by that Section, in lieu of those standards otherwise applicable under Section 515 of the Act. For the permanent regulatory program, the special environmental protection performance standards for "special bituminous coal mines'' are in Part 825 of these rules. To ensure that permits would be applied for and issued according to those environmental protection performance standards, the Office has adopted Section 785.12.

2. The Office emphasizes that by establishing this Section, special treatment for the mines involved is afforded only to the extent that the requirements of Subchapter G are affected by modification of the otherwise applicable environmental protection performance standards of Subchapter K under the provisions of Part 825. Therefore, all other requirements of Subchapter G would apply to the permitting of special bituminous coal mines in Wyoming, except insofar as a modification is needed to accommodate Part 825.

3. Under Section 527(b) of the Act, provision is made for the amendment of special bituminous coal mine regulations adopted by the Secretary under the Act, to account for changes in the special Wyoming regulatory program for those mines after August 3, 1977. Authority to adopt necessary additional special bituminous coal mining permits regulations is in Paragraph (d) of Section 785.12 of the final regulations.

4. Only one comment was received on Section 785.12. This comment recommended the word "mines'' be changed to read "pits.'' This recommendation was rejected because the word "pits'' was deemed potentially to be subject to too narrow interpretation. The wording adopted is quoted directly from the Act.

700 SECTION 785.13 Experimental practices mining.

This Section, implementing Section 711 of the Act, applies to all persons who wish to conduct mining operations which include experimental practices and imposes particular requirements for those experimental practices involving deviations from the environmental protection performance standards of Sections 515 and 516 of the Act, Subchapter K, and the regulatory program.

No substantive changes have been made in this Section from the version proposed on September 18, 1978. Consequently, the preamble discussion accompanying the proposed permanent regulatory program found at 43 FR 41711 41712 (September 18, 1978) is hereby incorporated by reference and sets forth the statutory authority, basis, and purposes of this Section. Several nonsubstantive changes were made for clarification or to improve the grammar or syntax.

1. Several commenters suggested that Paragraph (a) of this Section, when read in conjunction with paragraph (c), was unclear as proposed and should state that it does not apply to all experimental practices but applies only to those experimental practices which require a variance from the environmental performance standards of Subchapter K and the regulatory program. The alternatives which were considered by OSM included: (a) requiring a permit for all experimental practices and research under this Section; and (b) requiring additional permit information under this Section only when the environmental performance standards will be violated.

Research and investigations associated with coal mining are of a diverse nature, and direction through permit review and approval is required to ensure compliance with environmental performance standards. Too often, as conditions dictate or at the discretion of the researcher, the research objectives may change. Special permit provisions for all research would serve as a mechanism to monitor the compliance of the research with the permanent regulatory program and would provide OSM and State regulatory authorities information on new mining practices. On the other hand, a large number of mine-related research projects are undertaken every year. Not all of these projects cause or require deviation or a variance from the environmental performance standards. In some cases, additional permit requirements might discourage research and experimentation, in contradiction to the purposes of the Act, without achieving any environmental or health and safety benefits. OSM has clarified the regulations to maintain the scheme as proposed on September 18, 1978. That scheme balances the conflicting burdens and benefits raised by these comments. All research studies and experiments must be described to the regulatory authority in the permit application, or in any proposed revision to an existing permit, for evaluation, to determine if a variance is required. The language in Sections 785.13(a) and (c) has been amended to reflect the Office's decision regarding the intent and scope for experimental practices. Detailed additional information and monitoring will only be required if the regulatory authority determines that a variance from the performance standards is necessary to the conduct of the experiment. The variance must be approved by the regulatory authority and the Director.

2. A commenter suggested that experimental practices which may be supported by government, State, or university groups should not have to comply with the detailed requirements of this Section.

OSM considered including in this Section procedures for exempting publicly sponsored experimental practices, but rejected this alternative approach.

A large variety and number of research studies, investigations, and demonstrations are conducted by various organizations each year. Many of the projects may require that certain activities be conducted which would not comply with the environmental performance standards. The deviation from the environmental protection regulations covers a broad spectrum, with respect to both severity and nature of the impact.

OSM believes that a blanket exemption based on sponsorship of the experiment might lead some operations to utilize experimental practices as a mechanism to circumvent the performance standards. Proper control must be maintained over all research related to mining activities, if environmental degradation may occur.

{15081}On the other hand, colleges and universities and governmental agencies support, technically or financially, a wide variety of research activities designed to improve or develop technologies to enable mining and engineering practices to be conducted with a minimal impact on the environment and public safety. Many of these projects are limited in scope and physical extent. Some will involve minimal noncompliance with the performance standards, and a complete permit application for each experimental practice might discourage the conduct of many experiments each year. OSM believes that there is adequate provision made in these regulations so that small research experiments of limited environmental or health and safety risk need not be subjected to complex requirements for a variance or deviation. For example, operations under 2 acres need no permits at all, and experimental practices which will comply with the environmental performance standards will not require separate approval under this Section, but need only be described in the mining and reclamation plan required under Parts 780 and 784. If an experiment is first considered after a permit has been issued, the procedures for obtaining a revision of the permit need not be burdensome, so long as a variance from the performance standards is not necessary. Any request to revise a permit because of an experimental practice which would require a variance from the performance standards must be evaluated on a request-by-request basis. OSM believes that this review is necessary to ensure that the environmental performance standards of Subchapter K are complied with during all research activities. 3. Several commenters suggested that OSM delete Section 785.13(g), which requires that all experimental practices be advertised in a local newspaper. OSM considered deleting this requirement.

The requirement for advertising experimental practice in newspaper will increase public awareness and the opportunity for public comment. The Office also believes that reduced numbers of adverse comments during the mining operation will be received, because public comment and concern will have been aired on proposed deviations from the performance standards before approval and initiation of the experimental practice.

The Office has retained the requirement in Section 785.13(g) for the advertisement of all experimental practices requiring approval. The Office believes that, in the long run, the advertisement of the experimental practice in the newspaper will be a benefit to all persons with interests in the conduct of the experiment and the operation. In many situations the general public, through awareness of approved experimental practices, will be knowledgeable of the fact that certain changes and deviations from the environmental protection performance standards of Subchapter K have been approved. Less burden will be placed upon the public, the operator, and the regulatory authority in that complaints to the regulatory authority pointing out that certain operations are not being conducted with strict adherence to environmental performance standards of the regulatory program will be less likely. In addition, the newspaper advertisement will enable full public participation in the approval process, in furtherance of that purpose of the Act contained in Section 102(i).

4. A comment was received which requested that additional language be inserted into this Section to provide explicitly for public participation in the permit review. This recommendation has been rejected as this suggestion would lead to unnecessary and redundant language. Experimental practices only provide a variance to specific performance standards in the context of permit actions approved by the regulatory authority and the Director. As such, adequate involvement and review is provided to the general public in the permit review process under Part 787.

5. Another commenter suggested that additional review requirements should be inserted whenever the regulatory authority receives information indicating that an additional review is necessary due to a violation. This recommendation was rejected because adequate provision for review is provided under the enforcement and inspection program, and the language would merely be redundant, restating the requirements in Subchapter L. The Office further believes that Section 785.13(e)(5) contains sufficient provision by which the regulatory authority and the Director can make adequate review of the progress of the experimental practice through the submission of periodic reports describing the progress and the results of the required monitoring program.

700 6. It was suggested by a few commenters that the regulatory authority be required to review each experimental practice on a monthly basis. This Office believes that the review, inspection, and evaluation of all experimental practices approved by a regulatory authority under this Section is essential, because each experimental practice is different in complexity, duration and intent. It is impractical for OSM to specify a required period for inspection. The appropriate frequency of inspection will depend on the nature of the experimental practice. As such, this Office believes that the regulatory authority should have the option to determine the appropriate frequency of review for each experimental practice.

7. Another commenter requested that this Section make specific reference to the provisions for inspection and enforcement in Subchapter L. This Office has rejected the suggested change as redundant. Even without explicit reference, Subchapter L applies to all operations. As with all permits, the regulatory authority can establish whatever inspection it deems necessary to evaluate compliance with the approved experimental practices permit over and above the minimum inspections required by the Act and Subchapter L. This option, coupled with Section 785.13(h)(4)(iii), has lead OSM to believe that additional language is unnecessary, redundant and potentially misleading, since it might be deemed to imply that Subchapter L does not apply to the other special mining categories covered by this Part.

SECTION 785.14 Mountaintop removal mining.

This Section is designed to implement Section 515(c) of the Act and applies to persons who wish to conduct mining under regulatory programs through the use of mountaintop removal mining involving a variance from the return to the approximate original contour requirements of Section 515 of the Act, Subchapter K, and the regulatory program. The preamble accompanying proposed Section 785.15, found at 43 F.R. 41712 41713 (September 18, 1978), is hereby incorporated by reference to set forth the basis and purpose of this Section and its statutory authority, and remains effective except insofar as the Section has been changed by a few modifications to the proposed language for clarification and the substantive changes discussed below. This Section should be read together with Part 824, which contains performance standards for mountaintop removal mining.

This Section has been renumbered. Although it was proposed as Section 785.15 on September 18, 1978, OSM has decided that the regulations will be clearer if the proposed Section 785.16, relating to a variance for steep slope mining, follows immediately after the steep slope mining permit provisions. Accordingly, proposed Section 785.14 (steep slopes) and proposed Section 785.15 (mountaintop removal) have been reversed in the final rules, and the mountaintop removal permit requirements are promulgated as Section 785.14.

Section 785.14(a) states that the scope of the Section and Section 785.14(b) clarifies the meaning of "mountaintop removal mining'' as used in this Section.

{15082}1. One commenter requested that the language in Section 785.15(c) more closely follow the language found in Section 515(c) of the Act. The alternatives considered in response to this comment included: (a) Adopting the language found in Section 515(c) of the Act, and which would make the regulation repeat or closely parallel the language in the Act and (b) retaining the language as written in the proposed permanent regulations, which would place additional emphasis on assuring that the intent of Congress and the Act is achieved by incorporating the Act's requirements into the context of the permit application review stage to which this Section relates.

The organization of the proposed regulations achieves the objective of alternative (b), which OSM believes fulfills the useful role these regulations must play in the permanent program, and accordingly, the proposed rules were not changed in response to this comment. While the commenter alleged that the rule as proposed would, if finally adopted, involve redundant requirements, OSM does not believe this to be the case. Section 785.15(c) is a listing of findings the regulatory authority must make. Only Paragraph (c)(4) might be deemed remotely redundant, but OSM feels it is necessary to assure that the regulatory authority focuses on the scope of the variance granted.

2. Other comments were received requesting that new language be added to clarify the review requirements when granting a variance from the requirement to return the affected land to approximate original contour at mountaintop removal operations. These comments have been accepted in part. The Office has rewritten them for Section 785.14(d) to clarify the scheduling and procedures for reviewing permits. The suggested development and insertion of additional requirements for review each time the regulatory authority receives a request for review was rejected. The Office considered that the insertion of additional language to ensure a review would be held each time information suggested or alleged that a review, revision, or revocation of a permit might be appropriate, would be unduly burdensome on the regulatory authority. The public participation and complaint requirements of Subchapter L adequately ensure inspection promptly after public reporting of a violation. In addition, mountaintop removal operations will be subject to the periodic inspections required by Subchapter L. However, Paragraph (d) has been rewritten to ensure review prior to renewal of a permit and not later than mid-term, to ensure that both lengthy and short-term operations are subject to adequate review.

Section 785.14(d) has been internally renumbered from the September 18, 1978, version to separate the concepts into separate paragraphs as follows; Paragraph (d)(1), amendment of permit terms; Paragraph (d)(2), waiver of reviews; and Paragraph (d)(3), amendment of permit terms.

A proposed Paragraph (e) has been deleted as being unnecessary. The Paragraph would have explicitly required the regulatory authority to adopt regulations to implement this Section in language similar to Section 515(c)(5) of the Act. OSM believes such a provision might be misleading or confusing. In many States, OSM believes, mountaintop removal mining is unlikely to occur, and OSM is not requiring a mountaintop removal regulatory scheme as part of such a State's program submission under Subchapter C. If a State wishes to grant a variance for mountaintop removal activities, the provisions of Section 785.14 must be met at the permit stage, so that a paragraph setting forth a requirement for regulations would be redundant, because the regulatory program could only evaluate such a submission in accordance with its own rules.

700 SECTION 785.15 Steep slope coal mining.

Authority for this Section is found in Sections 102; 201(c); 501(b); 503(a); 504; 507(b); 508(a); 510(b); 515(b)(3)(4), (10), (22) and 515(d) of the Act. This Section would apply to persons conducting mining on steep slopes, which will be subject to environmental protection performance standards in addition to those required under Sections 515(b) and 516(b) of the Act. To ensure that the permitting of "steep slope'' coal mines accounts fully for those additional environmental protection performance standards, the Office is promulgating these special permitting requirements in 785.15. Under the permanent regulatory program, the special performance standards for steep slope mines are found in Part 826 of Subchapter K. The reader should read Section 785.16 together with Part 826, its preamble discussion, and the discussion below.

This Section was proposed as Section 785.14, but in reviewing the proposed rules OSM has determined that this Section logically belongs immediately before Section 785.16 which contains a variance applicable only on steep slopes. Accordingly, in the final rules this Section has been renumbered as Section 785.15.

Paragraph (a) of this Section stipulates that all surface coal mining and reclamation operations on steep slopes must comply with the provisions of 30 CFR 826.12 and other requirements of Subchapter K unless one of three exceptions are available: The first exception, explained in paragraph (a)(1), is explicitly provided in the first half of the proviso clause in the main text of Section 515(d) of the Act.

The second exception, for mountaintop removal mining, in Paragraph (a)(2), is similarly based on the second half of the proviso clause in the main text of Section 515(d) of the Act. Mountaintop removal mining permits are addressed separately in Section 785.14.

The third exception, which is in paragraph (a)(3) of Section 785.15, pertains to surface coal mining and reclamation operations which, although conducted on steep slopes, are allowed a variance from the requirment of restoration of the affected area to approximate the original contour under Section 515(e) of the Act. The permitting of mines, for which this last variance applies, is addressed separately in Section 785.16.

One commenter recommended that underground mining activities should be exempt specifically from the regulations of Part 826 on the grounds that adequate control of underground mines already exists in other Sections of the regulations. The Office has rejected this recommendation. An underground mine must comply with other applicable regulations of Subchapter K with respect to haul road construction and utilization, disposal of excess spoil at facing up operations, and disposal of development rock, among others. OSM has received no information which persuaded it that the environmental risks on steep slopes were so reduced for underground mines that the precautions required by Section 826.12 could be waived. Also, because the operator will want to dispose of excess material in a valley fill or other approved method off the active minesite, sufficient material may not be available at the termination of mining to return the affected area to the approximate original contour. Without the possibility of securing a variance to the requirement for restoring the affected area to approximate original contour, underground mining may be prohibited in the steep slope area. It would appear that a greater burden would be placed on the operator by exempting underground mining activities from Part 826 and the variance available under it, than by including these operations. This commenter suggested that the legislative history showed that the steep slope provisions were intended to apply only to contour (e.g. surface mines). However, the plain meaning of Sections 515(d) and 516(b)(10) of the Act lead OSM to conclude that the provisions must apply to underground mines. While the variance in Section 515(e) of the Act might be deemed to apply only to surface mines (it applies to "surface mining of coal,'' not "surface coal mining''), OSM felt such an interpretation would unduly restrict underground activities.

{15083}Several comments were received stating the fact that a referencing error had been detected in proposed paragraph (b), relating to the definition of "steep slopes.'' While these comments were correct, the proposed paragraph had been deleted as unnecessary, since the definition of steep slopes is now found in 30 CFR 701.5.

Under paragraph (b) of the final rule, the regulatory authority will require the necessary data, in writing, to ensure that the requirements of Section 515(d) of the Act and the environmental protection standards in 30 CFR 826.12 will be met. This paragraph is a modification of the proposed Section 785.14(c). Although reference to the other requirements of Subchapter G has been deleted in the revision, this was done to avoid redundancy and for consistency only. As stated in Section 785.15(c), every surface mine permit application for steep slopes must still fulfill the requirements of Parts 778 780, and deep mining permits must comply with Parts 782 784.

Paragraph (c) of this Section requires the regulatory authority to find, in order to issue a permit, that compliance with the performance standards of Part 826 is ensured. This Section has not been substantively changed from proposed Section 785.14(d).

SECTION 785.16 Permits incorporating variances from approximate original contour restoration requirements.

This Section concerns permits incorporating variances from the approximate original contour in steep slope surface coal mining and reclamation operations other than mountaintop removal, and is intended to implement Section 515(e) of the Act.

The preamble accompanying the draft permanent regulatory program found on pages 41713 through 41715 in FR, Vol. 43, no. 181, September 18, 1978, is hereby incorporated by reference to set forth the statutory authority, the basis, and the purposes of this Section, except to the extent it has been modified as discussed below. Several additional modifications were made for clarification only.

700 The proposed version at Paragraph (a) has been amended by the addition of reference to Sections 816.101 816.106 and 817.101 817.106 to clarify that all approximate original contour requirements could be waived for a steep slope operation which met the applicable requirement.

Several commenters suggested that the variance provided in this Section be broadened, to include nonsteep slope operations or to allow variances from requirements other than restoration to approximate original contour. These comments did not result in changes in the regulations from the proposed regulations. These comments were based upon a distinction between paragraphs 515(e)(1) and 515(e)(2) of the Act, and the commenters reading of the legislative history.

In reviewing these comments, OSM considered the following five alternative schemes to implement Section 515(e) of the Act: 1. The variance from approximate original contour would be available only to mining operations, which meet all the criteria of Section 785.16 of the regulations and of Section 515(e) of the Act.

2. The variance from approximate original contour would be available only to mining operations on steep slopes which meet all the criteria of Section 785.16 of the regulations and of Section 515(e) of the Act.

3. The variance from approximate original contour would be available only to surface (and not underground) operations which meet all the criteria of Section 785.16 of the regulations and of Section 515(e) of the Act.

4. The variance from approximate original contour might be available for: a. All mining operations which meet those criteria of Section 785.16 of the regulations, which are derived from Sections 515(c)(1) and (3) (6) of the Act; and b. Steep slope operations which meet the criteria of 785.16 of the regulations which are derived from Section 515(e)(2) (6) of the Act.

5. The variance might be expanded in scope to allow for non-compliance with any provisions of the Act for any mining operations which meet those criteria of Section 785.16 of the regulations which are derived from Sections 515(e)(1) and (3) (6) of the Act, but remain restricted to variances from the approximate original contour requirements for steep slope operations which meet the criteria of Sections 785.16 of the regulations which are derived from Sections 515(e)(2) (6) of the Act.

The second alternative was selected. OSM feels that alternative (2) most closely follows the intent of Congress as reflected in the legislative history and a fair reading of the Act. Alternative (1) appears to be at variance with the language of the Act, but has some support in the legislative history. Alternatives (3), (4) and (5) could be justified under the language of the Act, but are not supported in the legislative history. The alternatives ranked in order from most environmentally protective to least environmentally protective are (3), (2), (1), (4), and (5). The alternatives ranked in order from least expensive for industry to comply with to most expensive are (5), (4), (1), (2), and (3). Alternative (2) was the version in the proposed rules published for public comment September 18, 1978. The other four options were all suggested by the public comments.

The legislative history of this provision goes back to 1974. (See H. Rep. 93 1522, December 5, 1974, p. 77.) In conference this variance was narrowed, so that it only applied to mountaintop removal operations where specified postmining land uses would result. (See H. Rep. 93 1522, December 5, 1974, p. 77.) Again, in 1975 the Conference Committee reported out a bill (H.R. 25) which contained no variance from the approximate original contour requirements applicable on steep slopes. (See Rep. 94 107. May 2 (legislative day, April 21), 1975. p. 90.) In 1976, the bill reported out of the House Committee also limited the variance to mountaintop removal operations. (H. Rep. 94 1445, August 31, 1976, p. 69.) In 1977, the versions of the bill first reported out of Committee in both Houses contained no steep slope variance.

The predecessor language of the final variance provision of 515(e) was first added to the bill on the floor of the Senate on May 20, 1977. The proposed amendment, offered by Sen. Ford, was the subject of a long discussion. (123 Cong. Rec. S8097 S8103, May 20, 1977). In the Conference Committee report on July 12, 1977, the language of the amendment was changed, incorporating provisions of an amendment Sen. Randolph decided not to introduce on May 20, 1977, after Senator Metcalf agreed to support the Ford Amendment (123 Cong. Rec. S8101, May 20, 1977).

700 On July 21, 1977, a floor debate was held in the House on the Conference Committee version of the bill. In the summary of the provisions of the version finally enacted into law, it is stated that the "variance procedure in Section 515(e) contemplates only one variance procedure for the entire subSection which is conditioned by the constraints discussed above, including the complete backfilling of all highwalls.'' (123 Cong. Rec. H7584, July 21, 1977.) See also the Conference Committee report (H. Rep. 95 403, July 12, 1977, p. 59) which discusses this provision in a manner which leads OSM to believe it is limited to steep slope mining. OSM's narrow interpretation of Section 515(e) is in part a result of this analysis of the legislative history.

{15084}If alternative (1) were selected, it would have to be on the basis that paragraph (e)(1) expands the limitation to steep slope mining stated in (e)(2). If so, then it might logically be read to broaden the requirements for which the variance is available, to include all requirements of the Act. This is even broader than alternative (5) and is not suggested by the legislative history.

Alternative (3) has not been adopted, since no environmental or other policy reason exists why underground mines should not be able to take advantage of the variance.

Alternative (4) requires a straining of the legislative language beyond reasonable interpretation. It would mean reading into paragraph (e)(1) the "approximate original contour'' language of paragraph (e)(2), but not the limitation of that language to steep slopes, as contained in paragraph (e)(2).

Alternative (5) is a reasonable reading of the language of paragraph (e), but flies in the face of the legislative history and would mean that any requirement of the Act could be waived by the regulatory authority, so long as watershed control would be improved and the highwall is covered. This is an extremely broad variance which would affect all OSM regulations, from revegetation, waste dams, and impoundments, to bonding, inspections, and permit procedures. There is no basis in the legislative history for adoption of this alternative, which would undercut the Congressional intent for minimal national standards, by allowing every regulatory authority to waive any requirement of the permanent program. No provision has been made in these regulations to broaden the variations from approximate original contour, except in mountaintop removal, to include other than steep slope operations. It should be noted, however, that under the definition of steep slopes contained in Section 701.5 of these regulations, a regulatory authority may make the steep slope provisions applicable on slopes of less than 20 .

A comment stated that to require covering the highwall provides no variance to approximate original contour requirements. The intention of the Act was not to provide loopholes by which operations might be conducted without eliminating the highwall. The variance provision permits the operator to regrade the effected area to a steeper angle than the original topography; however, the stability of the backfilled material must be assured and the highwall must be eliminated by backfilling or reduction. OSM believes that the drafters of Section 515(e)(2) meant what they wrote, when they provided that the variance would be from "approximate original contour,'' and not from the highwall-covering requirement, which is a separate requirement of Section 515(d)(2) of the Act.

As originally proposed, Section 785.16 included a provision requiring the regulatory authority to enact special regulations to implement this variance. This language has been deleted in the final rules because OSM believes it would be redundant. The substance of that provision is now implemented in the introductory paragraph to Section 826.15 of these rules.

A comment was received suggesting that proposed Section 785.16(b), which cross referenced the definition of steep slopes, be deleted as unnecessary. This recommendation was accepted and the Section has been deleted.

When this Section was proposed, OSM announced it was considering adopting a simplified procedure for applicants for this variance and solicited public comment on the legality and desirability of the proposal. (43 F.R. 41689, September 18, 1978) OSM received no comments on this proposal. After further reflection and analysis, OSM has been unable to justify the proposed simplified procedure. All steep slope operations must obtain mining and reclamation permits, and the permit application provisions have already been reduced to the minimum required under the Act to achieve statutory goals. In addition, OSM is concerned that this statutorily-authorized variance should not become a loophole to the contour-restoration requirements of the permanent program for operations not eligible under the strict criteria of Section 515(e) of the Act. Accordingly, no special, shortened permit procedure has been promulgated, and OSM does not expect it will approve any such alternative procedures proposed for any State program. Such an alternative is not within the "State Window'' concept of Section 713.13.

SECTION 785.17 Permit application requirements for prime farmlands.

Section 785.17 contains the requirements for a permit application where the land to be mined is prime farmland. Authority for this Section is found in Sections 102, 201, 501(b),, 503(a), 504, 507(b) (11) and (16), 508(a)(2 5, 8, 13), 510 (b) and (d), 511, 515(b)(2, 5 7, 19 20) and 516 of the Act. These provisions are intended to ensure that, once prime farmland is identified under the pre-application investigations of prime farmland requirements of Sections 779.27 or 783.27, for surface and underground mines respectively, adequate plans will be developed by permit applicants to ensure return of prime farmland to equal or higher agricultural production than before mining. This Section sets forth the information that permit applications must include if the area proposed to be mined contains prime farmland. Further discussion of the authority, basis, and purpose of Section 785.17 is found in the preamble to the proposed regulations at 43 FR 41715 41719 (September 18, 1978). Certain paragraphs of the proposed regulations received no comments and, accordingly, remain the same in the final regulations other than renumbering or minor editorial changes. They are Paragraphs (b)(2), formerly (e)(2); (b)(4), formerly (e)(3); (b)(5), formerly (e)(4); (b)(6), formerly (e)(5); and (d)(2), formerly (f)(2)(ii). The material in paragraphs (c) and (d) of the proposed regulations has been moved to Sections 779.27 and 783.27 of the final regulations; and the definition of soil survey in paragraph (b) has been moved to Section 701.5. All changes in the final versions of these Sections are discussed in their respective preambles.

Paragraph (a) sets forth the scope and range of applicability of the prime farmland permit application requirements. It implements Section 510(d) of the Act which makes special prime farmland performance standards applicable to all surface coal mining and reclamation operations on areas which are identified as prime farmlands.

In connection with Paragraph (a), OSM received many comments on the prime farmlands exemption or "grandfather clause'' for permits issued prior to August 3, 1977. This exemption implements Section 510(d)(2) of the Act. As set forth in both the proposed regulations and final regulations, the grandfather clause for prime farmlands applies only to areas where mining is authorized under permits issued prior to August 3, 1977; it does not apply to new areas, not previously covered by a permit, which are included in renewals or revisions of pre-August 3, 1977, permits. New areas, where mining is not previously authorized under a prior permit, will be required to meet the prime farmlands performance standards of Part 823.

This interpretation of the grandfather clause for the permanent regulations differs from the exemption in the initial regulations as set forth in 30 CFR 716.7(a)(2). OSM believes that a different construction of this exemption for the permanent program is justified because of Congress' intent to prevent indefinite expansion of mining in prime farmland areas if operators cannot achieve compliance with the prime farmland performance standards. See, e.g., 123 Cong. Rec. H7588 7589 (daily ed., July 21, 1977, statements of Congressmen Tsongas and Udall); and In re Surface Mining Litigation, T1452 F. Supp. 327 (D.D.C. 1978).

{15085}No commenters responded to OSM's explicit request (43 FR 41715) for data indicating that this provision of the permanent regulations will prohibit any existing operations. Thus, OSM has concluded that continued operation of ongoing mining will be assured, as Congress likewise intended. See, e.g., S. Rep. No. 95 337, 95th Cong. 1st Sess. 105 (1977); and 123 Cong, Rec. S12442 (daily ed., July 20, 1977, statements of Senators McClure and Metcalfe). Moreover, because Section 511(a)(3) of the Act requires that a new permit application must be prepared for any permit revisions which encompass an extension of the permit area, OSM believes that revisions or renewals which relate to new areas of prime farmland cannot be grandfathered from the requirements of the permanent prime farmland reclamation standards. A number of commenters supported OSM's interpretation of the grandfather clause in the proposed regulations. They pointed out that a broader grandfather clause (a) would provide an unfair economic advantage to existing mines, (b) would allow mines to be exempt indefinitely, and (c) would be contrary to Congress' concern to restore prime farmlands to full productivity. Several commenters opposed any exemption from the permanent regulations as not authorized by the Act. Other commenters opposed even the broader exemption of the initial regulations as being too restrictive; they argued that all permit renewals or revisions should be grandfathered from the permanent program and disputed the effect of the legislative history. They claimed that pre-permit studies and surveys could not possibly be completed prior to expiration of their current permits and that the grandfather clause is not limited to the initial regulations. For the reasons explained above, OSM agrees with those commenters who opposed a broader grandfather clause and has rejected the comments that urged expansion of the grandfather clause beyond the initial regulations to cover all permit renewals or revisions during the permanent program.

Several commenters were also concerned about what types of permits would qualify for this exemption. In light of the definition of permit in Section 701(15) of the Act, OSM believes that a permit to conduct surface coal mining operations is the only type of permit that qualifies; other types of Federal, State or local permits are not sufficient to satisfy this exemption even if they were issued prior to August 3, 1977.

Numerous comments were also received on OSM's conclusion in the preamble to the proposed regulations (43 F.R. 41716) that Section 785.17 applies to underground mining activities. Many commenters argued that underground mining should be excluded from the prime farmland provisions because (a) surface effects of underground mines are small in comparison with surface mines; (b) the location of surface facilities for underground mining is strongly constrained by the geology, hydrology, geography, transportation routes, and existing surface resources and land-use patterns which may cause the most desirable mine site to be located on prime farmland; and (c) the prime farmland provisions would impose an additional constraint on the location of these surface facilities, a constraint that in many instances would be both expensive and may not provide for environmentally optional siting of surface facilities. Many other commenters supported the application of prime farmland requirements to underground mines. They pointed out the damage caused to prime farmlands from subsidence which reduces productivity, alters drainage and renders soil untillable.

OSM has decided to retain the applicability of the prime farmlands requirements to both surface and underground mines. The reasons for this decision are as follows: (a) OSM does not have authority under Section 516(d) of the Act to exempt underground mining from the requirements of Section 785.17 because the surface effects of underground mining surface operations and facilities on prime farmland can be as damaging as the effects of surface mining on prime farmland; (b) none of the commenters provided documentation of distinct differences between surface and underground mines that could require special permit application procedures to protect prime farmland from deep mining; and (c) the severe surface damage from subsidence due to underground mines, as documented by Bunrud and Osterwald, 1978, pp. 1 and 65, makes it imperative that prime farmland be protected from deep mining.

700 Paragraph (b) sets forth the required contents for a permit application with respect to prime farmlands, including a soil survey, the method and type of equipment to be used for soil removal, storage and replacement, moist bulk density data, location of stockpile areas, documentation concerning use of other suitable soil material, seeding or cropping plans, studies on levels of yield, current estimated yield, and restoration of soil productivity to equivalent yield. These data in the application need only be provided with respect to the area to be covered by the permit, as opposed to the entire mine plan area. This limited coverage is justified, in OSM's view, in order to avoid an unnecessary burden on the applicant. Nevertheless, all prime farmland in the mine plan area will be adequately protected by means of the pre-application procedures of Sections 779.27 and 783.27 which require investigation of the entire mine plan area to determine the location of any prime farmland areas.

Commenters expressed two concerns about the soil survey required in Paragraph (b)(1). First, they asked whether a survey could be conducted by persons or organizations other than the Soil Conservation Service (SCS). OSM did not intend to restrict the regulations in this manner. Under the final regulations, other qualified individuals, groups, or organizations could perform the survey. Second, a few commenters expressed concern that many soil surveys are over 20 years old and would not be adequate to reflect the current condition of prime farmland soils. OSM realizes that some old soil surveys would not now meet the standards of the National Cooperative Soil Survey (NCSS). Before use of these surveys can be approved, they will have to be revised or updated to the NCSS standards, so that the soil maps and descriptions accurately reflect premining soil profiles.

Several commenters proposed that information gained from a soil survey, developed in accordance with the procedures set forth in U.S.D.A. Handbooks 436 (Soil Taxonomy) and 18 (Soil Survey Manual), should be adequate to describe the soils within the permit area and that site-specific soil information is not necessary. OSM agrees that this soil survey information is sufficient and will be adequate for the purposes of the permit application. Accordingly, these publications have been incorporated by reference into the final regulations, and OSM allows for other representative descriptions to be used, if available and approved by the regulatory authority.

A commenter requested clarification in the final regulations to explain that map unit descriptions are to be prepared as part of the soil survey. Paragraph (b)(1)(ii) has been revised to require that a soil survey include map unit descriptions and a representative soil profile description. Map unit descriptions and representative soil profile descriptions are needed to determine that proposed mining operations will be conducted in compliance with the performance standards in Part 823. Soil profile descriptions will document the thickness and physical properties of all soil layers in the natural soil, and can be used for quality comparision between natural soil and reconstruction soil, or between natural soil and proposed substitute material.

One commenter suggested that soil map units for prime farmland soils should be prepared by a certified soil scientist or agronomist in order to provide a uniform standard of excellence, since only qualified individuals are certified. While this may be correct, OSM believes that the requirement of Paragraph (b)(1) of the final regulation for surveys to be prepared according to the standards of the NCSS, and in accordance with procedures set forth in U.S.D.A. Handbooks 436 (Soil Taxonomy) and 18 (Soil Survey Manual), will accomplish the same goals of uniformity and high standards. In addition, further control will be provided by the requirement for the SCS to review the map units for conformity with established standards. OSM believes that the SCS soil scientists are qualified to interpret the standards whether or not they choose to join a voluntary certification program.

{15086}Paragraph (b)(3) is a new provision which corresponds to the requirements of 30 CFR 823.14(c), concerning compaction of prime farmland soils. In response to numerous comments, the latter Section has been changed to measure compaction in terms of moist bulk density rather than permeability. The reasons for that change are discussed in the preamble for Part 823. Having made that change, however, it became necessary to make a corresponding change in Section 785.17, in order to ensure that the necessary moist bulk density data are submitted with the permit application.

Paragraph (b)(3) requires that moist bulk density measurements be taken for each soil horizon by methods described by the SCS. These measurements of moist bulk density are necessary so that soil compaction may be estimated for the soil reconstruction standards of Section 823.14(c). Soil compaction must be miminized so that the reconstructed soil will have optimal root growth potential (McCormack, 1967, p. 28, Table 3). Root growth is directly related to crop yields which are paramount in achieving prime farmland performance standards.

The methods utilized by the SCS in determining moist bulk density include specific procedures dealing with soil particle sizes and soil moisture content. These procedures are especially important in determining moist bulk density parameters on agricultural soil. Often moist bulk density tests by the construction industry relate only to compacted fill. Such compaction, of course, would be devastating to plant growth (McCormack, 1967, p. 20). The preambles to both the definition of moist bulk density in Section 701.5 and to Section 823.14(c) discuss moist bulk density further.

Some commenters suggested a change in Paragraph (b)(4) to require separate stockpiling only where necessary. This change would allow operators to store prime and nonprime soil materials in the same stockpile. OSM has not adopted this change because mixing the A horizon with the next lower horizon, the B horizon, or other materials of lesser quality than the A horizon, can result in a productivity potential far short of the level of yield which might otherwise be achieved through separate stockpiling (McCormack, 1974, p. 150.) Other commenters suggested changes in Paragraphs (b)(7), which requires submission of available studies or data to demonstrate that any other suitable material which the applicant proposes to use in place of the A, B, or C soil horizons will achieve equivalent or higher levels of yield after mining. Deletion of the entire subSection was suggested on the basis that it duplicated Sections 816.111 and 816.116. Other changes in the language were proposed to clarify its purpose, ensure uniform results, and eliminate any confusion about its meaning. OSM has not adopted any of these changes in the belief that the regulation, as written, will provide the regulatory authority with evidence that the plan is based on the best available scientific evidence. 700 Paragraphs (b) (8) and (9) are new paragraphs which clarify the permit requirements needed to implement new Section 823.15, revegetation standards for prime farmlands. The reasons for adding those new Sections are set forth in the preamble to Part 823. Several comments were received concerning the provision for consultation with the Secretary of Agriculture, now contained in Section 785.17(c) of the final regulations. This provision implements the requirement of Section 510(d)(1) of the Act, for the regulatory authority to consult with the Secretary of Agriculture before issuing a permit for mining of prime farmland. These commenters suggested that the period of this consultation should not extend beyond 60 days. They claimed that an open-ended review period makes it impossible for operators to plan and budget for their permit applications. No time limit has been imposed in the final regulations because the regulatory authority is responsible for timely consultation with the Secretary of Agriculture. Also, environmental conditions such as frozen ground would make it difficult to conform with such a short time limit.

A few commenters questioned whether the Secretary of Agriculture is required to review the soil reconstruction plan twice, on both the pre-application identification and the complete application. Any confusion in this respect should be eliminated by the transfer of the identification procedures to Sections 779.27 and 783.27. Another commenter asked for clarification of the U.S.D.A.'s role in issuing a permit for mining on prime farmlands. Under the final regulations, U.S.D.A. reviews and comments on the soil reconstruction plan, but the regulatory authority remains responsible for issuance or nonissuance of the permit to mine.

Paragraph (d) sets forth the findings which must be made by the regulatory authority before it grants a permit to mine on prime farmlands. Paragraph (d)(1) requires that the postmining land use must be prime farmland. Several commenters suggested that the Act only requires that lands be reclaimed "to a condition capable of supporting the uses which it was capable of supporting prior to any mining, or higher or better uses . . .,'' and that the owner of the reclaimed surface has the right to decide what are higher or better uses within the constraints of local land-use laws and zoning regulations.

OSM disagrees with this interpretation of the Act. Instead, OSM believes that, at the time the bond is released, the land must be both capable of supporting prime farmland use and must actually be in use as prime farmland. This interpretation is based on several provisions of the Act. Under Section 510(d)(1), a permit may be issued for the mining of prime farmlands only upon a finding that "the operator has the technological capability to restore such mined area, within a reasonable time to equivalent or higher levels of yield as nonmined prime farmland in the surrounding area under equivalent levels of management and can meet the soil reconstruction standards in Section 515(b)(7).'' Furthermore, Section 515(b)(7) requires that, when prime farmlands are mined, the topsoil and other soil horizons suitable for plant growth be segregated and replaced over spoil material; and Section 515(c)(2) provides that a permittee's performance bond shall not be released "until soil productivity for prime farmlands has returned to equivalent levels of yield as non-mined land of the same soil type in the surrounding area under equivalent management practices.'' All of these provisions are based on the assumption that prime farmland will be restored to agriculture production.

This interpretation is further confirmed by the legislative history of the Act where Congress frequently referred to the need to reclaim prime farmland for agriculture use and not allow conversion to other uses. See, e.g., 123 Cong. Rec. S8104, S8108, S8111 (daily ed. May 20, 1977); and H.R. Rep. No. 493, 95th Cong., 1st Sess. 105 (1977). Without this requirement, the provisions of the soil reconstruction standards based on plant growth, the requirement of restoration of soil productivity, and the comparison of the yield after reclamation to the yield of surrounding nonmined prime farmland would be meaningless.

{15087}Another commenter on Paragraph (d)(1) expressed concern that ponds or haul roads left after mining prime farmland could result in a decrease in prime farmland acreage; they suggested that the regulations be revised to prevent such occurrence. OSM believes that this change is not necessary because Paragraph (d)(1) allows only prime farmland as the postmining land use. On this basis, roads and ponds are not acceptable as a postmining land use on prime farmlands where such roads and ponds were not present before mining, except that the regulatory authority may approve a final cut water body.I11A number of commenters opposed the regulation contained in Paragraph (d)(3) requiring the regulatory authority to find in writing that the applicant has the technological capability to restore prime farmland. Section 510(d)(1) of the Act requires this finding. Two commenters suggested that this paragraph be reworded to require the operator to demonstrate technological capability to restore prime farmland. These comments have been rejected because OSM believes that sufficient information is required in the permit application and mining plan for the regulatory authority to determine whether the operator is technologically capable of restoring prime farmland. The regulatory authority may require, however, any additional evidence that it deems necessary to assist it in its determination of the operator's technological capability of restoring prime farmland.

Another commenter noted that there is a range in productivity among prime farmland soils and suggested that technological capability be based upon a comparison of yield restoration to similar nonmined prime farmland, rather than only to nonmined farmland in the surrounding area. OSM agrees that productivity of all prime farmland is not equal; but no change has been made in this paragraph because the final regulations in Part 823 establish the standards for restoration of productivity and it would be both duplicative and unnecessary to repeat those standards in this paragraph concerning the permit findings.

700 Several commenters questioned the reference to Section 515(b)(5) in the preamble to the proposed regulations (43 F.R.41715). They claimed that Section 515(b)(7) is the sole source of soil handling requirements for prime farmlands and that Section 515(b)(5) applies only to nonprime farmland areas. OSM continues to rely on Section 515(b)(5), however, because it and Sections 515(b) (2), (6), and (19) are essential authority for the full range of environmental protection performance standards to which operations on prime farmlands are subject, as provided in Section 785.17(d)(4) of the final regulations. While Section 515(b)(7) is more specific concerning the topsoil reconstruction requirements for prime farmlands, it does not entirely supplant these other requirements of the Act. As Section 810.11 of the final regulations explains, operations on prime farmlands must meet all other generally applicable performance standards, as well as the more specific standards of Part 823.

SECTION 785.18 Variances for delay in contemporaneous reclamation requirement combined surface and underground mining operations. This Section has not been changed substantively from the proposed regulations (43 FR 41857 41858). The preamble accompanying the draft permanent regulatory program found at 43 F.R. 41719 (September 18, 1978) is hereby incorporated by reference and sets forth the authority, basis, and purpose of this Section. This Section applies to permit applications for combined surface and underground coal mining, where the applicant desires a variance from the requirement to reclaim the effected land as contemporaneously as practicable, so as to conduct underground mining activities. This Section authorizes operations which must comply with the standards of Parts 816, and 818, and the reader is referred to the preamble discussion for Part 818 for a discussion of issues relevant to this Section.

As proposed, this Section has a different Paragraph (c) which has been deleted because it was redundant. All subsequent proposed Paragraphs were relettered within the Section in this final version. Several references to Section 516(b) of the Act were either replaced with correct references to the appropriate implementing regulation or deleted as unnecessary.

A comment was received which proposed that a new sentence be added to Section 785.18(a) to limit the scope of the provision. The proposed language would have stated that no variance would be required from the regulatory authority in those situations where surface facilities are being constructed for an underground mining operation and the coal extracted from the site is only for such site preparation and installation.

The intent of Section 515(b)(16) of the Act and Section 785.18 and Part 818 of the permanent regulations is to allow concurrent methods of mining while protecting the environment and the health and safety of the miners. Thus, incidental coal production relative to site preparations for an underground mining activity should not necessarily be eligible for a variance, since it might not constitute "surface mining activities,'' in which case it would be subject to the contemporaneous reclamation requirements in Section 817.100. OSM does not feel that describing the site-preparation activities will be burdensome to the operator, and feels that any variance for "incidental'' extraction would be subject to possible abuse. The commenter gave no reason why the site-preparation activities should not either be followed by prompt reclamation or receive a variance under this Section.

Accordingly, no change in the proposed regulations was made in response to this comment. 700 SECTION 785.19 Alluvial valley floors.

Introduction 785.19 contains the permit application portion of the Office's regulatory standards for insuring protection of alluvial valley floors in the arid and semiarid areas of the United States and is adopted under the authority of Sections 102, 201, 501, 503, 504, 505, 506, 507, 508, 509, 510, 515, 516, 517, 519, 522, and 701 of the Act. Section 785.19 provides minimum standards for the permitting of surface coal mining and reclamation operations in, adjacent to or under valleys holding a stream. Performance, design, and reclamation standards for the protection of alluvial valley floors are adopted at Part 822 of Subchapter K. The harm resulting to alluvial valley floor systems and their use for agriculture from surface coal mining and reclamation operations which Section 785.19 and Part 822 are designed to mitigate, are described in the Final EIS at pages BIII 34 to BIII 36. The general basis and purpose for the alluvial valley floor permitting requirements was described at 43 FR 41719 41720, 41723 41724 (Sept. 18, 1978).

(A) The Office has made a number of editorial and organizational changes in the original three Sections that treated alluvial valley floor consideration for surface coal mining and reclamation operations in the arid and semiarid areas of the United States. Two of the proposed Sections, 785.19 and 786.17, both related to permitting, have been combined in order to clearly indicate to an applicant, at the time the preapplication investigations are conducted, the criteria for permit approval or denial. Thus proposed 786.17 has been transferred to 785.19 as paragraph (e) of the final rule.

(B) The Office has determined that the proposed regulations related to alluvial valley floors were not consistent in the use of location designating terms such as "adjacent area'' and "affected area'' and "mine plan area.'' Changes have been made at the following places in the final regulations to ensure continuity within the regulations, and to avoid any confusion regarding the intent of the Office with respect to alluvial valley floors: {15088}(1) 785.19(c)(1)_The reconnaissance investigation shall be conducted in the mine plan area and in the adjacent area. The addition is necessary to identify alluvial valley floors in the vicinity of the proposed operations and to determine whether the proposed operations will affect alluvial valley floors both within and outside the mine plan area.

(2) Sections 785.19(c)(1)(i); 785.19(c)(1)(ii); 785.19(c)(1)(iii); 785.19(c)(1)(iv); 785.19(c)(1)(v); 785.19(c)(1)(vi)._Mapping of lands and documentation of sub-irrigated areas and flood irrigible areas is to be accomplished, at a minimum in the mine plan area and in the adjacent area in order to cover areas that may be affected. Thus, the areas referred to in Section 785.19(c)(1) (i) through (vi) are the same as those defined in 785.19(c)(1).

Section 785.19(c)(2)_The term study area refers to the area required to be investigated by the Regulatory Authority pursuant to Section 785.19(c)(1) in order to identify possible alluvial valley floors in the mine plan area and the adjacent area, and to determine the probable extent of the adjacent area.

(3) Section 785.19(c)(2)(ii)(C)_One commenter asked that the exemptions for lands artificially sub-irrigated by ponds or reservoirs be deleted from the criteria for alluvial valley floor determinations in subparagraph Section 785.19(c)(2)(ii)(C). The Office understands that the reason for the request is that separation of natural subirrigation from artificial subirrigation in such areas is impossible. In situations where a dam backs up water and causes flooding and an associated rise in the local water table, there is often some amount of both natural and artificial subirrigation. The definition of alluvial valley floors at Section 701(1) of the Act does not distinguish between natural and artificial subirrigated areas as determinative of the existence of an alluvial valley floor. The Office has deleted the exemption, but does not intend to conclude that areas of artificial subirrigation necessarily indicate the presence of an essential hydrologic function of subirrigation. This decision is further suggested by the appearance of the adverb "naturally'' modifying "subirrigated'' in 510(b)(5)(A) of the Act. Congress concluded that it was necessary to distinguish natural from artificial subirrigation for purposes of determining significance. This distinction is not relevant to identifying alluvial valley floors in the first instance since it is not found in the definition in Section 701 of the Act.

(4) Section 785.19(d)(1)_The phrase "or adjacent to'' has been changed to "adjacent area'' to be consistent with defined terms in 701.5.

(5) Section 785.19(d)(1)(ii)_"Area'' in this subparagraph refers to the affected area, since the significance to agricultural activities is not assessed in unaffected areas. In this context, affected area is understood to include, among others, areas where the water supply could be materially damaged.

(6) Section 785.19(d)(2) (iii) and (iv)_The "areas designated as alluvial valley floors'' refers back to "land within the proposed permit area or adjacent area identified as an alluvial valley floors.'' Section 510(b)(5) of the Act provides that exchange of private coal in alluvial valley floors for Federal coal outside alluvial valley floors are to be made under Section 206 of the Federal Land Policy and Management Act, 43 U.S.C. Section 1716.

BLM issued Organic Act Directive 78 14 on March 17, 1978, which provides that exchanges may be processed and satisfied under the regulations in 43 CFR Part 2000 and the instructions in the Directive itself.

785.19 Use of definitions _(See preamble to Section 705.5). One commenter asked the Office why alluvial valley floors were not defined the way the Clean Water Act defined "headwaters.'' The Office has been unable to find a definition of "headwaters,'' in either the Clean Water Act 33 USC Section 1251 1376 or Safe Drinking Water Act (42 USC Section 300).

700 (7) Section 785.19 Impact on Mine able Reserves One commenter opined that from fifteen to twenty percent of western coal could be "locked out'' by the proposed regulations. This estimate was based on calculations of the area of strippable coal overlain by all alluvial soils in both bottomlands and uplands at sites in the Powder River Basin. A consultant to the commenter calculated that an average of 11.2 percent of the area studied at four sites in Wyoming and Montana was covered by alluvial soils. More specifically, the percentages of alluvial valley floors using this soils classification were 5.7, 9.9, 16.1, and 19.5 of each of the four sites. The corresponding percentages of strippable coal overlain by all alluvial soils were 5.7, 8.1, 11.2, and 13.5 (average 8.7 percent). Tabulated results of other studies conducted independently by the same consultant at four mine sites (one of which overlaps one of the first four sites) using the same alluvial soil criteria showed 3.2, 5.3, 17.9, and 18.6 percent of the strippable coal resources of each site overlain by alluvial valley floors. The consultant also calculated for four additional sites, that the flood irrigation capability was 4.1, 6.0, 10.0, and 14.0 percent of the site area. The calculations were inferred by the commenter to have been based on guidance procedures proposed by the Department on August 25, 1978 (43 FR 38035). The calculations were used to support the contention of the commenter that too large a percentage of the West would be designated as alluvial valley floors if the Office's proposed technical guidelines were used. The percentages developed by the commenters were compared to average estimates by Malde and Boyles (1976), Schmidt (1977), and Hardaway et al. (1977), under the assertion that Congress developed the alluvial valley floor provisions based on the small (3 percent) area of land reported by the three investigations cited above. However, the specific methods (soil surveys, maps, etc.) used by the commenters to develop the estimates were not shown, so it was not possible for the Office to assess the degree of similarity with the Office's proposed guideline techniques. It appears that the commenter assumed that all alluvial soils will be designated as indicators of alluvial valley floors. This is valid for identifying areas to be studied, but it is clear that neither the technical guideline nor these regulations are so indiscriminate as to identify alluvial soils as alluvial valley floors. This comment did not result in a change to the regulations for the following reasons. First, the assumption that all alluvial soils are located in areas that would be designated alluvial valley floors is incorrect. It would also be incorrect to assume that all colluvial soils do not lie in alluvial valley floors. The distinction between alluvial and colluvial soils is difficult, and the criteria used to distinguish between them have not been correlated with alluvial valley floor determinations. The Office recognizes that certain alluvial soils, as well as certain otherwise ideal soils in certain topographic locations, are not irrigable or, in site-specific circumstances, are not attractive for use for agricultural activities supported by subirrigation or flood irrigation.

Second, the commenters analysis also ignores the fact that the reconnaissance analysis by Hardaway et al. (1977) found a wide range of areas of sub-irrigated alluvial valley floors in 87 mine sites surveyed. The Office recognizes that past analysis did not utilize the investigative techniques currently used and that land boundaries were not precise. Nonetheless, the order of magnitude of the areas identified as sub-irrigated alluvial valley floors have been borne out by field surveys. For comparison with the percentages of alluvial valley floors calculated by the commenter, Hardaway, et al., identified a range of from 0 to 37 percent of coal mine tracts to be overlain by subirrigated alluvial valley floors_a much broader range in percentages than that offered by the commenter.

{15089}The three percent value referenced by Congress was for the entire Western United States, not only the Powder River Basin, but also valley floors in the Northern Great Plains.

Additionally, the above commenter also proposed that the Office use a national soils classification (of Class III or better soils) to desingate alluvial valley floors. As is discussed below, in response to a proposal to use a soil classification criterion as an absolute factor for identifying alluvial valley floors, such procedure ignores the requirement of the Act to compare the significance and size of the alluvial valley floor relative to the adjoining upland areas and the farm's agricultural activities.

Further, the Office did not change the regulations in response to the commenter's concern, because it did not relate the percentage of alluvial valley floors identified, using alluvial soils or soil classes, to the amount of these alluvial valley floors which might be "locked up'' by the provisions of Section 510(b)(5) of the Act. First, the designation of an area as an alluvial valley floor does not preclude mining as a matter of law. Mining will only be prohibited where there is an alluvial valley floor and (1) where mining will interfere with or preclude farming; (2) where mining will materially damage the water supply to an alluvial valley floor; or (3) where the essential hydrologic functions cannot be restored after mining. Based upon experience under the initial regulatory program, the Office knows that all alluvial valley floors will not be unmineable as suggested by the commenter. Thus, the Office feels that equating the area of strippable coal "locked out'' with all alluvial valley floor areas is incorrect. This determination is further borne out by the use of the term "significance'' in Section 785.19(e)(2) to allow for exemptions from the general requirements of Section 510(b)(5)(A) of the Act in the approval of permits.

(8) Preapplication Investigation.Several commenters expressed concern that implementation of Section 785.19, in particular Paragraph (c)(1) thereof would remove the flexibility they felt had been expressed in the Technical Guidelines proposed by OSM (43 Fed. Reg., pp. 38035 45 25 August 1978) to guide pre-permit investigations on alluvial valley floors. Specific objections to 785.19(c) by other commenters alleged that it required unwarranted, expensive, and inflexible requirements to perform complex technical investigations regardless of whether alluvial valley floors existed. A few commenters requested that the regulatory authority be permitted to use discretion in requiring a field investigation. Three commenters asked that the regulations provide a framework within the Technical Guidance document for alluvial valley floors that could be mined, but that the elements of the guidelines be removed from the regulations to provide fleixibility. However, one of these commenters noted that, "No designation (of an alluvial valley floor) should be made without using the full identification process which is being developed at this time.'' Thus, the desire for flexibility was not always directed toward reducing the interdisciplinary analysis of natural characteristics necessary to identify alluvial valley floors and their essential hydrologic functions, but rather was directed at the apparent likelihood that each element of the investigation would have to be performed on every piece of land to be included in the mining and reclamation operation.

(9) Specifically, two commenters asked that the requirements of Section 785.19(c)(1) be replaced with a requirement to consult with the regulatory authority and then to perform a reconnaissance following the OSM Technical Guidelines. Another commenter observed that the proposed procedure was broad, complex, and costly. Another questioned the source of the authority for a Pre-application investigation.

700 The Office proposed Section 785.19 with the intent of (1) obtaining sufficient information for the regulatory authority to evaluate and act on determinations of alluvial valley floors and proposals to avoid disturbing or to reestablish their essential hydrologic functions; and (2) giving the applicant an early identification, if not a final determination, of whether an alluvial valley floor existed within the affected area, whether it was significant, and whether there was a potential to cause material damage to an alluvial valley floor. A report prior to submitting an application for a permit is not necessary if the applicant decides that a determination may wait until a complete application and mining plan is submitted. Thus, in Section 785.19(c)(1), the Office has modified the proposed language to give discretion to the applicant and the regulatory authority in determining when an early investigation of an alluvial valley floor is to be performed. This has been accomplished by adding a phrase which allows the investigations to be submitted either prior to submitting a full application or prior to submitting a mining plan.

(B) The Office has also accepted the recommendation of one commenter that an applicant be allowed to submit an affirmative declaration of the presence of an alluvial valley floor for consideration and action by the regulatory authority. This affirmation can be based on appropriate information.

The Office also considered adding a provision at the end of Section 785.19(c)(1) to specifically express the fact that areas which are hydrologically isolated from the proposed operations need not be investigated. Such a provision would have been based on the same hydrologic principles as would any study of hydrologic effects. The applicant is not expected to pursue effects and interactions past hydrologic barriers or beyond points of statistical insignificance. However, such a provision would have been extremely detailed and lengthy. Instead, the Office has reemphasized that the studies are to be an "appropriate combination'' of activities based on "site specific conditions'' (see Section 785.19(c)(1)). This reiteration is meant to provide that further studies may be curtailed if a mine's location is isolated from an alluvial valley floor.

It must be understood that if the essential hydrologic functions of an alluvial valley floor are to be preserved when the alluvial valley floor is mined, or when the alluvial valley floor is not mined, a simple affirmative declaration by the applicant based on no field data will not suffice for a complete permit application. The regulatory authority must have a basis in fact to support a written finding that the operations will be conducted to preserve the essential hydrologic functions. Thus, the declaration must have a complete identification of the essential hydrologic functions and a showing of exactly why these will not be disturbed. The requirements of Section 785.19(d) must be satisfied if land within or adjacent to the proposed permit area has an alluvial valley floor, regardless of whether the alluvial valley floor has been identified through complex field investigations or a simple affirmation.

(C) The authority for requiring this investigation when operations are proposed in the semiarid or arid areas of the United States, located west of the 100th meridian, is contained in Section 510 of the Act which requires the application for a permit to affirmatively demonstrate that the proposed operations will comply with Section 510(b)(5) of the Act, as well as with Section 515.

(D) The Office has also responded to requests for ensuring flexibility in the regulations by replacing the phrase "determined in consultation with the regulatory authority'' with the phrase "required to be investigated by the regulatory authority in consultation with the applicant.'' Not only does this change answer the questions as to who "determines,'' it also makes clear the desirability of allowing the regulatory authority, with it's familarity with local conditions, to help focus the detailed investigation on likely areas.

{15090}(E) Other changes which respond to general comments requesting flexibility and specific requests for modified language are_ (1) The Office has deleted the word "all'' as it was included in Section 785.19(c)(1)(i), since it could have been inferred to require mapping of every area covered by unconsolidated, stream laid material. It is the Office's intent to ensure that these deposits are mapped to the degree necessary to identify alluvial valley floors and not to map narrow or thin deposits which are too small or are otherwise excluded from the definition of alluvial valley floors.

700 (2) Several comments were received suggesting the inclusion of a negative determination procedure in paragraph 785.19(c), using determinants similar to those used for prime farmland exclusions under 30 CFR 779.27 and 783.27. As an example of "negative determinants,'' one commenter suggested adding phrases to subparagraphs 785.19(c)(1)(i) and (ii) to provide that areas which do not meet the geologic, hydrologic, land use, and water availability characteristics of alluvial valley floors, would be excluded from further consideration by the applicant. Another commenter recommended that the only areas meriting further study should be those that pass the test of 30 CFR 785.19(c)(1)(ii).

The Office agrees that the proposed regulation lacked clarity in the requirements for reconnaissance investigation to allow for accurate negative determinations on a consistent basis. It was the intent of the Office to allow discretion in applying the requirements to the degree necessary to identify alluvial valley floors. If, for example, the investigations conducted under subparagraph 785.19(c)(1)(ii) show no lands that are sub-irrigated, no lands that are flood irrigated, and no water available for flood irrigation, the Office would not require additional alluvial valley floor assessments on these lands. Therefore, language more clearly expressing this limitation, by requiring "an appropriate combination'' of elements of the investigation, has been inserted at the end of subparagraph (c)(1). The Office has clarified the criteria for identifying alluvial valley floors in Section 785.19(c)(2), by stating that the regulatory authority shall find that an alluvial floor exists, if the criteria are present.

The Office has not found it possible to specify a sequential process for the investigation, as one commenter proposed, since to do so would: (1) incorporate the proposed Technical Guidelines (43 Fed. Reg., pp. 38035 45, August 25, 1978); and (2) oversimplify an interdisciplinary and site-specific process. Thus, the regulations do not include absolute criteria for making negative determinations.

(F)(1) Several commenters, indicated great difficulty in applying or understanding the two mile radius that was proposed in Section 785.19(c)(1) to give guidance on how far from a proposed mine site one would look for alluvial valley floors. The two mile limit was considered a reasonable indicator of how far away one would initially search for existing hydrologic or other pertinent data that would identify or eliminate alluvial valley floors.

One commenter proposed leaving the designation of areas larger than two miles to the regulatory authority. Others proposed deleting the requirement. One proposed modifying the language to read "in associated offsite areas to such a stream.'' One suggested the only streams examined should be perennial streams. This suggestion resulted from a typographical error in the definition of unconsolidated stream-laid deposits in Section 701.5, which in turn led to confusing language.

(2) In net effect, commenters appeared to argue for a criterion more suitable to the varying hydrologic conditions existing at specific sites. The Office has deleted the two mile radius from the regulations and inserted criteria that tailor the area of investigation to the mine plan area and the adjacent area as required by the regulatory authority since the extent of the adjacent area cannot be documented until the initial, and possibly additional, investigation is conducted. These criteria are now contained in Section 785.19(c)(1). This decision should satisfy the commenters' request for flexibility by allowing the scope of the investigation to be determined on a site specific basis.

(3) The Office has also chosen not to impose a detailed requirement for drawdown or cone-of-depression calculations at the pre-application stage of the investigation. The necessary aquifer testing to produce reliable data could be expensive, while the pre-application investigation is designed to be a lower cost investigation aimed primarily at making determinations regarding the presence of alluvial valley floors which would trigger the requirements of Section 785.19(d) and (e).

(4) One commenter's proposal that the two mile limit apply only to those streams capable of supporting significant flood irrigation and sub-irrigation farming activities was not accepted, because the requirements of Sections 510(b)(3) and 515(b)(10) of the Act require the protection of the hydrologic balance on alluvial valley floors regardless of their significance to farming. Thus, it is inappropriate to limit the identification process to "significant'' alluvial valley floors. An application must identify all alluvial valley floors as defined in 701(1) of the Act. Then assessments of significance to farming in the context of 510(b)(5)(A) can be made by review under 785.19(d) (e).

(G) A few commenters raised the issue of high costs of the pre-application survey, as well as the alleged high costs of the total study of the essential hydrologic functions. Since all commenters used the same dollar values, the Office assumed that the figures in all probability originated from one source. According to the information provided to the Office by a commenter, the cost data were developed based on a 3,840-acre mine tract. An area described by two mile radius surrounding this area was presumed by the commenters to be studied in lesser detail than was the mine plan area. Thus, a total of 26,000 acres was investigated. No additional data were provided by the commenter to support the cost figures. The commenters alleged that the analysis had taken into account the fact that hydrologic, biologic and geologic data would be required to evaluate the impact of mining on any stream, regardless of its status as an alluvial valley floor, and that the costs for an alluvial valley floor were incremental to those baseline study costs. However, no explanation of the alleged costs was provided, thereby making it impossible for the Office to check the assumptions regarding the unit cost of each step in the process, or to determine if the commenter properly distinguished between baseline investigations required for all streams, and the incremental costs attributable exclusively to alluvial valley floors. Given this lack of supporting data or explanations, the Office can give very little credibility to the base conclusions offered.

700 (1) The Office believes the actual cost figures for "pre-application'' investigations of alluvial valley floors, will be lower than those cited by the commenters, although they will be more costly than ordinary environmental monitoring costs. If, however, the applicant proposed to mine an alluvial valley floor, it will be necessary to evaluate the essential hydrologic functions. In the case of complex hydrologic systems, the cost of groundwater wells and aquifer testing would increase the costs and might result in figures not unlike those submitted by the commenters. But, again, these costs are presently incurred by applicants in large surface mines in the West (see for example Section 26 210(10) S10300 Pre-planning in the Montana Administrative Code, Adopted Rules and Regulations Pursuant to Title 50, Chapter 10, R.C.M. 1947, which requires monitoring and surveys of vegetation, soils, hydraulics, water quantity and quality and others), and would likely be incurred in great part, to show compliance with the requirements of Sections 507(b)(1), 510(b)(3), and 515 of the Act under any circumstances. Further, if one of the criteria for identifying alluvial valley floors is not present, it may not be necessary to proceed with other parts of the investigation. The Office has made this clear by specifying that "an appropriate combination'' of the study elements adapted to site specific conditions be used, Section 785.19(c)(1).

{15091}(H)(1) Several comments were made on proposed Subsections 785.19(c)(1) (iv) and (v), which required one-year's groundwater and surface water data. Commenters noted that this requirement would require twelve months of study just to determine whether there may be an alluvial valley floor. In view of the modifications made to make the pre-application investigation more flexible and less time consuming, the Office has changed the subsections to specify that only representative onsite data must be submitted at the pre-application phase. These data should represent, at a minimum, the most favorable groundwater and surface water characteristics for agricultural activities. If such data are representative of those conditions, then they would be acceptable for use in the determinations required by Section 789.19(c).

Otherwise, the request for a preliminary final negative determination cannot be made. The language of Section 785.19(c)(2)(ii) and (iv) has been modified to ensure that seasonal variations are described by the data, since the one year of data collection has been deleted from the pre-application investigation.

(2) One commenter asked that soil test pits be included under subparagraph 785.19(c)(1)(iv). The use of these pits for soil moisture measurements, stratigraphic descriptions, vegetation root measurements, and soils analyses is already allowed within the proposed language. Thus, no changes have been made. The phrase "appropriate combination'' added to Section 785.19(c)(1) also allows site specific design of a measurement scheme using pits, soil auger samples, cores, neutron probe and access tubes, or whatever procedures are suitable for the site.

(3) One commenter recommended collection of data at two periods: one in the fall and one in the summer. While such data could define the range of natural fluctuations, the "weighted averages'' and characteristics during periods of moisture stress and high plant demand might not be adequately assessed with only Fall/Summer measurements. In the Handbook of Applied Hydrology, 1964 (Ven Te Chow, Editor-In-Chief, McGraw Hill Book Co.), figure 24 1d on page 24 6 shows that most of the arid and semiarid areas of the United States have predominantly winter precipitation with the greatest amount of runoff occuring then and in the spring during snowmelt.

One commenter suggested that the inclusion of the aerial imagery in Subparagraph 785.19(c)(1)(vi) as an element of the preapplication investigation was redundent in view of the requirements of preceding subparagraphs for hydrologic, land use, vegetation, and other data. Thus it was recommended by the commenter that the aerial imagery be deleted. The Office believes the applicant is given flexibility to eliminate this information if not required for a determination. The Office has also determined that aerial imagery is an extremely useful tool, 1 G1 in identifying the general areas of subirrigation, areas of present or historic flood irrigation, location of terraces, grazings, diversion structures, and related land use factors. Thus, no change in the proposed version of the regulations was made.

G21 The Office considers color infrared imagery to be of value in reconnaissance analyses of alluvial valley floors. Attention is called to the following quotation from the legislative history (Congressional Record-House, April 29, 1977, p. 3813): "Mr. Roncalio. I regret very much that in the years we have been working on this complex matter we could not have been taking ultrahigh-elevation photos with infrared shots of the alluvial valley floors, and made precise definitions that mandated certain Sections and townships as barred, and certain Sections and townships could be mined. That would have been an appropriate way to write this law.'' (2) Commenters observed that the sentence in proposed Section 785.19(c)(1), that the Secretary could choose to publish results of alluvial valley floors mapping was unacceptable or, at best, that it should be agreed to by the State regulatory authority. The principal concern expressed was that the Secretary would publish studies and unilaterally designate alluvial valley floors using outdated, incorrect, or inflexible methods and do so without following rulemaking procedures. While it was the intent of the Office only to note that such studies could be performed in the future, and not to incorporate automatically studies without following appropriate procedures, the sentence has been deleted from the final regulations.

(3) Section 785.19(c)(1)(vii) Commenters addressed the proposed requirement for maps of farms contained in Subparagraph 781.19(c)(1)(vii). One comment indicated that the only time such a map was needed was when an alluvial valley floor existed in the permit area. The specific requirement for a map is necessary principally when an alluvial valley floor exists. This is why the proposed requirement was introduced in terms of "farms that could be affected.'' If the farm could not be affected, this requirement for a map disappears as does the rest of the subparagraph's requirements.

The Office does not intend to require analysis of alluvial valley floors that will not be affected, provided an adequate showing is made that there will be no adverse effects. To further clarify that the need for a map occurs principally when an alluvial valley floor has been identified as within an adjacent area, the requirement has been moved to the subparagraph 785.19(d)(2)(vi) in the final rules, thereby renumbering proposed subparagraph (d)(vi) to subparagraph (d)(vii).

(A) Subsection 785.19(e) Criteria , which was proposed at 786.17, establishes the criteria by which an application for surface coal mining and reclamation operation on, adjacent to or under an alluvial valley, in the Arid and Semiarid areas of the United States will be approved or disapproved. The criteria are listed in Sections 785.19(e)(1) (i) (iv). Definitions relevant to the administration of those criteria are adopted at 785.19(e) (2) (4). A wide range of comments were received on the proposed regulation.

(1) One commenter recommended that the protection of farming at 785.19(e)(1), be expanded to include protection of undeveloped rangeland which had the potential to be significant to farming. In other words, the commenter asked that the potential of undeveloped rangeland that could be significant to a farm's agricultural production be protected in the context of Section 510(b)(5)(A) of the Act. The same addition was recommended for Subparagraph 822.12(a)(1) of the performance standards Section, where operations are directed to be conducted so as not to interrupt, discontinue, or preclude farming on alluvial valley floors located within the affected areas.

The Office has not modified the regulations, because it will be very difficult to routinely evaluate the potential significance of undeveloped rangeland. To do so, a particular alluvial valley floor's agricultural potential would have to be compared to a hypothetical "farm's'' production. However, it is noted that potentially significant undeveloped rangelands located in mined alluvial valley floors will be protected under the provisions of 822.11 which requires reestablishment of essential hydrologic functions of alluvial valley floors. These provisions provide adequate protection for rangeland. Thus, it is unnecessary to adopt the commenters suggestion.

{15092}(2) Some commenters have made recommendations relating to the proposed language of Section 786.17(c) (now 785.19(c)(2)) as that subparagraph described the phrase "significance . . . on farming.'' The Office has determined that the test of significance would be applied to all alluvial valley floors, regardless of whether they are currently undeveloped rangelands or not. The option of prohibiting mining on all alluvial valley floors except those that are undeveloped rangeland was rejected, because it would not take into account the "small acreage . . . negligible impact'' phrase of Section 510(b)(5)(A) of the Act. The intent of the Congress to include grazing of domestic animals and ranching in the agricultural activities conducted in alluvial valley floors is evident in the House Committee Report (H. Report 95 218 95th Cong., 1st Sess.) An option of reiterating the two potential exclusions of Section 510(b)(5)(A) (e.g. (1) undeveloped rangelands which are not significant to farming on said alluvial valley floors and (2) areas of such small acreage as to be of negligible impact on the farm's agricultural production), was felt to be unduly complex particularly if a viable alternative could be identified. The alternative was to use the term "significance to (or on) farming'' to represent both exclusions, that is, the undeveloped rangeland and the small acreage exclusions. The Office, therefore, interprets the small acreage determination to be a determination of significance to a farm's agricultural production.

(3) Commenters asked that significance be related, variously, to one farm, to a particular crop, to the nation, or to another base. The comparison to determine significance must be site-specific as is evidenced by legislative history (Cong. Rec. May 19, 1977, S 8039), and as discussed in the preamble to Section 785.19(c). The Office modified the measure of significance, so that it can be judged on whether removal of the area from production would decrease the expected annual income from agricultural activities normally conducted at the farm. Many comments related to the proposal to use a value of 10 percent, or more stringent criteria established by the regulatory authority, to define the area of a farm that would, if affected, be "significant'' in terms of being included under Section 510(b)(5)(A) of the Act. See (Section 785.19(e)(2) proposed Section 786.17(c)).

Commenters suggested that the 10 percent value be used to measure changes in vegetation yields, rather than changes in area. This, according to commenters, would return the protection of alluvial valley floors to a more appropriate emphasis as contained in the pre-proposed version of the regulation. The Office considered this option, but did not specifically propose it, because the effect of mining and reclamation on vegetation yields is difficult to predict from a typical mine plan, while the actual land area affected is easier to identify. In somewhat the same context, commenters suggested that the percentage (10 percent) should be applied to the specific alluvial valley floor affected by the operation wherever that crop occurs on the farm. Thus, if 150 acres of alfalfa were proposed to be mined in an alluvial valley floor, the significance of the impact would, it is presumed, be compared to the rest of the area of the alluvial valley floor not mined within that farm. Another commenter proposed that the 10 percent value be applied to the area of the farm as a whole, and perhaps be weighted according to the relative value of the various crops grown on the farm. In this way, the indicator would reflect variations in crop productivity, utility, and value. Thus, a small acreage of a valuable crop would rank relatively high in comparison to a low value crop covering a large area. 700 A few commenters asked that grazing forage or animal unit months be used to measure the significance of a proposed operation. This was not accepted since the significance determination is applied also to other agricultural activities of small acreages but of potentially high significance.

Some commenters recommended deleting the 10 percent value, since it was too restrictive. One commenter recommended that the value could be inappropriately restrictive. Another, in restating a different aspect of Section 785.19(e)(1), accepted the 10 percent value. Three commenters thought the 10 percent value should be replaced by an economic indicator, based on a "prudent man test.'' That is, the area would be significant if a reasonable or prudent man would expend money to farm and in turn, realize an economic gain. One commenter suggested the 10 percent value be related to the farm's total historical productivity as one measure of significance.

The Office has determined that a value of 10 percent is inadequately estalished to be used at this time; and, therefore, has deleted the proposed language in the final regulation, as far as it specified a value of 10 percent. In accord with many comments received, the measure of significance has been changed to that of total value derived from agricultural activities rather than acreage. The comparison of vegetation yield of the alluvial valley floor would be made to total yield of the affected farm. It is felt that the exemption of Section 510(b)(5)(A) is more equitably handled with an assessment of yield rather than area, because the area does not necessarily reflect the value of the area to the farm, while the yield should be a direct measure of this value. The Office will apply this indicator in a quantitative basis in each case.

The Office has substituted, in place of the 10 percent criterion, a criterion that relates significantly to a decrease in the expected annual income from the farm.

This concept should satisfy the concern of commenters who expressed a desire to have the alluvial valley floor regulations incorporate additional economic indicators. It relates the significance to "expected'' income, which is in part a measure of historical production. In that manner, it also relates significance to a version of a "reasonable man'' indicator. It further relates significance to agricultural activities conducted on the farm as a whole, and, thus, satisfies the desire to make the evaluation relate to the value of various crops. The Office believes this approach to closely reflect the intent of Congress that mining will not be allowed if it interferes with a farming operation.

In response to one commenter, the Office has also changed the phrase of proposed Section 786.17(c) from "eliminate'' to "remove from production'' in Section 785.19(e)(2), since the latter phrase is more consistent with the requirements of Section 510(b)(5)(A) of the act to not "interrupt'' farming.

One commenter pointed out that Section 510(b)(5)(A) of the Act referred to "the farm's agricultural production'' (emphasis added), and that the proposed Section 786.17(c) (final 785.19(e)(2)) should not, therefore, specify "one or more farms.'' The regulations have been edited accordingly.

A few commenters indicated that proposed subparagraph 786.17(d)(2) (final rule 785.19(e)(3)) should be modified by further defining the "potential increases'' as "potentially adverse increases,'' and "potential decreases'' as "potential adverse decreases.'' With these modifications, the commenter concluded the changes in total dissolved solids, depth to water, or surface floors would be related to adverse effects in land use or vegetation production, as opposed to being absolute changes.

In each of the proposed subparagraphs (d)(2)(i), (ii), (iii), and (iv), the changes indicating natural damage are related to irrigable land or area available for agricultural activities, by reference to the parent paragraph (d). Proposed paragraph 786.17(d)(1) limited changes to those which (1) "cause significant and adverse changes in composition, diversity or productivity of vegetation'' or (2) result in limiting the "adequacy of water for flood irrigation'' of the irrigable lands. (This paragraph has since been moved to Section 701.5 as a definition of "material damage.'') As the commenters did not note or comment on paragraph 786.17(d)(1), and did not identify deficiencies in this particular paragraph as it related to the subparagraphs actually cited, the Office believes that the concerns expressed have been adequately addressed and resolved in the final definition of material damage.

{15093}A few commenters recommended that the material damage criteria contained in proposed 786.17(d)(2), now Section 785.19(e)(3), be made discretionary, by adding the word "may'' to the subparagraph, such that it would read ". . . may include, but are not limited too . . .'' The Office believes that the proposed criteria are valid and should be employed in all cases to determine the potential for material damage, unless other criteria are shown to be better measures of adverse effects. The regulation allows for a demonstration of alternative measures by the applicant in lieu of (e)(3)(i), under (e)(3)(ii) or (iii). Thus, the rule has not been changed. One commenter asked the Office to add the phrase, "to the satisfaction of the regulatory authority'' to subparagraph 786.17(d)(2)(i)(A), (now 785.19(e)(3)), to ensure that the applicant makes a valid showing that higher specific conductance will be acceptable. The Office believes this is implied in the regulation and has not made any changes.

(1) Two commenters supported the proposed criteria for defining material damage without reservations. Another commenter asked that protection of fish and wildlife be added to the material damage criteria. Since the definition of alluvial valley floors specifies "agricultural activities,'' and does not mention fish and wildlife values, the Office does not consider the alluvial valley floor provision to be an appropriate place to ensure protection to fish and wildlife. Thus, fish and wildlife values are protected under other provisions of the Office's regulations.

700 (2) Three commenters recommended that the Maas and Hoffman threshold values (specified in Section 785.19(e)(3)(i)) be cited as one of a number of guidelines for determining material damage as opposed to the only one. However, the commenters specified no other source of available data. In view of the applicants' opportunity to demonstrate the adequacy of other techniques, as provided for in subparagraphs 785.19(c)(3) (ii) and (iii), the Office has not accepted these comments.

(3) Two commenters believe that Section 786.17(d)(2)(ii), now 785.19(e)(3)(iv), did not allow beneficial dewatering of alluvial valley floors. The apparent prohibition was attributed to the combination of the proposed definition of material damage in Section 701.5 and the language of proposed 786.17 which, if not read in context, suggested that any increase in the depth of water would be prohibited. This was not the Office's intention. The replacement of the definition of material damage to ensure that significant and adverse effects are those referred to for material damage and the existing language of the cited Section which indicates that the dewatering, to be included, has to reduce the amount of subirrigated land, supports the determination of the Office that no additional changes are necessary.

(4) Commenters provided evidence from groundwater investigations conducted north of Decker, Montana, that the threshold values specified in Maas and Hoffman of specific conductance were presently exceeded for many plant species. The commenter speculated that mining would, therefore, be located in "dirty'' water areas, rather than "clean'' water areas, since compliance was alleged to be easier in the "dirty'' water areas. The Office recognizes that the specified threshold values may be exceeded, as was shown in the proposed subparagraph 786.17(d)(1)(i)(A), which contained a phrase allowing the applicant to demonstrate that higher threshold values will not result in crop yield decreases ( see final rule: Section 785.19(e)(3)(ii)). Since that language adequately resolves the commenter's concern, no changes were made.

(5) A few commenters argued that a margin of safety should not be expressed as proposed in subparagraph 786.17(d)(2)(i)(b), since threshold values varied at least 20 percent under varying site conditions. Instead it was recommended that determinations be made on a site-by-site basis. (The report of 20 percent variation was attributed to "Quality of Water/or Irrigation,'' Journal of the Irrigation and Drainage Division of the ASCE (1977).) Because of the possible mis-interpretation of the word "safety,'' the Office has changed the term, to take into account the "accuracy of the correlations'' (785.19(e)(3)(iii)) between total dissolved solids concentrations in water and crop yield declines.

(6) The Office has also reorganized the subparagraphs addressing material damage, to facilitate incorporation by reference of the data published by Maas and Hoffman. This reorganization has not affected the content of the final regulation compared to the proposed final regulation. Several commenters either directly or indirectly requested that the Office only apply the consideration of material damage required by Section 510(b)(5)(B) of the Act to those alluvial valley floors that meet the conditions of Section 510(b)(5)(A) of the Act. Most comments were directed at the word "and'' between subparagraphs (1) and (2) of paragraph 786.17(a) (now an "and'' between 785.19(e)(1) (iii) and (iv)). It was argued that by using the word "and'' rather than "or'' between the two subparagraphs, the "material damage test'' would be applied to undeveloped rangeland areas and to lands of small acreage (small as to having negligible impact on the farm's agricultural production) which were excluded from further consideration for prohibitions on mining by Section 510(b)(5)(A). Another commenter disagreed indicating that avoidance of adverse hydrologic consequences of mining in alluvial valley floors must remain distinct from farm land provisions.

In addition to changing the word "and'' to "or,'' these commenters suggested that specific language from the Act be inserted in Section 786.17(d) to exclude material damage considerations from all other alluvial valley floors. The Office does not feel the changes recommended by the commenters is required or desirable. It is our intention that each of the four tests for approval of mining on, adjacent to, or under an alluvial valley floor contained in Section 785.19(e)(1) (i) (iv) be met. The Office believes these requirements must be applied separately in order to implement the intent of Congress.

First, the legislative history is clear regarding the express congressional intent to prohibit mining in alluvial valley floors where there was farming and to also prohibit mining in areas adjacent to alluvial valley floors if the operation would materially damage alluvial valley floors where there was farming.

Mr.

Evans of Colorado. I would like a clarification of the requirements of Section 510(5)(a). SubSection (5) on page 258 appears to have two provisions; one in which it states, "the proposed surface coal mining operation . . . would not interrupt, discontinue or prevent farming on alluvial valley floors.'' That is subparagraph (a), and on page 259 subparagraph (a) ends with the word "or.'' Then, you have a new subparagraph (b), which says "not materially damage the quantity or quality of water in surface or underground water systems that supply these valley floors.'' It is my understanding, in reading both subSections (a) and (b), an applicant would have to satisfy both subSection (a) and subSection (b). It is not (a) or (b) but both (a) and (b). Is that correct? Mr.

Meeds.

I agree with the gentleman. I do not want, by my position, to be understood to be opening alluvial valley floors for indiscriminating mining. I think they still have to "not materially damage the quantity or quality of water in surface or underground water systems.'' Mr.

Evans of Colorado. Even though they were not interrupting or discontinuing.

Mr.

Meeds . That is correct. 123 Cong. Rec. H. 3814 (Apr. 29, 1973).

{15094}This colloquy evidences clear congressional intent to prohibit mining not only in alluvial valley floors where farming would be discontinued or precluded by the operation but also where mining would materially damage the quantity or quality of water supplying alluvial valley floors. Thus, Congress intended that even though mining may not interrupt or discontinue farming on alluvial valley floors under Section 510(b)(5)(A), mining should still be prohibited under Section 510(b)(5)(B) if it materially damages water supplying alluvial valley floors.

In addition to alluval valley floors where mining would be prohibited by farming, without regard to farming, mining may not take place which would materially damage waters supplying an alluvial valley floor located outside the permit area. Initially, it should be noted that the Office has determined that mining can occur in an alluvial valley floor where there is no farming, provided that a showing is made before the permit is issued that the essential hydrologic functions of the alluvial valley floor can be restored.

The Office does not, however, believe that it can permit mining which would materially damage water supplying an alluvial valley floor outside the permit area because of the prohibitions of Section 510(b)(3) and 515(b)(10)(f). Section 510(b)(3) specifically says that no permit shall be approved unless the regulatory authority has found that the proposed operation "has been designed to prevent material damage to hydrologic balance outside the permit area.'' Section 515(b)(10)(f) requires that an operation preserve "throughout the mining and reclamation process the essential hydrologic functions of alluvial valley floors in the arid and semi-arid areas of the country.'' Reading these two Sections together, it is clear that alluvial valley floors outside the permit area must not be materially damaged by the mining operation taking place within the permit area. The prohibitions apply regardless of whether the permit area is on, adjacent to or under an alluvial valley floor.

700 Commenters argued that Section 510(b)(3) is merely a general admonition and imposes no actual duties beyond those set forth at Section 510(b)(5). This is clearly incorrect since Section 510(b)(5) was specifically concerned with prohibiting mining absolutely where there was farming in an alluvial valley floor, regardless of whether the agricultural uses of the land could be restored. The "material damage'' test in Section 510(b)(5)(B) specifically prohibits degradation of the waters supplied to alluvial valley floors where there is farming, even if the area is within a permit area. Thus, Section 510(b)(5)(B) reaches alluvial valley floors not protected by Section 510(b)(3) since (b)(3) only protects the hydrologic balance outside the permit area. On the other hand, reading Sections 515(b)(10)(f) and 510(10)(b)(3) together leads to the necessary conclusion that mining will not be permitted which would affect alluvial valley floors if the applicant cannot show that: (1) in the case of disturbed alluvial valley floors, the essential hydrologic functions and agricultural productivity and utility of the land will be restored, and (2) in the case of alluvial valley floors outside the permit area, the hydrologic balance of the valley floor will not be materially damaged during or after mining.

(7) One commenter asked that paragraph 786.17(a) (now 785.19(e)(1)) be applied only when alluvial valley floors could "reasonably exist.'' It is believed that the commenter was concerned that the permit approval and denial criteria for alluvial valley floors would result in delay in obtaining a permit. The approval criteria apply to any application that meets the criteria of paragraph 786.17(a) (now 785.19(e)(1)), since Section 510(b)(5) requires a written finding on the part of the regulatory authority for any operation proposed to be located west of the 100th meridian west longitude. It may be possible in the context of submissions of State programs or particular Federal programs formation, to adequately demonstrate that no alluvial valley floors exist in certain well-defined coal regions. Then an exemption as urged by the commenter from Section 786.17, now 785.19(e), could be justified. At present, the Office has no basis for such exclusions, without first making the determination of the existence or absence of an alluvial valley floor pursuant to Section 786.17, now 785.19(e).

(8) One commenter asked that the ban on interruption, discontinuance, or preclusion of farming in Section 786.17(a)(1) (now 785.19(e)) be applied only to alluvial valley floors outside the permit area. This would be inconsistent with Section 510(b)(5)(A) of the Act, which is clearly intended to prohibit mining.

(9) One commenter noted that the requirement for a state permit in the proviso clause of Section 510(b)(5) of the Act required the permit to have been obtained in the year preceding August 3, 1977, rather than "before August 3, 1977,'' as was proposed in Section 786.17(b)(2) (now 785.19(e)(1)(i)).

The Office agrees and has changed the language accordingly. The Department has also moved the provisos of Sections 510(b)(5) and 506(d)(2) into Section 785(e)(1)(i). This limits the general application of the proviso to the significance for farming test, but would also apply the proviso indirectly to the "materially damage waters'' test by virtue of the fact that 785.19(e)(1)(ii) applies that test to alluvial valley floors included in 785.19(e)(1)(i), as well as those outside a permit area. Therefore the "materially damage waters'' test would not apply to those alluvial valley floors inside a permit area which are excluded from the "significance to farming'' test by virtue of the proviso as set out in (e)(1)(i) (A) and (B).

In response to language contained in the preamble to the proposed regulation, one commenter asked that further guidance be given to operators and operations included in the proviso of Section 506(d)(2). This has been done by excluding operations that produced coal or had permits to mine based on plans which identified alluvial valley floors from the prohibition of Section 510(b)(5)(A) to interrupt, discontinue, or preclude farming.

(c) A few commenters expressed concern over the use of the word "coherent'' as an adjective for farms (or ranches) in proposed Section 786.17(e) (now Section 785.19(e)(4)). The word implied that the land units should be contiguous. The Office used the term "coherent'' to mean a logical land management system, not a contiguous parcel of land. A land management system can either be marked by the identifiable boundaries of an historic management unit defined by a combination of leased and owned lands subject to the management of a single operator, or a logical management unit including lands suitable for farming, but which have been removed from agricultural production and are not subject to the control of a person who manages them for agricultural purposes. In view of the confusion, the Office has determined that the word "coherent,'' and associated words, can be deleted and its intent retained.

(8) One commenter recommended that proposed Section 786.17(e), now 785.19(c)(4), be deleted, since this paragraph, a definition, was not deemed necessary in Sections 785.19 or 822. The combination of Sections 785.19 and 786.17 now provides the special definition of a farm for all of the application procedures. The definition is specially designed to address the concerns expressed that applicants would discontinue farming on lands acquired for coal mining in order to facilitate mining of alluvial valley floors. Thus it has been retained under permit application procedures for alluvial valley floors. This reflects Congress' clear intent to prevent applicants from removing farmlands from production in order to avoid the provisions of Sections 510(b)(5)(A), i.e., 785.19(e)(1).

{15095}The commenter objected that no distinction is made under Section 510(b)(5) of the Act between farming and grazing or rangeland cropped for hay and grazed rangeland and, that, therefore, no distinction should be made. The Office agreed so appropriate modification was made of Section 785.19(e)(2) of the final rule.

700 SECTION 785.20 Augering operations.

Section 515(b)(9) provides specific environmental protection performance standards for surface coal mining and reclamation operations involving auger mining. 30 CFR 785.20 is promulgated under authority found in Sections 102, 201, 501(b), 503, 504, 507(b), 508(a), and 515(b) of the Act. Only minor changes for clarification were made to the proposed permanent regulations. The preamble accompanying the proposed permanent regulatory program found at 43 FR 41720 (Sept. 18, 1978) is hereby incorporated by reference for discussion of the basis and purpose of this Section.

This Section must be read in connection with Part 819, and the reader is referred to the preamble discussion of that Part for a treatment of issues relevant to this Section.

SECTION 785.21 Coal-processing plants and support facilities not within the permit area for a specific mine.

Authority for this Section is found in Sections 102, 201, 501(b), 503, 504, 506, 507(b), 508(a), 510(b) 515, 516, and 701 of the Act.

Under 701(28)(B) of the Act, coal processing plants and related support facilities not located within the permit area for a specific mine, but ". . . incident . . .'' to the operation of coal mines are defined to be "surface coal mining operations.'' Under Section 506(a) of the Act, all of those operations must obtain permits under regulatory programs. Under Section 515 of the Act, environmental protection performance standards are applicable to those operations. Section 785.21 will implement the Act's permit requirements for these operations and help ensure that they will be conducted in compliance with the special environmental protection standards in Part 827 of Subchapter K.

OSM wants to ensure that the same level of environmental protection applies to those facilities where coal is prepared for market as to mine-site operations, even though those preparation facilities may exist outside the permit area of a mine. This Section will be implemented together with Part 827, and the reader is referred to the preamble for that Part for a discussion of issues related to this Section. In writing these final regulations, OSM considered the following alternatives, all of which were suggested by comments to the proposed rules. 1. That OSM control only onsite coal-processing plants and facilities (storage piles, waste piles, sludge ponds, washers, loading and handling facilities, and the like). Some coal-processing plants and facilities may serve a number of remotely located mines, and OSM believes these coal-processing plants and facilities should be subject to the same performance standards as processing plants and facilities located on a specific permit area for a mine. Excluding such facilities would probably result in most, if not all, such facilities being located outside the permit areas for mines in the future in order to avoid regulation under the Act. This result would be clearly contrary to the intent of Congress as reflected in the definitions of "surface coal-mining operations'' and "surface coal mining and reclamation operations'' in Section 701 of the Act. OSM has the authority and obligation to prohibit adverse environmental and health and safety impacts of coal-processing plants wherever located.

2. That each State be allowed to establish a separate agency within the regulatory authority to control facilities off the minesite. Although this might be permissable under Section 503 of the Act, it may result in multiple and possibly uncoordinated regulations which may be inefficient. OSM will consider proposals for separate divisions within regulatory authorities having authority over these facilities in the context of State program submittals. Such proposals will be evaluated under the Standards in Section 732.15 of these regulations.

3. That OSM regulations apply to minesites, all offsite facilities, and all connecting transporting facilities. This would be impracticable and unnecessarily duplicative since OSM believes that other agencies adequately control transportation facilities and routes; 4. That OSM does not have the authority to require a permit for coal-processing plants and support facilities not within a permit area of a specific mine. OSM finds its authority to issue this regulation under Sections 506, 507, and 509 of the Act. These Sections require a permit, and as a part of the permit application a reclamation plan which shall meet the requirements of the Act. Section 701(28)(A) of the Act authorizes regulation of ". . . activities . . . including . . . processing or preparation.'' OSM believes the phrase "at or near the minesite'' immediately preceding the proviso in 701(28)(A) applies only to the "loading of coal for interstate commerce'' which immediately precedes it. Independent authority is found in Section 701(28)(B), which defines "surface coal mining operations'' to include ". . . other areas upon which are sited structures, facilities or other property or materials on the surface, resulting from or incident to such activities, . . .'' 5. That this Section enumerate all the types of facilities possibly covered by Section 701(28) of the Act, including all public roads on which coal is handled, all offsite coal stockpiles at public buildings, all wholesale and retail coal yards and all electric generating plant loading and storage facilities. The permit requirements of the regulatory scheme for coal-processing plants have not been expanded to include these facilities, because OSM has not been able to establish that the environmental risks from such facilities are of sufficient magnitude that permits should be required. At this time, OSM is only requiring regulatory authorities to extend their permit requirements as far into the stream of commerce as those activities over which mine operators and the coal handlers who directly serve them, such as coal processors, have or could have control of operations. This includes all facilities on the minesite, all facilities incident to the mine at or near the site, and coal-processing plants no matter where located. This in no way shall be interpreted as a determination that the Act limits OSM's authority or the authority of any regulatory authority to enforce the Act's provisions at any "surface coal-mining and reclamation operation'' included within the broadest interpretation of the language of Section 701(28) of the Act.

700 SECTION 785.22 In situ activities.

This Section describes the requirements for obtaining a permit for conduct of an in situ processing operation. Authority for this Section is found in Sections 102, 201, 501(b), 503(a), 504, 506(a), 507(b), 508(b), 508(a), 510(b), 515, 516, 517, and 701 of the Act. Under Section 701(28)(A) of the Act, "in situ'' mining of coal is deemed to constitute surface coal mining operations and under Section 506(a) of the Act, can only be conducted pursuant to permits under regulatory programs. Under Section 515 of the Act, environmental protection performance standards are applicable to those operations. Sections 785.22 implements the Act's permit requirements for these operations and ensures that they will be conducted in compliance with the special environmental protection performance standards for these operations in Part 828 of subchapter K. The reader should consider Section 785.22 together with Part 828.

{15096}The permit application should discuss all requirements under 30 CFR 817, which contains the environmental performance standards for underground mining activities. In addition, the in situ processing operation application must ensure that other applicable performance standards in subchapter K and the regulatory program which deal with these operations are described. Paragraphs 785.22(b) (1) (4) contain specific permit requirements to ensure that water and air quality standards are maintained. The protection of the hydrologic quality of surface and ground water in the mine permit area and adjacent areas must be achieved. The permit must address where and how exploration and injection holes will be drilled and cased so that the regulatory authority can determine that fluids, gases, or other materials injected into the coal seam will not escape into the hydrologic system. In a similar manner, the emission of residual materials or wastes from the processing operation must be isolated from the hydrologic resources and contained in approved structures or impoundments or until final disposal, or treatment of the materials is achieved. Appropriate measures to reduce the possibility of fires which would pose a public safety hazard during or following the in situ processing operation must be described as required by the regulatory authority. The control procedure for treating and containing harmful solids, liquids, or gases from the in situ processing operation to protect the welfare of the public and the surrounding environment is to be presented.

The permit application must describe the proposed equipment and techniques to be employed to monitor the impact the in situ operation will exert on water and air resources in compliance with the appropriate regulatory program.

A comment was received which recommended that subsidence control programs should be required with all permit applications for in situ processing operations. The Office did not make any modifications to the permanent program rules in response to this comment because subsidence control is found in 30 CFR 784.20 and 817.121 126. These provisions are a part of the general permit requirements applicable to these activities under Section 785.22 (b) and (c).