Part 817 contains the minimum performance standards and design criteria which would be applicable under a State or Federal program for underground mining activities. The organization of this Part parallels that of Part 816, the standards for surface mining, although some modifications were needed to reflect the distinct differences between surface and underground coal mining, including entirely new Sections for subsidence (Sections 817.121 817.126).

SECTION 817.1.

Scope.

Two commenters felt that Section 817.1 should be revised to encompass only surface operations and surface impacts incident to an underground coal mine. Section 507(b)(11) of the Act specifically authorizes concern for groundwater systems, and the Act is explicitly concerned about subsidence which results from underground mining techniques. Accordingly, the language of the regulations as proposed has been retained for complete scope of coverage.

SECTION 817.2.

Objectives.

The objectives are derived from Sections 102 and 516 of the Act.

SECTION 817.11.

Signs and markers.

This Section is substantially identical to Section 816.11, the corresponding Section of Part 816. The reader is referred to the portions of this preamble which discuss Section 816.11 for information concerning the technical basis and statutory authority for this Section. In addition to the Sections of the Act cited in those portions of the preamble, this Section is based on Section 516 of the Act. All comments and issues addressed in regard to Section 816.11, were also considered and similarily disposed of in preparing Section 817.11. Comments received on specific Paragraphs of Section 817.11 are addressed below:

Paragraph (d). Several commenters felt that the requirement for perimeter markers should be deleted in its entirety. The requirement for the use of perimeter markers is found in Section 701(17) of the Act. Several other commenters felt that Paragraph (d) should be amended. Surface perimeter markers above underground workings will not aid underground operations to stay within their permit areas, except for the surface operations and facilities associated with the mine. In addition, before mining the exact geographic location on the surface of the openings in an underground mine may be unknown or subsequently may be changed for purposes of avoiding bad ground, providing watertight closure, or for other unexpected conditions. Accordingly, paragraph (d) was amended to require persons who conduct underground mining activities to mark only the perimeter of all areas affected by surface operations or facilities. If the perimeters of such areas change, the perimeter markers must be adjusted accordingly.

Paragraph (e). Three commenters felt that buffer zone markers should be deleted in their entirety. While buffer zone markers may be applicable to surface activities, there appears to be no practical justification for markers in underground workings. Section 817.57(b) states that the areas not to be disturbed shall be designated a buffer zone and marked as specified in Section 817.11. Paragraph (e) was amended, and now requires buffer zones referred to in Section 817.57 to be clearly marked on the surface only to prevent disturbance by surface activities incident to underground mining. Underground marking is not required.

Paragraph (f). Many commenters felt that Paragraph (f) should be revised so as not to require marking surface areas with blasting signs over underground blasting, on the grounds that this may not be possible due to ownership of surface, and the surface effects of underground blasting would be minimal. The purpose of a blasting sign is to protect people who may inadvertently wander into the blast area. Inside an underground mine this is unlikely, due to other measures required to protect the opening to the mine. In addition, surface signs will do little to warn persons underground. Blasting that occurs on the surface at an underground mine will require appropriate warning devices and signs. Paragraph (f) was revised to reflect that it is limited to surface blasting.

SECTIONS 817.13-817.15 Casing and sealing of drilled holes.

These Sections are intended to ensure that boreholes, shafts, wells, and other accesses to underground mines are sealed, filled, cased, lined, or protected so as to ensure and protect the health, safety, and general welfare of the public, the quality of the environment, and potential land uses.I11Authorities for these Sections are found in Sections 102, 201, 501, 503, 504, 507, 508, 516, 517, 701 and 717 of the Act.

{15263}Following is a list of the technical literature used in the preparation of these performance standards:

1. Ciolkosz, E. J., and others 1973. Soil as a medium for the renovation of acid mine drainage. Office of Water Resources Research December 1973.

2. Doyle, William S. 1967. Mine sealing, deep coal mining_waste disposal technology. Noyes Data Corporation, Park Ridge, N.J.

3. Garrett, W. S., and Pitt, L. T. C. 1961.

Design & construction of underground bulkheads and water barriers, in 7th Commonwealth Mining & Metalurgical Congress, Johannesburg, South Africa. Vol. 3, 1283 1301.

4. U.S. Dept. of the Interior, Federal Water Quality Administration, 1970. New mine sealing techniques for water pollution abatement.

Haliburton Co., 163 pp.

5. Penrose, Jr., et al., EPA 68 010135. 1973. Laboratory study of self-sealing limestone plugs for mine openings. EPA 43019 73 011.

6. HRB-Singer, Incorporated. April 1971. Detection of abandoned underground coal mines by geophysical methods. Environmental Protection Agency and the Pennsylvania Department of Environmental Resources, Project 14010EHN.

7. Moebs, N. N. & Krickovic, S. 1970. Air sealing coal mines to reduce water pollution. BOMRI 7354.

8. Penrose, R. G., Jr., and Holubec, Igor, 1973. Laboratory study of self-sealing limestone plugs for mine operations. EPA 670/2 73 081.

9. Stoddard, C. K. 1973. Abatement of mine drainage pollution by underground precipitation. EPA 67012 73 092.

10. U.S. Environmental Protection Agency. 1973. Processes, activities, EPA 43019 73 011.

11. U.S.E.P.A. 1975. Criteria for developing pollution abatement programs for inactive and abandoned mine sites. EPA 440 9 75 008.

Sections 817.13 and 817.15 require that exploration holes or other underground openings be cased, sealed, or otherwise managed "as approved by the regulatory authority.'' The decision to amend the proposed regulations by insertion of the phrase "as approved by the regulatory authority,'' thus giving the regulatory authority wide latitude in the management and disposition of exploratory holes, shafts, wells, drifts, and other underground openings, was made on the basis of comments discussed below and for the following additional reasons:

These Sections provide for the sealing or managing of openings to prevent people and animals from entering the opening thereby reducing the safety hazards associated with unsecured underground openings. The casing and sealing requirements of these Sections will aid in protecting water resources and the prevailing hydrologic balance by preventing or controlling the discharge of acid mine water. The formation of acid water is a naturally occurring phenomenon which results from the oxidation of iron pyrites in the presence of water and air. Coal mining operations disturb the soil, rock material, and coal bed, thereby exposing the iron pyrites which can greatly enhance the formation of acid drainage. The acid water draining from the coal mine enters streams and greatly reduces the useability of these waters for human or industrial consumption. Sealing of openings is one method of controlling the production of acid water from mines. Abandoned drift mines generally can be sealed, enabling the flooding of a mine and thus stopping the oxidation of pyrite. (Doyle, 1976, p. 9 and Moebs, 1970, pp. 1 3, 16 20.) Sealing will also reduce the formation of acid water by preventing the entrance and flow of water and air into and out of the mine.

Many different types of sealing techniques were considered in the development of these Sections. No specific technique is universally acceptable in the literature for sealing all underground openings. (Doyle, 1976, pp. 19 32 and Halliburton, Co., 1970, pp. 5 6, 9 10, 20 21.) Mine sealings may involve construction of a physical barrier across a mine opening to prevent passage of air, water, or persons and wildlife. The ultimate water level behind the seal is, however, seldom controlled, and excessive pressure can build up, resulting in a mine seal blow-out. Sudden release of large quantities of water can have devastating downstream effects. (Doyle, 1976, p. 19. See Commonwealth v. Barnes and Tucker Co., 452 PA., 77, (1974).) Mine seals may be designed to retain large quantities of water, but seal leakage and failures generally occur from natural zones of weakness such as outcrop fractures. The natural rock and mineral surrounding the seal area is usually fractured, fissured, uneven, or unstable. As adopted, the regulations require that the seal must prevent the flow of water from the openings, except as otherwise authorized by the regulatory authority. Regulatory authorities should have the latitude to require the design of sealing and monitoring programs on a mine-by-mine basis so that catastrophic plug failures are prevented. Of course, if drainage from underground working is unavoidable, despite the use of the best available methods of sealing, then the resulting discharge to surface or groundwater must be controlled so as to achieve the applicable effluent limitations.

As evidenced above, the wide variety of situations likely to be encountered with regard to the managing of various underground openings make it appropriate that the regulatory authority be given discretion in what it may or may not require in properly managing these openings. Accordingly, the proposed regulations were modified by inserting the phrase "as approved by the regulatory authority'' where appropriate.

Numerous comments received on these Sections also indirectly influenced the decision to provide the regulatory authority with greater latitude in dealing with the management of holes, wells, and underground openings.

1. Several commenters objected to the proposed regulations requiring the permanent sealing or closing of drilled holes or wells, stating that in many cases such holes or wells could prove useful to surface owners as a water wells, or to an operator as water monitoring wells. One of the commenters stated that often permission to test drill on private land was contingent on leaving a water well for future use by the land owner. Some commenters suggested that the regulations by revised to allow more flexibility in the use of drilled holes and wells. These suggestions were accepted, with the request for more flexibility evolving into greater latitude for the regulatory authority, as well as the language dealing with the requirements for transfer of water wells being added to the appropriate Sections, to provide a complete picture of the requirements applicable to these openings.

2. One commenter objected to the proposed provisions of Section 817.13 requiring an underground operator to permanently close each borehole or well in the permit area, stating that this could be an extremely expensive operation for the operator with little or no actual benefit to the environment or public safety. The rationale presented by the commenter was sound. Accordingly, the comment was accepted and the regulations were changed to require the closing of only those holes uncovered or exposed by mining activities. Holes already on the site and unaffected by the operation need not necessarily be sealed, except those which may require sealing to minimize disturbance to the hydrologic balance of the area being mined.

3. Sections 816.14 and 817.14(b) deal with the temporary casing and sealing of drilled holes. One commenter suggested modification of this provision to include additional exceptions for (drill) holes which will be removed in whole or in part by subsequent mining. This comment was rejected on the basis that this Section deals specifically with two types of holes: (a) holes used to return coal processing waste or water to underground workings, and (b) holes used to monitor ground water. Both must have been specifically identified in the approved permit. As both types of holes have a specific function, there is no justification for waiving the requirements that they be sealed temporarily before use and protected during use. The importance of these holes is such that it would be to the operator's advantage to take all possible care in their location, and to ensure that they are securely cased and protected from damage. Leaving a proposed disposal well or monitoring well uncased and unprotected invites loss of the well before the end of its usefulness, and the subsequent cost of redrilling the well as required under the approved permit. Similarly, leaving a disposal well uncased would probably allow leach ate from the coal processing waste or water access to porous rock or aquifers above the disposal area, and cause possible significant harm to the hydrologic balance of the area resulting from this access. Leaving a monitoring well uncased could allow toxic surface runoff or toxic groundwater generated by the mine operation access to the groundwater being monitored, again resulting in possible significant harm.

{15264}Finally, locating these holes in an area where they would soon be removed by mining would in most cases be an unsound procedure in view of the importance of these holes, and the importance of their proper casing and maintenance as explained above.

4. Section 817.14(a) provides that all mine entries which are temporarily inactive but have a projected useful service be barricaded, fenced, and posted to identify the hazardous nature of the opening. Specific standards for barricades and construction materials to protect the mine entries were considered in the formulation of the regulation. However, the Office elected to provide generalized standards for mine entry protection.

The regulations also require that protective devices be periodically inspected and maintained in good operating condition. Various inspection periods were considered in the formulation of the regulations, but no set time period (e.g., monthly, weekly basis) was included because the inspection period depends on the hazard of opening, type of protective device, and condition of the opening. The number of inspections must be frequent enough to ensure that the protective devices are in good operating condition and safe.

5. One commenter suggested deletion of this Section, as well as Sections 817.13 and 817.15, on the basis that these regulations would be a duplication of existing MSHA regulations. This comment was rejected. Section 702(a)(2) of the Act states that nothing in the Act shall be construed as superceding, amending, modifying, or repealing the Federal Coal Mine Health and Safety Act of 1969 (83 Stat. 742). Sections 816.13 through 816.15 were proposed to protect the health, safety, and general welfare of the public, the quality of the environment, and potential land uses. MSHA requirements are aimed primarily at protecting mine worker safety. OSM believes that these regulations are complementary and do not supersede or modify the MSHA regulations.

SECTIONS 817.21-817.25 Topsoil

These Sections are intended to assure that persons conducting underground mining activities remove topsoil or other plant growth material prior to operations, store it for later use as a plant root medium and redistribute it in a manner that will protect, as much as possible, its productivity.

Authority for these Sections is found in Sections 102, 201, 501, 503, 504, 507, 508, 515, and 516(b)(10) of the Act. In response to public comments, these regulations differ from those for surface mining where comments were substantive enough to warrant different performance standards.

Section 817.21 sets forth the general requirements for handling topsoil. It requires that topsoil and subsoil be separately removed, saved, and segregated from other materials. When removed, the topsoil shall be immediately redistributed or stockpiled for redistribution at a later time except when the permittee can demonstrate to the regulatory authority that an alternative procedure will provide equal or more protection to the topsoil.

1. A number of commenters contended that the requirements for removal, storage and subsequent redistribution of topsoil were not supportable because of the extended periods of time (20 to 40 years) that will be required for storage. It was argued that the value of stockpiling topsoil for long periods of time is unknown and unlike surface mining, the disturbed area of an underground mine remains disturbed for a number of years, thus the stockpiled material will lose fertility, or organic matter and other desirable characteristics that were present when the material was stored. Since fertility losses, for example, nitrogen lost due to leaching, can be restored with additions of fertilizer (Vogel and Berg, 1973, pp. 189), organic matter can be restored with additives and micro-organisms lost during the stockpiling period will regenerate quickly when surface soil layers are returned to the surface (McCormack, 1974, pp. 151). The regulations were changed only to accommodate those occasions when the permittee demonstrates to the satisfaction of the regulatory authority that an alternative procedure will provide equal or more protection for the topsoil and the use of that alternate procedure is approved by regulatory authority.

2. Other changes in this section of the regulations are discussed in the Preamble for Section 816.21 because public comments were essentially identical; hence, to avoid redundance the reader is referred to the discussion contained in that section. The Office believes that Sections 817.22, 817.23, 817,24, and 817.25 should be substantially identical to the corresponding Sections of Part 816 since there are no identifiable distinctions between the functions of these Sections. The reader is referred to the appropriate Sections of the Preamble of Part 816 for information and discussion on the regulations of the Sections of the regulation of Part 817.

SECTIONS 817.41-817.57 Hydrologic Balance.

Introduction

With the exception of Section 817.50, all of these proposed Sections are substantially similar to their corresponding Sections in Part 816. The reader is referred to the appropriate portions of the Preamble for Part 816 for information concerning the technical basis, alternatives considered, and statutory authority. In addition to the Sections of the Act cited in those portions of the Preamble, these Sections of Part 817 are based on Section 516 of the Act. The Office considers effects on the hydrologic balance sufficiently similar in surface and underground mining to warrant substantially similar performance standards, except for the differences noted in the following discussion.

SECTION 817.41 Hydrologic Balance: General Requirements.

1. Legal authority for this section is Section 516 of the Act and those provisions cited in the preamble to Section 816.41. That portion of the Preamble presents a detailed explanation of the basis and purpose of most of the similar provisions of 817.41. However, some differences between surface and underground mining activities were noted, leading to some different provisions for Section 817.41.

2. A commenter believed that the regulations failed to adequately address basic differences between surface and underground coal mining operations. No specific changes in the performance standards were recommended by the commenter and without which the Office had no basis to evaluate the commenter's opinion. The Office considers the effects of many mining activities on the hydrologic balance to be sufficiently similar in surface and underground mining to warrant many substantially identical requirements under Sections 816.41 and 817.41, although the magnitude of effects may be quite diverse because of the differences between the operations. Because of those differences specification of differing requirements has been made in Sections 816.41(d)(2)(viii) and 817.41(d)(2)(viii) (xi) to account for differences of underground activities. The magnitude of hydrologic impacts of underground mining activities is described at the final EIS, pages B III 37 38, at USEPA, 1976 (a) pp. 51 57; pp. 88 94; and at Hill and Bates 1978, pp. 5 11 and 15 16.

{15265}3. A commenter thought that the word "prevent'' in Section 817.41(a) should be replaced by "minimize.'' The Office rejected this change, because the intent of Congress was to prevent long-term adverse changes in the hydrologic balance with respect to all operations in an affected area (see Section 516(b)(9)(B) of the Act).

4. Another commenter thought that Section 817.41(d)(2)(x) was inconsistent with Section 516(b)(1) of the Act. The Office rejected this comment, because the regulation does not absolutely require subsidence prevention as the commenter asserted, but merely subsidence control, as implemented through 30 CFR 817.50, 187.121 817.128.

5. A few commenters believed that Section 187.41(d)(2)(xi) was inconsistent with Section 516(b)(9) of the Act, by requiring prevention, rather than "minimizing'', of acid mine drainage. However Section 516(b)(9) of the Act clearly requires the operator to minimize the disturbances to the hydrologic balance by: " avoiding acid or toxic mine drainage . . .'' Consequently, the Office rejected the comment because the Act requires prevention of acid mine drainage. Further, Section 516(b)(12) of the Act prohibits gravity discharge of water from new drift mines working acid-producing or iron-producing coal seams.

6. Additional comments and issues relating to this Section that are identical to those raised as to Section 816.41 are discussed under the preamble to that Section.

7. Additional minor editorial changes to improve clarity from the proposed rules were made by the Office and were nonsubstantive in nature.

SECTION 817.42 Hydrologic balance: Water quality standards and effluent limitations.

A. Introduction

1. Legal authority for this Section is Section 516 of the Act and those provisions cited in the preamble to Section 816.42. That portion of the preamble presents a more detailed explanation of the general basis and purpose of most of the specific provisions established in this Section.

2. This Section specifies water pollution control collection and treatment requirements, and contains minimum water quality standards and effluent limitations for underground coal mining activities. A general discussion of the purposes and objectives of this Section was at 43 FR 41744 41746 (September 18, 1978). To provide clarity to the reader, the Section was restructured from the proposed version to include discrete alphanumeric paragraphs.

3. Surface effects of underground mining and underground mine workings may result in adverse effects on surface water systems (USEPA, 1976 (a) at 88). These effects may result from acid mine drainage flow into streams (H.R. Rep. No. 95 218. 95th Cong., 1st Sess. at 58, 1977; Kosowski, 1973, 83 pp.; Caruccio, 1968 at 107 151; Musser, 1965 at sheet 4) from subsidence of the land surface or underground workings which allows surface drainage to be diverted into mine workings (Dunrud, 1976 at 2 and 34), and from erosion and water quality degradation as a result of waste material removed from the workings and placed on the surface facilities.

Water pollution control for underground coal mining operations is largely restricted to at-source methods for reducing water inflow into the mine workings and to treatment of collected mine drainage and surface runoff. Generally water quality analyses have not indicated significant differences between untreated waste water from surface and underground operations in similar geologic settings. (USEPA, 1976 (a) at page 53). Therefore, as required in EPA's Effluent Limitation Guidelines for the Coal Mining Point Source Category (40 CFR 434), the same numerical discharge limitations apply to surface and underground coal mining operations. These effluent limitations, with appropriate modifications to meet the intent of the Act, have been incorporated into Section 817.42(a)(2).

4. The preamble to Section 816.42 describes the general provisions relating to water quality standards and effluent limitations, which essentially parallel those of Section 817.42. Some differences exist between the nature of discharges (i.e., principally source and duration) between surface and underground coal mining operations.

First, as an alternative to passing all surface drainage and waters from underground workings through a sedimentation pond or series of sedimentation ponds, Section 817.42(a) allows for use of a "treatment facility'' (e.g., a package neutralization device). Due to the fact that some operations may have very limited surface facilities and waters from the mine workings may have very low total suspended solids concentrations, the use of a sedimentation pond may not be necessary and a small-scale treatment facility may be best suited for treating discharges from coal mining operations to meet applicable effluent limitations.

With respect to the criteria for the removal of sedimentation ponds and treatment facilities, Section 817.42 includes criteria similar to Section 816.42 for surface drainage; however, for discharges from underground workings, Section 817.42 also requires that sedimentation ponds and treatment facilities remain in place until either the discharge continuously meets the effluent limitations without treatment or until the discharge has permanently ceased. This additional requirement is necessary, given the potential for long-term discharges of waters from underground workings, principally by gravity drainage. See H.R. Rep. No. 95 218, 95th Cong., 1st Sess. at 127 (1977).

Differences between the two Sections also exist with regard to the exemption to the requirement for use of sedimentation ponds or treatment facilities to treat surface drainage. Section 817.42 not only requires the discharge to show that such ponds or facilities are not necessary to meet effluent limitations or applicable State and Federal water quality requirements and that the disturbed, surface drainage area within the total disturbed area is "small,'' but also that there is no mixture of surface drainage with discharges from the underground mine workings. For exemptions to the treatment of discharges solely from underground mine workings, Section 817.42 requires that a demonstration be made that treatment is not necessary to meet the effluent limitations or applicable State and Federal water quality requirements and that there is no mixture of drainage from underground workings with drainage from surface areas. These additional criteria for the exemption to the requirement for sedimentation ponds or treatment facilities provides that mixing of waters with potentially very different qualities, volumes, and treatment needs will not occur.

Another important difference between Sections 816.42 and 817.42 is the definition of "disturbed areas.'' Specifically, Section 817.41 further limits the definition of this term to exclude not only areas affected by surface operations in which only diversion ditches, sedimentation ponds, or roads are located and the upstream areas are not otherwise disturbed, but also to exclude surface areas affected by underground operations, unless those areas also are affected by fills, support facilities, or other major activities incident to underground mining activities. This limitation eliminates surface areas overlying underground mine workings from treatment as "disturbed,'' in terms of the requirement of collecting all surface drainage from such areas and passing that drainage through a sedimentation pond, a series of sedimentation ponds, or a treatment facility. However, it should be noted that the exemption from the collection and treatment requirements for surface drainage from areas overlying underground mining does not apply to water which, due to subsidence or other causes, percolates from the surface down and into underground mine workings. Such drainage is required to be handled or discharged from underground workings under the second sentence of the main text of Section 817.42(a) and is subject only to the exemption of Sections 816.42(a)(1) and (2)(ii).

{15266}B. Analysis of Comments

1. Most comments received with respect to Section 817.42 were virtually identical to comments received for Section 816.42. The disposition of those comments is discussed in the preamble to Section 816.42. The few comments directed only to Section 817.42 are discussed below.

2. Section 817.42(a) has been slightly modified to provide additional clarity with respect to the criteria for sedimentation pond and treatment facility removal. More specifically, the language with regard to this subject now states that sedimentation ponds and treatment facilities for surface drainage from the disturbed area shall be maintained until the disturbed area has been restored and the vegetation requirements of Sections 817.111 817.117 are met. In addition, the criterion for pond and facility removal in the proposed rules, of meeting ambient surface water quality requirements, has been modified to require compliance with applicable State and Federal water quality standards requirements for the receiving stream. This specific change is discussed in more detail at the preamble to Section 816.42.

3. As to the criteria for removal of sedimentation ponds and treatment facilities for discharges from underground workings to surface waters, the language of the criterion for compliance with the effluent limitations has been slightly revised to require that the discharges continuously meet the effluent limitations. This modification provides additional clarity with regard to what is required and will also provide for greater assurance that the hydrologic balance will be protected over the long-term, as required by the Act.

I114. The proposed provisions of Section 817.42 relating to exemptions to the requirements for sedimentation ponds or treatment facilities have been revised to a small extent to provide for clarity. In addition, the exemption has been modified to include as a criterion, the requirement that no mixture of surface drainage and drainage from the underground mine workings takes place. This modification in the exemption criteria appeared necessary, based on the high probability for treatment of problems resulting from the mixing of waters with potentially very different quality, volumes, and thus, treatment needs. In addition, it assures that monitoring of mixed discharges, a very difficult task, is avoided.

5. A commenter stated that the requirements to collect all drainage from the disturbed area and pass this drainage through a sedimentation pond or treatment facility and to apply EPA's Effluent Limitation Guidelines for the Coal Mining Point Source Category to the discharge from this pond or facility, actually constituted applying EPA's effluent limitations for active mining areas to drainage from a "surface construction area.'' The commenter also stated that this requirement essentially amended the regulations promulgated under the Clear Water Act and, therefore, violated Section 702(a) of the Act.

The effluent limitations of Section 817.42(a)(2) are essentially identical to those of EPA for the Coal Mining Point Source Category (USEPA, 1977a). EPA's Effluent Limitations apply specifically to Coal Preparation Plants and Associated Areas, Acid or Ferruginous Mine Drainage, and Alkaline Mine Drainage. As defined in 40 CFR 434.11, General Definitions, "coal preparation plant'' means "a facility where coal is crushed, screened, sized, cleaned, dried, or otherwise prepared and loaded for transit to a consuming facility.'' The term "coal preparation plant associated areas'' is defined as the "coal preparation plant yards, immediate access roads, slurry ponds, drainage ponds, coal refuse piles, and storage piles and facilities.''

Based on these definitions, it is clear that the EPA effluent limitations are intended to include treatment of point source runoff from disturbed areas for underground mines as defined in Section 817.42(a). Since the Office is legally bound to implement regulations for water discharges which are at least as stringent as those of EPA, the application of effluent limitations of Section 817.42(a)(2) to drainage from disturbed areas, as defined in that Section, does not constitute a violation of Section 702.

SECTION 817.43-817.44 Diversions.

The authority, basis and purpose for these Sections are the same as for Sections 816.43 816.44, and, in addition, Section 516, of the Act. Comments received on these Sections were similar to those for Sections 816.43 816.44. The preamble discussion to Sections 816.43 816.44, therefore, also serves as the Office's explanation of disposition of comments to Sections 817.43 817.44.

SECTION 817.45 Hydrologic balance: Sediment control measures; and 817.46 Hydrologic balance: Sediment ponds.

These Sections are substantially identical to corresponding Sections in Part 816. The reader is referred to the appropriate portions of the preamble for Part 816 for information concerning the technical basis, alternatives considered, and statutory authority. In addition to the Sections of the Act cited in those portions of the preamble, these Sections of Part 817 are based on Section 516 of the Act. While the Office considers the effects on the hydrologic balance to be sufficiently similar in surface and underground mining to warrant substantially identical performance standards, public comment was invited on how the differences in the effects of these types of mining should appropriately be reflected in the regulations.

SECTION 817.46(a)(1)

Commenters said the requirements to construct a sedimentation pond before any disturbance to the area is unnecessary for underground mining operations. The commenters state that underground mining operations do not create situations where water would be polluted.

Sedimentation ponds are required prior to any mining disturbance of the disturbed area. Generally, underground mining activities include an exploratory drilling program, excavating and developing a bench or a working area or constructing mine portals or shafts, excavating access and haulage roads from the mine site to a power source, and construction of a tipple and coal preparation plant. In view of these surface disturbances, a sediment pond must be included to collect the sediment from these activities. Therefore, the Office has retained this Section.

The preamble discussion for Section 816.46 is incorporated herein by reference.

SECTION 817.47 Hydrologic balance: Discharge structure.

The authority for this Section is found in Sections 516(b) (7), (9), (10), and (11) of the Act, in addition to all Sections of the Act cited earlier in the preamble to Section 816.47.

{15267}The basis and purpose of this Section are the same as those offered earlier in this preamble for Section 816.47 except that the references to other Sections should be to the comparable provisions for underground mines. All public comments discussed in the portion of the preamble relating to Section 816.47 were considered and similarly disposed of, with respect to Section 817.47, because the Office believes no difference in the mining methods requires differences in discharge structure requirements between structures associated with surface mining and those associated with underground mining.

SECTION 817.48 Hydrologic balance: Acid-forming and toxic-forming materials.

(1) The authority for this Section is Section 516 of the Act, and authority cited under the preamble to Section 816.48. To account for underground development waste which is unique to underground mining activities, this Section is adopted to apply to acid-forming and toxic-forming underground development wastes and spoil. The basis and purpose for this Section are generally the same as those described for Section 816.48.

(2) The issues raised and comments received regarding this Section were similar to and discussed under the preamble to Section 816.48.

SECTION 817.49 Hydrologic balance: Permanent and temporary impoundments.

(1) The authority for this Section is found in Section 516(b) (5), (6), (7), (9), (10) and (11) of the Act, in addition to all Sections of the Act cited in the preamble discussion of Section 816.49. The basis and purposes of this Section are the same as for Section 816.49 of this Subchapter. All public comments discussed in the portion of the preamble relating to Section 816.49 were considered, and similarly disposed of with respect to Section 817.49 because there is no basis for a difference in the permanent and temporary impoundment requirements for structures associated with surface mining or the surface effects of underground mining.

In addition to the comments discussed in the Preamble portion relating to Section 816.49, one commenter recommended that Section 817.49(a) be eliminated from the final rules because the major concern with permanent impoundments focused exclusively on those impoundments left after surface mining operations. This was not accepted and the requirements covering any permanent impoundments associated with underground mining operations were retained in the final rules. It is anticipated that there will be cases when impoundments are constructed to provide a water source for underground mining operations and some of these impoundments may be left as permanent structures. If this occurs, these regulations will apply to the structures, whether or not the regulations of the Corps of Engineers or Environmental Protection Agency apply.

SECTION 817.50 Hydrologic balance Ground water protection.

1. Section 817.50 provides the protection of the mining area's hydrologic balance by requiring that mining operations be conducted so as to preclude uncontrolled discharge of mine water. Uncontrolled discharges (mine drainage) have been a primary cause of adverse impacts upon water quality and ecology in the past (Biesecker and George, 1966, pp. 5 8; Broley, 1954, 3 pp.; Grubb and Ryder, 1972, pp. 16 58; Sidio and Mackenthun, 1963, pp. 16 21; Turner, 1958, pp. 45 46; Warner, 1973, p. 227).

However, this problem can be controlled in underground mines through the proper location, design, construction, utilization, and sealing of drifts, adits, and slopes (EPA, 1973b, pp. 30 34). Use of some of these methods to control drainage during the active mining phase is to be supplemented with collection and conveyance of drainage to treatment facilities as necessary to comply with applicable standards and limitations prior to discharge to receiving streams.

The outright prohibition on gravity discharges at Section 817.50(c) from certain drift mines is required under Section 516(b)(12) of the Act.

2. The Office considered requiring all drift mines which are opened after the effective date of this Part to comply with Section 817.50(c), rather than making the requirements applicable only to mines opening after approval of the State or Federal program. The Office believes that until a regulatory authority is identified and approved by the Secretary and empowered to administer a regulatory program, it will be unfair to the operator to make this provision apply. Determination of whether a coal seam involved is "acid-producing'' or "iron-producing'' would not have been made until a permit application was reviewed by the regulatory authority.

3. A few commenters suggested that for drift mines which lie above drainage, that solid coal barriers of 50 feet plus one foot of potential hydrostatic head at all points around and above the workings be required. The Office recognizes that certain States require such standards as efforts to control acid drainage. However, the Office rejected this proposal, because such site-specific techniques are not appropriately applicable nationwide, particularly in the west where underground mining may not produce acid drainage. The provisions of Sections 817.41, 817.42, 817.48, 817.50, and 817.55 aree extensive enough in scope to adequately cover the drainage situations raised by the commenters. Of course, Section 516(b)(12) of the Act and Section 817.50(c) specifically prohibit a gravity discharge of water from new drift mines.

SECTION 817.51 Underground mining: Protection of ground water recharge capacity.

As explained in the preamble to the proposed rules (43 FR 41780), the Office did not believe it appropriate to promulgate a regulation concerning restoration of recharge capacity with respect to underground mining activities. However, comments were solicited as to whether any requirements may be needed to protect the recharge capacity of water bearing formations from underground mining activities. One comment was received on this point in support of deleting this Section. The Section has not been included in the final rules.

SECTION 817.52 Hydrologic balance: Surface and ground water monitoring.

(1) Authority for this Section is derived from the same Sections of the Act as for Section 816.52 and from Section 516 of the Act.

(2) Most comments and issues relating to this Section were similar to those raised as to Section 816.52 and are discussed in the Preamble to that Section.

(3) Several commenters questioned whether quantity monitoring of surface discharges from underground mine permit areas following reclamation is necessary, in view of the small area disturbed relative to surface mining operations. The Office concurs with the commenters that, where the surface disturbed areas is relatively small the impact to the hydrologic balance following mining should be negligible. Where this is the case and the disturbed areas have been regraded and stabilized, it makes little sense to require the monitoring of surface flows (quantity) even though quality would need to be continuously monitored. However, no change in wording was deemed necessary, as Section 816.52(b)(2) provides for sufficient flexibility to the regulatory authority to limit or reduce water quantity monitoring in the circumstances suggested.

SECTION 817.53 Hydrologic balance: Transfer of wells.

Authority for this Section is Section 516 of the Act and those provisions cited in the preamble to Section 816.53. That portion of the preamble also explains the general basis and purpose of this Section. All comments received and issues raised were similar to those comments and issues on Section 816.53 and are discussed in the preamble to that Section.

SECTION 817.54 Hydrologic balance: Water rights and replacement.

1. Authority for this Section is the same as that for Section 816.54, and in addition Section 516 of the Act. Most comments and issues raised as to this Section were the same as those raised as to Section 816.54 and are discussed in the preamble to that Section.

2. Several comments questioned whether Section 717 of the Act authorizes Section 817.54 as a regulation of the effects of underground mining on underground water. Since it was the intent of Congress for this Act to apply to underground mining as well as to surface mining, the Office has decided not to delete the Section.

Section 515(b)(10) of the Act requires surface mining to "minimize the disturbances to the prevailing hydrologic balance at the mine site and in associated offsite areas and to the quality and quantity of water in surface and ground water systems. . . .'' Section 508(a)(13) requires mining and reclamation plans, in general, to provide for protection of surface and ground waters, including "rights of present users to such water.'' Sections 516(b)(10) and 516(d) of the Act incorporate provisions of Section 508 and 515, by referencing regulation of underground mining activities and allowing for any "distinct differences'' in underground mining. There are no "distinct differences'' justifying elimination of Section 817.54.

If anything, underground mining can have a more severe impact on users of surface and ground water than surface mining activities, as is evident from the technical literature cited in the preamble to the proposed rules, 43 FR 41780 (discussion of Sections 817.41 817.57) and 41784 41785 (GAI, 1977, pp. 22 23; Dunrud, 1976, p. 61). Therefore, the Office interprets Section 717 of the Act to require establishment of this performance standard since underground mining can have such impacts on users of water.

3. A commenter felt that the Section should be changed to explicitly provide that the operator would have to replace the water supplies of permittees for grazing on public lands, if the mining operation diminished those supplies. The Office rejected this proposal as it believes, first, that permittees' water supplies for grazing would be included under ". . . water supply of an owner of interest,'' and, second, is specifically covered under provisions of Section 715 of the Act, and 30 CFR 742.

SECTION 817.55 Hydrologic balance: Discharge of water into an underground mine.

1. Section 817.55 provides protection of the hydrologic balance of a mining area by restricting the discharge or diversion of water from surface mines or from one underground mine area into other underground mine workings. The basic authority for this Section is the same as for Section 816.55 and, in addition, Section 516 of the Act. Section 817.55(d) was inserted to recognize the possible transfer of water from one underground mine area to another. Co-mingling of surface water and ground water or from two or more sources of ground water may unexpectedly occur as a result of a strip mine intercepting an underground mine or waters from one underground mine breaking through into another (USEPA, 1973(b), p. 207; Commonwealth of Pennsylvania v. Harmar Coal Co., PA Sup. Ct. (1974). For example, the elevation of shallow ground water in a southeastern Ohio surface mine area dropped about 100 feet as a result of water breaking into a dry mined out area below (Bureau of Mines, 1977b, pp. 50 51).

2. The issues raised by comments on Section 817.55 regarding (1) the need for approval by the Mine Safety and Health Administration; and (2) the need for an exception for pH effluent limitations in the discharge into underground workings, are identical to issues raised under Section 816.55, and the same modifications have been made to both Sections.

3. A commenter questioned the meaning of the opening paragraph for Section 817.55, as to whether it dealt with underground workings in the same mine or others. The commenter felt that the "blanket approach'' was not applicable to the entire underground mining industry. The Office recognized this language problem and, therefore, specified "surface'' mines in the final rule. The Office's intent is discussed adequately in the preamble to Section 816.55 it excludes diversions and discharges from either surface and underground mines into other underground mines, unless certain pollution abatement criteria are demonstrated to the satisfaction of the regulatory authority.

SECTION 817.56 Hydrologic balance: Postmining rehabilitation of sedimentation ponds, diversions, impoundments, and treatment facilities.

The authority for this Section is found in Sections 516(b)(4), (5), (6), (7), (9), (10), and (11) of the Act in addition to all Sections of the Act cited in the preamble discussion of Section 816.56.

The basis and purpose of this Section are the same as for Section 816.56 of this Subchapter. All public comments discussed in the portion of the preamble relating to Section 816.56 were considered, and similarly disposed of, with respect to Section 817.56, because the Office believes there is no difference between surface and underground mining which would justify varying rehabilitation requirements between structures associated with surface mining and underground mining.

SECTION 817.57 Hydrologic balance: Stream buffer zones.

1. Authority for this Section is the same as for Section 816.57 and, in addition, Section 516 of the Act. Most comments and issues raised relating to this Section were similar to those raised as to Section 816.57 and have been discussed in the preamble to Section 816.57.

2. A few commenters questioned the applicability of the buffer zone provisions to underground mines. One alternative considered was deletion of this Section on the basis of comments that underground mine workings do not affect surface streams. A second alternative would have left the provision as proposed, because both surface operations and underground mine workings located too close to streams may cause problems. A third alternative considered was to modify the provision to recognize any differences between surface and underground mines as to their effects on streams and the need for buffer zone markers in the underground workings.

The Office rejected the first two alternatives in favor of the third. Biologically significant streams need protection from surface disturbances of underground mines caused by coal dust and sediment production along haul roads, the discharge of mineralized water from processing plants or underground sumps, and the disruption of overland-runoff patterns caused by ditching (Karr and Schlosser, 1977, pp. 16-29; Grim and Hill, 1974, p. 102; Weigle, 1965, 23 pp.). Because of the adverse environmental effects to streams which may be generated by surface operations and facilities, the Office decided to require the use of stream buffer zones under Section 516 of the Act. The Office believes that Sections 817.121 817.126 (subsidence control) adequately protect surface streams from adverse effects of underground mine workings themselves.

SECTION 817.59 Coal recovery.

This Section addresses two persistent problems of coal mining: (1) The loss of coal resources when mining does not recover all the coal at a particular mining site; and (2) Recurrent environmental degradation when land is reopened for mining to recover the remaining coal.

{15269}The authority for this Section is found in Sections 102, 201, 501, 503, 504, 510, and 516 of the Act.

Discussion of specific language and alternative language to require fixed percentages of coal recovery are in the preamble discussion of Section 816.59 to which the reader is referred for a discussion of issues relevant to this Section.

One comment was received suggesting that specific percentages of coal recovery be required. This comment was rejected for the reasons explained in the preamble to Section 816.59.

One commenter suggested that OSM should not promulgate a standard for coal recovery of underground mining, on the grounds that the Act did not authorize Federal coal recovery standards for deep mines, citing Section 517(a) of the Act limiting inspections to strip mines. OSM has rejected this suggestion on the basis that Section 515(b)(1) itself, and as applied through Section 516(b)(10), requires coal recovery standards for deep mines. Moreover, OSM feels that Section 517(a) of the Act authorizes inspections of underground mines. Section 517(a) authorizes inspection of "surface coal mining and reclamation operations.'' This phrase is defined by Section 701(28) of the Act and Section 700.5 of these regulations to include the surface effects of underground mining. The amount of coal recovered has an effect on the surface in that maximum recovery can preclude the need to redisturb the surface at a future date, a primary objective of this Section of the regulations. Maximum recovery from an underground mine may be a smaller percentage of the total coal than would be recovered using surface mining methods if such methods were feasible for the specific site.

It is understood that the operator must strike a balance between this requirement to maximize coal recovery and the requirements of Sections 817.121 .126 dealing with subsidence control. Both the coal recovery plan and subsidence damage control plan must be approved by the regulatory authority.

SECTIONS 817.61-817.68 Use of explosives.

These Sections are promulgated under the authority of Sections 102, 201, 501, 503, 504, 507, 510, 515, 516, and 719 of the Act. Most of the provisions of these regulations are substantially identical to the blasting performance standards regulations for surface mining activities (Sections 816.61-816.68). To that extent, the reader is referred to the appropriate portions of the preamble for Part 816, which contains the rationale, in general, for parts of Sections 817.61-817.68 which are not specifically discussed in the preamble to Part 817.

SECTION 817.61 Use of explosives: General requirements.

Numerous comments were received which pertained specifically to Section 817.61. As a result of these comments, the following alternatives were considered and alternatives two, three and four were adopted by the Office.

1. Retain the wording of Section 817.61(a) as proposed.

I112. Revise Section 817.61 to restrict Section 817.61 817.68 to only surface blasting activities incident to underground mining, including construction of initial rounds of slopes and shafts. As a result of such an addition, portions of Section 817.65(a) of the proposed regulations would become unnecessary.

3. Delete reference in Section 817.61(a) to Sections 816.61 816.68.

4. Delete Section 817.61 of the proposed regulations, which required a blasting schedule for surface blasting incident to underground mining.

Alternative 2_ Numerous commenters have pointed out an obvious ambiguity in the proposed blasting regulations for underground mining. Although proposed Section 817.65(a) stated that the provisions of that Section applied only to blasting conducted on the surface, that distinction was not made for the rest of Sections 817.61 817.68. Adoption of alternative two clarified the Office's intent not to regulate blasting performed underground, because this activity is adequately controlled by MSHA. By adding Section 817.61(a) to the final rules, proposed Section 817.65(a) was made unnecessary and was changed in the final rules.

Alternative 3 _In response to comments that underground mining activities should not be subject to all requirements of Sections 816.61 816.68, the Office revised Section 817.61(a) so that the final rules require underground mining activities to comply only with Sections 817.61 817.68, which have been appropriately tailored solely for those activities.

Alternative 4 _Several commenters objected to the requirement of the proposed rules for a blasting schedule for surface blasting incident to underground mining. The Office agrees because it was not the intent of Congress to require a blasting schedule for this type of blasting. Section 817.65(a), requiring a 24 hour notification for blasts of this type, is adequate protection for the public, given the limited frequency and duration of surface blasting associated with underground mining activities.

One commenter pointed out that MSHA's proposed rule, Section 77.1308(i), will allow blasting at night in slopes and shafts at underground operations except for the initial rounds on the surface. The Office finds no conflict with MSHA's proposed rule, as the Office does not regulate blasting under Part 817 inside underground mine workings. Initial rounds of slopes and shafts have been provided for in final Section 817.61(a) which regulates surface blasting for underground mining.

SECTION 817.62 Use of explosives: Preblasting survey.

A few commenters recommended limiting the area in which preblast surveys are required for surface blasting associated with underground mining to a one-half mile radius from the blasting activities, as provided for in Section 515(b)(15) of the Act. The Office accepted these comments, because there was no apparent basis to expand the area for mandatory pre-blast surveys from surface mining (one-half mile) for underground mines (any portion of the mine).

SECTION 817.65 Use of explosives: Surface blasting requirements.

(1) Several comments were received concerning the 24 hour notice required for surface blasting in support of underground mining in the proposed rules. As a result of these comments the following alternatives were considered and alternative 2 was adopted.

1. Retain the wording as published in the proposed regulations.

2. Modify Section 817.65(b) by inserting "approximately'' in front of "24 hours'' and inserting "surface'' in front of "blasting event.''

3. Change the Section to require a notice at least 10 days, but not more than 20 days, prior to blasting.

4. Delete the Section.

Alternative 2.

One commenter objected that the notice of blasting was required to be given exactly 24 hours prior to blasting. As this would not be necessary or practical if there are a large number of surrounding residents to be notified, the word "approximately'' has been added to qualify the advance notice requirement.

Alternative 4.

The same commenter also questioned the Office's authority to promulgate blasting regulations for underground mines, because blasting is not one of the subjects listed in Section 516(d) of the Act. However, Section 516(b)(10) of the Act makes all of the performance standards of Section 515 of the Act applicable to "other surface impacts'' not specified in Section 516(b) of the Act, thereby incorporating, by reference, Section 515(b)(15) of the Act. Further, Section 516(d) of the Act makes the permit application requirements of Title V of the Act applicable to underground mining. Under the permit application requirements at Section 507(g) of the Act, there is a requirement that the applicant establish how the blasting provision of 515(b)(15) of the Act will be met. Therefore, the Office does have the authority to promulgate rules for surface blasting at underground coal mines that are in accordance with Section 515(b)(15), as modified so as to accommodate any distinct difference between surface and underground coal mining.

{15270}Surface blasting associated with underground coal mining, as compared to surface mines, commonly involves a lesser quantity of explosives and is not of such a continuing nature as for surface mining activities, because smaller surface areas of overburden removal are involved. However, underground mining activities do involve substantial blasting for road or facilities construction, "facing-up'' operations for installation of adits, and initial blasts for slopes and shafts. The environmental impact of these generally smaller blasts, conducted for a shorter time period, is less severe than the legislative history indicates for surface mining blasts. Therefore, the provisions of Section 515(b)(15)(A) of the Act required modification as applied to underground mining activities. In the Office's judgment, a notification of blasting approximately 24 hours in advance of the blast will provide adequate notification for the infrequent type of blasting involved.

Alternative 3.One commenter recommended that notifying residents within 1/2 mile at least 10 days, but not more than 20 days, prior to any blasting event be required only for "facing-up operations,'' on the theory that this modification would conform Part 817 to proposed Section 816.64(a). Section 816.64, however, requires publishing a blasting schedule in the local newspaper for all types of blasting. Because there was no basis shown by the commenter to distinguish among the types of blasting in surface work in underground min ing, the Office rejected the comment.

(2) 817.65(d).

One commenter requested clarification as to which underground mining activities require maintenance of signs under Section 817.11(f). In response, the Office has clarified the wording of this Section to specify persons who conduct surface blasting incident to underground mining. The commenter correctly noted that, as proposed Section 817.65(d) would have required any person conducting underground mining activities to comply with all of the provisions of Section 817.11(f).

SECTION 817.68 1. Use of explosives: Record of blasting operations.

1. A few comments specifically directed to the blasting record requirements of proposed Section 817.68 were received. Some commenters felt that it was unclear whether Section 817.68 applied to blasts fired underground. However, the wording of Section 817.61(a) in the final rules makes it clear that only blasts fired on the surface and initial rounds in construction of shafts and adits are subject to the provisions of Section 817.68.

(2). One commenter suggested that a threshold size of blast be specified below which a blasting record is not required. The Office rejected this suggestion. As is discussed in detail in the preamble to Section 816.61, blasting involving the use of more than five pounds of explosives needs to be closely regulated, because of the potential for damage and harm to the public. In order that the regulatory authority can properly evaluate whether the requirements of the regulations specifying procedures and standards for blasting of over five pounds are being complied with, it is necessary that the identity, location, duration, types, and amounts of explosives used be recorded. These items will establish whether the operator, is, in fact, blasting with more or less than five pounds. Furthermore, the number and types of holes and description of delays used are appropriate means for cross-checking the claims of the operator in the total weight of explosives used per blast. Finally, other data required by Section 816.68 are useful to establish a historical data base by which the operator can predict how to conduct blasting over time.

SECTIONS 817.71-817.74 Disposal of underground development waste and excess spoil.

Authority for these Sections is found in Sections 102, 201, 501, 503, 507, 508, 510, 515, and 516 of the Act.

The basis and purpose of these Sections are the same as for Sections 816.71 816.74 of this Subchapter. All public comments discussed in the portion of the preamble relating to Sections 816.71 816.74 were considered and similarly disposed of with respect to Sections 817.71 817.74, because the Office believes that the differences between underground and surface mining do not justify differences in the coal development waste and excess spoil disposal requirements between structures associated with surface mining and those associated with underground mining. In effect, the Office believes that disposal of underground development wastes pursuant to these Sections will provide, and is necessary to insure, the same level of protection for the environment and public health and safety as is required for the disposal of excess spoil associated with surface mining.

The reader is referred to Sections 816.71 816.74 for a discussion of comments and issues relative to Sections 817.71 817.74.

SECTIONS 817.81-89 Coal processing waste banks and disposal of non-coal waste.

Authority for these Sections is found in Sections 102, 201, 501, 503, 504, 507, 508, 510, 515, and 517 of the Act.

The basis and purpose of these Sections are the same as for Sections 816.81 816.89 of this Subchapter. All public comments discussed in the portion of the preamble relating to Sections 816.81 816.89 were considered and similarly disposed of with respect to Sections 817.81 817.89, because OSM believes that the differences between surface and underground mining do not justify differences in the waste disposal requirements between structures associated with surface mining and those associated with underground mining.

The reader is referred to Sections 816.81 816.89 of the preamble for a discussion of comments and issues relative to Sections 817.81 817.89.

SECTIONS 817.91-817.93 Coal processing waste: Dams and embankments.

The authority for these Sections is found in Section 516 of the Act, in addition to Sections of the Act cited in the preamble discussion of Sections 816.91 816.93.

The basis and purpose of these Sections are the same as for Sections 816.91 816.93 of this Subchapter. All public comments discussed in the preamble relating to Sections 816.91 816.93 were considered and similarly disposed of, with respect to Sections 817.91 817.93, because OSM believes that the differences between surface and underground mining do not justify differences in the coal processing waste dam requirements between structures associated with surface mining and those associated with underground mining.

SECTION 817.95 Air resources protection.

The basis and purpose of this Section are the same as for Section 816.95 of this Subchapter. All public comments discussed in the preamble to Section 816.95 were considered and similarly disposed of with respect to Section 817.95. The statutory authority for this Section is the same as that for 816.95 with the addition of Section 516 of the Act. Consideration of whether underground mines should be regulated differently than surface mines with respect to air pollution control is discussed in the preamble to 30 CFR 784.26. Fugitive dust control techniques are the same whether the dust originates from surface or underground mines and therefore Section 817.95 is identical to Section 816.95.

SECTION 817.97 Protection of fish, wildlife, and related environmental values.

This Section is essentially identical to the corresponding Section of Part 816. Refer to the preamble to Section 816.97 for information concerning the technical basis, alternatives considered, statutory authority and responses to comments addressing that Section. The discussion in the preamble supporting Section 816.97 also applies to Section 817.97. In addition to those authorities listed in preamble to Section 816.97, this Section is also supported by Section 516 of the Act.

The only issue raised by commenters in this Section which differed from Section 816.97 centered around the geographic area to be studied and which plans would be required for purposes of fish and wildlife resources protection. For a discussion of those differences see Sections of the preamble dealing with area to be studied, and fish and wildlife plans, Sections 779.20(a), 780.16(a)(1), 783.20(a), and 784.21(a)(1). Once the geographic area of study has been established and the fish and wildlife plan approved, the performance standards are identical.

No other differences in requirements of this Section and Section 816.97 were identified.

SECTION 817.99 Slides and other damage.

This proposed Section is substantially identical to the corresponding Section of Part 816. The reader is referred to the appropriate portions of the preamble for Part 816 for information concerning this Section. In addition to the Sections of the Act cited in those portions of the preamble, this Section is based on Section 516 of the Act. The Office considers the risks of slides to be sufficiently similar in surface and underground mining to warrant identical performance standards.

SECTION 817.100 Contemporaneous reclamation.

The authority for this Section is found in Sections 102, 201, 501, 503, 509, 510, 515, and 516 of the Act.

The basis and purpose of this Section are the same as Section 816.100 of this Subchapter. All public comments discussed in the portion of the preamble relating to Section 816.100 were considered, and similarly disposed of, with respect to Section 817.100. The Office believes that the differences between surface and underground mining do not justify differences in contemporaneous reclamation requirements between surface and underground operations affecting the surface. The reader is referred to Section 816.100 for a discussion of issues relative to Section 817.100.

SECTIONS 817.101-817.103 Backfilling and grading.

1. Sections 817.101 817.102 are regulations for backfilling and grading of areas disturbed by underground coal mining activities. Disturbed areas are to be reshaped to approximate original contour in a manner that minimizes erosion and water pollution and prevents slides. A level of surface productivity equal to that attained prior to mining and under proper management is to be achieved on this restored area. Authority for these Sections is found in the Act in Sections 102, 201, 501, 503, 504, and 516.

2. In Section 817.102 and 103, several commenters requested a change which would allow final graded slopes to be consistent with an approved post mining use plan rather than the stipulated pre-mining slopes or lesser slopes approved by the regulatory authority, where mining activities are reaffecting previously mined lands. Section 515(b)(3) of the Act clearly states ". . . to restore the approximate original countour of the land with all high walls, spoil piles and depressions eliminated.'' Section 516(b)(10) of the Act calls for surface disturbance of underground mining activities to operate in accordance with the standards established under Section 515 of the Act. Section 817.102(a) allows for modification of this requirement where mining activities are reaffecting previously mined lands that have not been restored to the standards of the Section. Since the commenters provided no further technical justification the language for this Section is retained.

3. Some commenters requested that Section 817.102(a)(2) be revised to include slopes which exeed 50%, as in Section 817.102(b)(3). Section 817.102(b)(3) refers only to terrace cut slopes. Spoil slopes are to be graded to the most moderate slope possible. This is intended to avoid long slopes with over a 50% gradient. Grim and Hill, pp. 149 197, Section IX. The language change has been rejected.

SECTION 817.103(a)(1) and (a)(2) Toxic material.

Comments were received on Section 817.103 (a)(1) and (a)(2) requesting that an exemption be allowed from four-foot cover requirements over acid or toxic producing material. These Sections are substantially identical to the corresponding Sections of Part 816. The reader is referred to the preamble discussion for Sections 816.103(a)(1) and (a)(2) for information concerning the technical basis, and alternatives considered for Part 817, including the disposition of similar comments. In addition to Sections of the Act cited in those portions of Part 816 in the preamble, these Sections are based on Section 516 of the Act.

817.103(b).

Comments were also substantially the same as those received on the corresponding Sections of Part 816. The reader is directed to the preamble discussion for Part 816 for the disposition of comments received on this Section. In addition to the Sections cited in the preamble to Part 816, Section 516 of the Act authorizes these Sections.

SECTION 817.106 Regrading or stabilizing of rills and gullies.

This Section is substantially identical to Section 816.106. The reader is referred to Section 816.106 for information concerning the technical basis, alternatives considered, and statutory authority for the Section. In addition to the Sections of the Act cited in these portions of the preamble, this Section is based on Section 516 of the Act. The Office considers the need for correction of gullying to be sufficiently similar in surface and underground mining to warrant substantially identical performance standards.

SECTION 817.111-817.117 Revegetation.

1. These regulations are intended to ensure establishment of a diverse, permanent, self-generating vegetation capable of plant succession and at least equal in extent of cover to the natural vegetative cover. It will be necessary that underground mining operations stabilize and revegetate all lands affected by their operations.

These Sections are issued under the authority of Sections 102, 201, 501, 503, 504, 510, and 516 of the Act.

2. In response to public comments, these regulations differ from those for surface mining and those differences are discussed here. For additional discussion on the development of these regulations, the reader is referred to Part 816 for those Sections regulating activities that warrant substantially the same regulations.

3. Section 817.111 sets forth the general requirements for revegetating surface areas affected by underground mining operations. Persons conducting underground mining activities are required to establish a diverse and permanent vegetative cover on all areas disturbed by surface operations. The revegetation shall be in accordance with the plan and carried out in a manner that encourages prompt vegetative cover and productivity levels compatible with the approved post-mining land use.

Several commenters expressed concern that the revegetation requirements of Section 516(b)(6) of the Act were substantially different for underground mining as compared to surface mining and they argued that this difference warranted regulations that were substantially different. Since Section 516(b)(6) does differ from Section 515(b) (19) and (20), primarily by not requiring native vegetation of the same seasonal variety when revegetating areas disturbed by underground mining operations, the appropriate changes were made in Sections 817.111 and 817.112 to reflect that difference.

{15272}4. Some commenters contended that the Act required greater recognition of ecological principles and biological community dynamics. This suggestion was accepted and the language changed to require vegetation capable of self-regeneration and plant succession, in accordance with Section 516(b)(6) of the Act. For the same reason the proposed requirement of "the same seasonal variety'' was deleted and changes were made to specifically list the vegetative requirements of the Act.

As mentioned above, Section 817.112 was changed to reflect the different vegetative species requirements of Section 515(b)(6) as compared to the requirements of Section 515(b) (19) and (20).

The Office believes that Sections 817.113 through 817.117 should be substantially identical to the corresponding Sections of Part 816. The reader is referred to the appropriate part of the preamble for Part 816 for information and discussion of the alternatives considered for these Sections.

SECTIONS 817.121-817.126 Subsidence control.

The regulations on subsidence are intended to ensure that underground mining is conducted so as to protect the health and safety of the public, minimize damage to the environment, and protect the rights of landowners. The subsidence control regulations will reduce subsidence-caused material damage to the land surface by improving mining methods, as well as by maintaining the value and potential of the land.

Authority for these Sections is found in Sections 102, 201, 501, 503, 510, 516, 517, and 522 of the Act.

Technical literature relied upon in writing these regulations includes:

1. "Acid Mine Drainage and Subsidence-Health and Ecological Effects of Increased Coal Utilization,'' Hill, Ronald D. and Bates, Edward R., Resource Extraction and Handling Division, Industrial Environmental Research Laboratory-Cincinnati, U.S. Environmental Protection Agency, Cincinnati, Ohio 45278, 1977.

2. "A Comprehensive Program for Dealing with Mine Subsidence,'' ARC Report 73 163 1559, prepared by Michael Baker, Jr., Inc., Beaver, Pennsylvania, and the Institute of State and Regional Affairs. The Pennsylvania State University, Middletown, Pennsylvania, for the Appalachian Regional Commission, Washington, D.C., and the Pennsylvania Department of Environmental Resources, Harrisburg, Pennsylvania, 1976, Chapter 6, pages 49 51.

3. "Subsidence Engineers Handbook,'' National Coal Board (British), Production Department, London, 1966, 1974.

4. Architectural Measures to Minimize Subsidence Damage, ARC Report 73 111 2551, prepared by Michael Baker, Jr., Inc., Beaver, Pennsylvania, for the Appalachian Regional Commission, Washington, D.C., and the Pennsylvania Department of Environmental Resources, Harrisburg, Pennsylvania, 1974.

5. "Overview of Subsidence Potential in Pennsylvania Coal Fields,'' ARC Report 73 111 2552, prepared by HRB-Singer, Inc., State College, Pennsylvania, for the Appalachian Region Commission, Washington, D.C., and the Pennsylvania Department of Environmental Resources, Harrisburg, Pennsylvania, 1975.

6. Gray, R. E., Gamble, J. C., McLaren, R. J., and Rodgers, D. J., "State of the Art Subsidence Control,'' ARC Report 73 111 2559 prepared by General Analytics, Inc., ("GAI'') Monroeville, Pennsylvania, for the Appalachian Regional Commission, Washington, D.C., and the Department of Environmental Resources, Harrisburg, Pennsylvania, 1974, part 2.

7. "Use of Photo Interpretation and Geological Data in the Identification of Surface Damage and Subsidence,'' ARC Report 73 111 2554, prepared by Earth Satellite Corporation, Washington, D.C., for the Appalachian Regional Commission, Washington, D.C., and the Pennsylvania Department of Environmental Resources, Harrisburg, Pennsylvania, 1975, pages 35 37.

8. "Local and State Regulatory Powers Dealing with Land Use and Construction in Subsidence Prone Areas,'' ARC Report 73 163 2557, prepared by Mullin L. Lonergan Associates, Inc., Philadelphia, Pennsylvania for the Appalachian Regional Commission, Washington, D.C., and the Pennsylvania Department of Environmental Resources, Harrisburg, Pennsylvania, 1975, Appendix A.

9. U.S. Congress, 95th, 1st session, House Rept. 95 128, 1977, Surface Mining Control and Reclamation Act of 1977, Report of the Committee on Interior and Insular Affairs, House of Representatives, to accompany H.R. 2, p. 126 10. U.S. Department of Interior, 1976, Final Environmental Impact Statement on Surface Subsidence Control in Mining Regions; U.S. Bureau of Mines FES 76 58, 90 p.

10. U.S. Department of Interior, 1976, Final Environmental Impact Statement on Surface Subsidence Control in Mining Regions: U.S. Bureau of Mines FES 76 58, 90 p.

11. National Coal Board, 1963, Principles of subsidence engineering: Production Department Information Bull 63/240, 21 p., London, UK.

12. Dunrud, C. R. 1976. Some engineering geologic factors controlling coal mine subsidence in Utah and Colorado: U.S. Geological Survey Professional Paper 969, 39 p.

13. Brauner, G., 1973, Subsidence due to underground mining: I. theory and practices in predicting surface deformation: U.S. Bureau of Mines Info-Circ 8571, 55 p.

14. Battelle Columbus Laboratories, 1975, A systems approach to underground mining: Phase I problem analysis and research recommendations, 282 p.

15. Campbell, J. A. L., Petrovic, L. J. Mallis, W. J., and Schulties, C. W., 1975, How to predict coal mine roof conditions before mining: Mining Engineering, October, pp. 37 40.

16. Vandale, A. E., 1967, Subsidence_a real or imaginary problem: Mining Engineering, September pp. 86 88.

17. Horn, G. H., 1977, Memorandum on subsidence requirements_coal: U.S. Geological Survey memo to mining supervisors.

18. Allen, A. S., 1976, Basic questions concerning coal mine subsidence in the United States: Assn. Engr. Geologists Meeting, April 1976, 19 p.

19. Amuedo and Ivey, "Ground Subsidence and Land use considerations over coal mines in the Boulder-Weld Coal Field, Colorado'', Amuedo and Ivey Geological Consultants, 1975.

20. "Study and Analysis of Surface Subsidence over the mined Pittsburgh coal bed,'' report prepared for U.S. Department of Interior, Bureau of Mines under contract No. J0366047 by GAI Consultants Inc. Monroeville, Pennsylvania, July 1977.

21. Wardell, Kenneth, "Ground Subsidence and Control'', Mining Congress Journal, January, 1969, pp. 36 43.

22. Kratzsch, Helmut, "Reduced Subsidence by Planned Extraction'', Bergbau-Archiu (Essen), Vol. 25, No. 5, December 1964, pp. 15 21.

23. Panek, Louis A., "Methods and Equipment for Measuring Subsidence,'' Third Symposium on Salt, the Northern Ohio Geological Society, Inc., Cleveland, Ohio, 1966.

24. Voight, Barry and Pariseau, William, "State of Predictive Art in Subsidence Engineering,'' Journal of the Soil Mechanics and Foundation Division, Proceedings of the American Society of Civil Engineers, March, 1970, pp. 721 740.

25. Legget, R. F., "Duisburg Harbour Lowered by Controlled coal Mining,'' Canadian Geotechnical Journal, 9, 374, 1972, pp. 874 3832.

26. Brauner, Gerhard, "Subsidence Due to Underground Mining 2. Ground Movements and Mining Damage,'' U.S. Bureau of Mines Information Circular 8572, 1973

{15273}27. "Bituminous Mine Subsidence and Land Conservation Act of 1966,'' Commonwealth of Pennsylvania (Department of Environmental Resources), Harrisburg, Pa.

28. Curtis, S. E., Talk Presented at the Roof Control Committee Meeting of the American Mining Congress Pittsburgh, Pa., September 18, 1968.

29. Dunrud, C. R., and Osterwald, F. W., 1978, Effects of coal mine subsidence in the western Powder River Basin, Wyoming: U.S. Geol. Survey Open-File Report 78 473, 71 p.

30. Osterwald, F. W., 1961, Deformation and stress around coal mine workings in Sunnyside No. 1 mine, Utah: U.S. Geol. Survey Prof. Paper 424 C, p. C348 353.

31. USGS, 1962, USGS relates geologic structures to bumps and deformation in coal mine workings: Mining Engineering, v. 14, no. 4, p. 63 68.

Section 516(b)(1) of the Act requires undergound mine operators to adopt measures consistent with known technology in order to prevent subsidence-caused material damage to the extent technologically and economically feasible. Room amd pillar mining is not prohibited. If no subsidence control measures are adopted, there is the possibility of material damage to private dwellings (National Coal Board, p. 46, 1974), gas and electrical utilities (GAI, 1977), sewers (National Coal Board, pp. 57 58, 1974) and water resources such as springs and farmland (Dunrud and Osterwald, p. 59, 1978).

In order to evaluate best the likelihood of material damage, it is desirable to conduct underground mining in a manner such that the time and extent of subsidence can be predicted in as precise a manner as possible. Damage caused by subsidence can occur many decades after mining (Dunrud and Osterwald, p. 6, 1978) because of long-term instability of mine pillars, indicating the need for proper subsidence control measures in order to "maximize mine stability.'' Subsidence effects can also extend off the mining site (National Coal Board, p. 16, 1974; Baker, pp. 40 42, 1974; HRB-Singer, p. 25; and Grey, et al, p. II 26, 1974) at angles (measured horizontally from the edge of mining) varying from 35 degrees to 70 degrees (Brauner, Vol. 1, p. 9, 1973) and may result in damage to structures not situated directly over the mining site.

Determination of on- and off-site subsidence potential requires consideration of coal thickness mined, mining geometry and dimensions, and the nature of overlying and underlying strata (National Coal Board, pp. 8 24, 1974; Brauner, Vol. 1, p. 6, 1973; GAI 1977; and Voight, pp. 723 30, 1970). Determination of the potential effects of subsidence on structures and other facilities requires consideration of subsidence-caused ground strains and deflections and the nature of the structures themselves (National Coal Board, p. 24, 1974; Brauner, Vol. II, p. 2, 1973; Voight, p. 740, 1970; and Pennsylvania DER, p. 59, 1966). Therefore, adequate definition of the time and extent of subsidence and the prevention of material damage require careful consideration of the value and use of the land surface, detailed knowledge of the geologic and mining characteristics of the site (Osterwald, p. C 349 53, 1961, p. 64, 1962), and proper attention to geotechnical design principles.

Technology is available to minimize and reduce subsidence-caused material damage for both the standard room and pillar mining method and other methods, such as longwall mining, which are currently used in this country. Excellent protection of sensitive surface features such as urbanized areas and important historic and cultural features or farmland can be achieved by refraining from mining underneath and adjacent to these features as, for example, provided in Section 817.57 with respect to certain streams. Similar protection is currently required in Pennsylvania for protected structures consisting of public buildings, dwellings, and cemeteries, when the mine operator cannot post bond or does not have an approved financial statement. (Penn. DER, p. 60, 1966). Similar protection is required by MSHA for oil and gas wells.

Control of surface subsidence with respect to other structures can be achieved through proper design of mining operations to leave supporting coal in place, when using the room and pillar method (Curtis, pp. 4 6, 1968). Protection of the surface can also be achieved when using longwall panel and pillar systems. (Wardell, p. 41, 1969). A large portion of a major harbor in Germany was lowered more than one meter with minimal subsidence damage by careful control of mining. (Legger, pp. 374 83, 1972). Simultaneous harmonic extraction of superimposed coal seams and special arrangements of the mine workings and overlying structures can be used to limit damage (Brauner, Vol. II, p. 23, 1973; Kratzsch, p. 15, 1964; Osterwald, pp. 349 53, 1961; USGS p. 68, 1962). Longwall mining commonly results in predictable and controlled subsidence that is 90 95 percent completed by the termination of mining (National Coal Board, p. 90, 1974; Wardell, p. 36, 1969; Voight, p. 739, 1970). Room-and-pillar mining, on the other hand, may result in subsidence at a much later date, especially when conducted at shallow depths (Amuedo and Ivey, IV 3, 1975, Dunrud and Osterwald, p. 43, 1978).

One measure which can reduce material damage from subsidence is to reinforce or design surface structures to resist the stress imposed on them by subsidence-caused ground movements (National Coal Board, p. 65, 1974; Voight, p. 720, 1970; and Brauner, Vol II, p. 15, 1973).

Another measure which can significantly reduce subsidence is placement of fill, whether hydraulically or pneumatically, behind a longwall face (Brauner, p. 33, 1973). Backfilling through surface bore holes has also been used by the Bureau of Mines in an attempt to limit subsidence over abandoned room and pillar mines (DOI, USBM, pp. 8 22, 1976).

Some commenters on the proposed regulations suggested deleting Sections 817.121 817.126 altogether, and allowing State regulatory agencies to establish individual regulations regarding subsidence. This alternative was rejected by the Office because Section 516(b)(1) of the Act specifically requires an operator to "adopt measures consistent with known technology in order to prevent subsidence causing material damage to the extent technologically and economically feasible . . .'' and because the Office feels that the state of the art is such that minimum national standards can be set. In such circumstances, Section 501(b) of the Act mandates these regulations be promulgated. While a State can tailor its subsidence controls as it deems appropriate, within the limits set under Subchapter C of these rules, the Office believes that minimum national standards are appropriate to fulfill the statutory goals of protection against subsidence damage and to prevent operators in one State from having unfair competitive advantages. (See Section 102(g) of the Act).

A revision of Sections 817.121 through 817.126 has been made by the Office since the proposed regulations, based on numerous comments addressed in the paragraphs below. The major changes are: (1) deletion of proposed Section 817.123 on the basis that a preliminary survey at the request of the landowner is not required by the Act and would be burdensome to the operator without sufficient offsetting environmental or property protection values to warrant the burden; (2) deletion of proposed Section 817.125 because monitoring is expensive and burdensome, often does not contribute to the prevention of subsidence, and is not appropriate or necessary in all circumstances to achieve the purposes of the Act; and (3) proposed Section 817.124 is modified to strengthen surface owner and public protection from surface damage caused by mine subsidence.

Sections 817.121-817.126 must be read together with Section 784.20 which contains permit application requirements for the subsidence control plan. The reader is encouraged to read the preamble discussion of Section 784.20 for a discussion of many issues relating to Sections 817.121-817.126.

SECTIONS 817.121 Subsidence control: General requirements.

Section 817.121 establishes general requirements for subsidence control. The basic principle of this Section is to require prevention of subsidence damage, to the extent that it is economically and technologically feasible, and to maintain the value and foreseeable use of surface lands. This Section allows planned or controlled subsidence, and specifies that room and pillar mining is not prohibited. It further obliges the operator to comply with the subsidence control plan of Section 784.20. All measures should take into account that often there is a long lag time between mining and subsidence damage appearing at the surface.

A sentence has been added to Section 817.121(a) to make the regulations agree with the Act, Section 516(b)(1), concerning room and pillar mining.

Section 817.121(b) repeats a reference to the permit section of the regulations and has been left as the introductory Section of this group of regulations to remind the user that underground mining activities must conform with the permit requirements relating to subsidence control.

Several comments on this Section stated that operators who own the surface above an underground mine, as well as the mine, should be exempt from subsidence control plans, and operators should be exempt in areas where the surface owner agrees to accept subsidence and damage to structures, either by formal waiver or by an unspecified form of agreement. This concept was rejected by the Office because Section 516(b)(1) of the Act specifically protects the surface environment for the present and future, regardless of ownership. The Act does not contemplate that private parties can, by contract or purchase of resources, void the Congressional mandate for environmental and other property protection.

Another commentor suggested that the regulations do not allow operators to prove that subsidence will not occur, nor do they establish liability for subsidence caused by previous operations in permit areas. This comment did not lead to any changes in the rules because subsidence of the surface over mined-out areas is a proven fact (Dunrud and Osterwald, pp. 40 43 and 77, 1978) and the Office has not been presented with any evidence that subsidence can be definitively precluded as a possibility in any circumstances. As for past mining, the current operator takes the land as he finds it, and if the likelihood of subsidence is increased during the current operation as a result of voids created earlier, that operation is as liable for the damage as though the increased likelihood resulted from natural conditions. Accordingly, the regulatory scheme has been developed to evaluate susceptibility of surface to damage and development of mitigating measures.

One commenter stated that underground operators should be required to conform to the same surface restoration standards as surface operators. This suggestion was rejected because it was beyond the scope of the specific requirements in Section 516(b)(1) of the Act, and because subsidence from underground mines and surface mining have significantly different effects on the surface. For example, topsoil removal, overburden stripping, and vegetative removal will all occur in surface mining but probably will not accompany subsidence, so that identical restoration measures are inappropriate. See the proviso in Sections 516(a) and 516(b)(10) of the Act.

Several comments suggested inserting standards for "planned'' or "controlled subsidence'' into the regulations, rather than specifying subsidence prevention and damage mitigation measures. These suggestions were rejected because longwall mining is not appropriate for all coal seams. It is very expensive when the coal seam is in excess of a 30 degree slope, and it is not economically feasible for all operations. The adequacy of the proposed longwall plan, if any, can be evaluated by the regulatory authority based on the submission under Section 784.20, and detailed technical standards in these rules would be voluminous, without adding materially to lessen the damage.

One comment was received which stated that Section 817.121 restricted methods of operation to the point of making them uneconomical. The Office feels that the wording ". . . economically feasible . . .'' allows the operator a choice of mining methods.

SECTION 817.122 Subsidence control: Public notice.

Section 817.122 requires the operator to distribute the mining schedule by mail to all property owners and residents in the affected and adjacent areas, and specifies that each person shall be notified at least six months prior to mining beneath that person's property or residence. The mining schedule must include all future mining planned to occur which might cause subsidence damage to the property.

The six-month notification is provided so that the landowner will be informed of the potential for subsidence damage to the property prior to its being undermined. The six-month requirement allows a reasonable length of time prior to the earliest onset of subsidence so that damage-control measures may be implemented, and adverse effects of subsidence may be mitigated. The Office has not specified the maximum period before undermining within which the notice must be sent, but it is expected that regulatory programs will provide a reasonable period to ensure adequate protection for the surface owner. Notification to the landowner at the beginning of subsidence is not an acceptable alternative, since this would pose a direct and unanticipated danger to the life and property of the landowner. (GAI, 1974).

Utilities, municipalities, and industries must also be advised as to when disruptions are possible and must be allowed adequate time to protect against loss of power, gas, or water services. If landowners are to assure their rights by means such as insisting that proposed subsidence controls be modified, then they must be informed of the possibility of subsidence affecting their land prior to its occurrence and, in many cases, prior to mining.

Notification to landowners and residents by publication of the mining schedule in a newspaper, as proposed, has been deleted. Section 817.122 now only requires notification by mail. The Office believes that notice by mail is a reasonable and more reliable form of notification than publication in a newspaper. Newspaper notification is not required by the Act.

Suggestions to delete proposed references in Section 817.122 to premining surveys, and the probable effects on structures, were accepted. The Office believes that the premining survey would be potentially very burdensome on the operator, of minimal benefit, and is not specifically required by the Act. Accordingly, proposed Section 817.123, which provided for such surveys, has been deleted. (See discussion below). An itemization of the probable effects of subsidence on structures would most likely be so speculative or general as not to be useful to the property owner.

Suggestions to limit Section 817.122 to areas of longwall mining, planned subsidence and areas known to fail within 10 years, were rejected by the Office because Section 516(b)(1) of the Act specifically requires limitation of material damage from unplanned subsidence.

A request to change the notification time schedule to every 12 months was rejected. The Office believes a single pre-mining notice approximately six months before the mining will provide adequate warning to landowners and other persons whose property is likely to be affected.

SECTION 817.123 Deleted

In the proposed regulations, Section 817.123, which has been deleted in these final rules, would have provided that the regulatory authority would, upon a request by an owner of any dwelling or structure within the mine plan area, require the operator to conduct and submit to the regulatory authority a premining survey. This Section also would have required a premining survey of all public buildings and structures in the mine area. These requirements were proposed to provide a baseline against which to measure damages that might occur. In this manner they protected both the surface owner and the operator. Special attention in the survey was to be given to the condition of water structures and systems used to supply human, animal, and agricultural needs. The operator would have been required to provide the surface owner and the regulatory authority with copies of the premining survey report. The report was to include a description of special conditions and proposed adjustments to the subsidence control procedures of proposed Section 817.122.

Some commenters on this Section suggested deleting the entire Section and allowing States to establish individual regulations. Other suggestions were that the premining survey be included in the subsidence control plan; that provisions be made for waiver of damage claims by granting severance deeds of record to the operator; that temporary dwellings such as tents, mobile homes, and the like be specifically exempted from the "dwelling'' provision; that the surface owner request a survey directly from the operator, rather than from the regulatory authority; and that surveys should be limited to assessment of potential effects of future operations during the term of the permit.

During the period of consideration of public comments, the Office concluded that the Act does not require a premining survey and that to include such a requirement in the regulations would place an unwarranted burden on operators. It was further concluded that the optional nature of the proposed regulation which left the decision to the property owner of whether or not to request a survey did not provide a reasonable basis for evaluating ultimate liability for damage. For these reasons, and because of the reorganization of Sections 817.121 817.126 and the shift of emphasis in Section 817.124 to increased liability and restoration requirements following subsidence, proposed Section 817.123 has been deleted in its entirety. However, an inventory of surface features subject to material damage is now required under Section 784.20.

SECTION 817.124 Subsidence control: Surface owner protection.

Section 817.124 provides protection for the rights of owners of surface lands or structures by stipulating that underground operators shall use all measures approved by the regulatory authority to reduce, control, or prevent subsidence and subsidence-caused damage. Operators of mines that cause subsidence-related damage are required to mitigate the damage by restoration, rehabilitation, or removal and replacement of structures; purchase of the damaged structure or feature and restoration of surface to premining capability; or by providing surface owners with prepaid insurance to cover the amount of diminution in value caused by subsidence or other similar protection. In the case of land-use degradation caused by subsidence, operators are required to return the surface to a condition capable of supporting uses reasonably foreseeable before subsidence.

Dwellings or other buildings already constructed may be partially protected against subsidence by reinforcement of sensitive parts such as windows or doors and by isolating the structure from lateral ground movement by ditching around its periphery (National Coal Board, p. 65, 1974; and Voight, p. 737, 1970). New structures can be designed to resist subsidence by incorporating flexible superstructures, flexible pipelines with telescopic joints, special sliding or rigid raft type foundations and by locating the long axis of the building properly with respect to mining (National Coal Board, p. 65, 82, 1974; Pennsylvania DER, 1974; Vought, 737, 1970; and Pennsylvania DER, p. 62, 1966). The requirement to identify mining areas, dates and probable effects of surface subsidence (Sections 817.122 (a), (b) and (c)) will enable the landowner to implement precautionary measures.

Suggestions from commenters to require that insurance against subsidence damage be made available to affected persons in all cases were rejected, because the Office feels that such insurance may prove to be prohibitively expensive in some instances and not readily available in others. Accordingly, insurance is one alternative from which operators can choose to meet the requirements of this Section, but is not required.

Several comments on Section 817.124 questioned whether the underground operator should be required to protect surface structures or land in cases where the operator either owns the surface or has a specific waiver of damage. The Office has modified this Section because of the shift of emphasis in subsidence control imperatives but has retained the basic tenets of surface protection for both present and future owners, as mandated by the Act's requirement for maintenance of the surface's value and reasonably foreseeable future uses. (Section 516(b)(1) of the Act).

Several suggestions dealt with language of the proposed regulations. Most concerned the concept of consultation by operators with surface owners as provided in the proposed Section 817.124. As stated above, the Office's modification of this Section has incorporated alternatives to the "consultation'' concept suggested by commenters by providing options for the operator and protection for the surface owner. This is consistent with the Act in that it recognizes that coal is necessary to meet our energy needs and also recognizes that the environment must be protected from the adverse consequences of mining.

Some commenters urged deleting Section 817.124 entirely and allowing States to formulate individual regulations regarding surface owner protection. These suggestions were rejected. The Office felt that to allow multiple and unrelated regulations would result in many programs with no predictable unifying theme or minimum criteria. Section 501(b) of the Act requires the Office to develop minimum procedures, which is what this regulation does. Further protection can be provided under the approved regulatory program. The Office believes that Congress enacted Section 516(b)(1) of the Act in part because State initiative has not in the past adequately met the subsidence damage problem. These rules intend to set the minimum standards for future State regulation. Section 817.124 is appropriate in that it provides options for the operator while providing protection to the surface owner and surface resources in accordance with the intent of the Act. The consultation requirement has been deleted because it presented no real protection, while affording the surface owner an opportunity unfairly to interfere with mining plans by refusing to consult.

A suggestion that underground mining should be prohibited in areas where subsidence cannot be prevented by known technology was rejected because its intent would far exceed the intent and plain meaning of the language of the Act. The Act recognizes that subsidence cannot always be prevented, but attempts to lessen the effects of subsidence, through planning. Section 817.124 has been redrafted to strengthen protection of the surface owner and surface values from damage caused by mining. This revised Section provides increased protection to the surface owner while still providing options to the mine operator, consistent with the intent of the Act that mining be allowed to proceed in most cases.

SECTION 817.125 Deleted

In the proposed regulations, Section 817.125 would have required operators to establish a scheme for monitoring the amount of subsidence caused by underground mining, and specified reports of subsidence to be updated periodically and given to the regulatory authority.

Many comments were received concerning this Section, all of which questioned the requirements of monitoring. After careful consideration, the Office has determined that monitoring programs are not specifically required by the Act; that monitoring can be expensive, as demonstrated by the Bureau of Mines and the Old Ben Coal Co. on a monitoring program in the Illinois coal basin; and that monitoring is a means of determining movement and not a reliable method of preventing or mitigating subsidence or resulting damage.

Accordingly, Section 817.125 has been deleted, and its intent of surface owner protection has been shifted to the more direct provisions of Section 817.124.

SECTION 817.126 Subsidence control: Buffer zones.

Section 817.126 provides protection for hydrologic structures, aquifers, public buildings, and communities by preventing underground mining beneath or adjacent to these structures where subsidence damage is likely to occur. The regulatory authority is given the option of determining where mining may be permitted.

Paragraph (a) provides for the protection of perennial streams and major impoundments (20 acre-feet or greater) from underground mining operations and gives the regulatory authority the option of allowing mining near these areas if it can be shown that subsidence will not cause material damage to these water features. It further provides for corrective measures to be taken if material damage from subsidence occurs as a result of mining operations.

Protection of aquifers serving as a significant source of water supply to any public water system is required by Section 817.126(b). Additional protection is provided in that the regulatory authority may suspend mining or limit the percentage of coal extraction where an aquifer may be subject to subsidence damage.

Public buildings are protected from adverse surface damage from underground mining operations in Section 817.126(c) by prohibiting mining beneath or in close proximity to these structures. This requirement may be waived by the regulatory authority if it can be shown that subsidence from mining beneath these structures will not cause material damage.

Section 817.126(d) provides the regulatory authority with the option of suspending underground coal mining in all of the above circumstances where there is a threat of imminent danger to inhabitants of urban areas, cities, towns or communities.

The Office feels that this Section provides an addtional level of protection to the public in and around areas of active underground coal mining.

One commenter suggested deletion of Section 817.126 to permit individual States to develop separate regulations. The Office feels that a single approach to protection of surface facilities will provide consistency of regulation, and, therefore, has rejected the suggestion.

Some commenters requested that the Office not regulate mining beneath intermittent streams. The Office has determined that to prohibit all mining under intermittent streams exceeds the intent of the Act (See Section 516(c) which authorizes suspension of mining under "permanent streams'') and that the cost of implementing measures to prevent disturbance of intermittent streams is contrary to Section 516(b)(1) of the Act which requires implementation of measures which are "technologically and economically feasible.'' While the intermittent stream provision which appeared in the proposed regulations has been deleted from this Section as too broad (there was no depth beyond which it didn't apply), the operator still must comply with the buffer zone provisions of Section 817.57, if applicable to the stream in question.

Commenters suggested that only mining activity likely to cause subsidence should be regulated by Section 817.126 and that mining should be permitted under structures where planned subsidence would cause no damage, where surface owners were suitably compensated, or where a deed granting relief exists. These suggestions were rejected because language regulating only mining likely to cause subsidence violates the Act which calls for measures to prevent material damage, and the fact that its likelihood is remote does not warrant an exemption from the requirement. The regulations as written cover both planned and unplanned subsidence and provide protection to public buildings in accordance with Section 516(c) of the Act. The contents of a deed are irrelevant to preserving the value and forseeable use of surface features.

Comments suggesting that the volume of protected impoundments be reduced from 20 acre feet to five acre feet were rejected because the suggested volume is far too small to qualify as a major impoundment as specified in Section 817.49 and Part 77.216(a)(1) of MSHA regulations. The reader is referred to the preamble discussion of Section 816.49 for a discussion of the rationale for the 20 acre foot cut-off.

Commenters suggested that the regulatory authority be allowed the option of permitting mining under structures where it determined that no subsidence damage will result. This provision is now found in both Paragraphs (a) and (c).

The last sentence of Section 817.126(a) has been modified to require corrective action if damage is caused, in order to comply with Section 516(b)(1) of the Act, in a manner which does not restrict the operation to specific types of corrective measures. Now the measures most appropriate for the site can be implemented.

Section 817.126(b) has been modified in response to comments to read "any aquifer that serves as a significant source of water supply to any public water system.'' This suggestion was incorporated into the regulations since many towns and cities obtain significant portions of their water from more than one source. This modification provides additional protection to the public over the proposed rules which only protected aquifers which were the "sole'' source of supply. Protection of private water supply wells affected by damaged aquifers is assured by Section 783.18 of these regulations. I11Section 817.126(d) was added to implement Section 516(c) of the Act concerning the presence of imminent danger from mining operations.

Several comments were received concern in the term "adjacent'' in Section 817.126(a). The Office feels that guidance as to the appropriate definition of this term can be found in Section 817.57 of the regulations and refers interested readers to the preamble discussion for that Section. Of course, State programs can more specifically define this concept as long as adequate protection for the water body is assured. The intent of the word "adjacent'' is to prohibit activities which may cause subsidence in such proximity to streams and impoundments that the functioning of the feature might be jeopardized. As noted above, the angle of draw, within which subsidence can occur, may be as great as 70 degrees and should be taken into account in the context of determining appropriate distances within which not to mine.

SECTIONS 817.131 and 817.132 Cessation of operations.

These Sections are substantially identical to the corresponding Sections of Part 816. The reader is referred to the appropriate portions of the Preamble for Sections 816.131 816.132 for information concerning the technical basis and statutory authority for these Sections. In addition to the Sections of the Act cited in those portions of the Preamble, these Sections are based on Section 516 of the Act. All issues considered for Sections 816.131 and 816.132 were also considered for these sections and similarly decided. (Additional comments received on specific parts of Sections 817.131 and 817.132 are addressed below:)

{15277}Section 817.131(a).

Several commenters suggested the deletion of this paragraph entirely. However, temporary interruption in production operations still necessitates ventilating and maintaining underground entries and/or passageways, hence closure of surface access openings is not appropriate and would be unsafe and unacceptable. There are many areas in underground mines where production ceases at some normal phase of the total mine operations, which could fall in the temporary category as formerly proposed and yet still be required for total mine production. As a result, the wording "maintain all surface access openings'' was added to make it clear tht a partial closing does not require complete shutdown.

Section 817.132(a).

Several commenters suggested that the phrase "this Chapter and according to'' be deleted from Section 817.132(a). They contended that current State regulations for shaft and/or portal sealing together with an approved State regulatory program would suffice and not require the phraseology originally proposed. This suggestion was rejected. By deleting "this Chapter and according to'', this Section could be interpreted as superseding the specifics contained elsewhere in this Chapter, including Sections 817.13, 817.15, 817.101 817.117 and others, which is not the intent.

Section 817.132(b).

Several commenters suggested various revision to this Section. The suggestion was made that only surface equipment, structures, or other facilities not required or approved shall be removed. This suggestion was accepted, as underground equipment, structures, and equipment should not have to be removed if their remaining poses no threat to the environment or public safety. Also, when an operation is ceased permanently all entrances to the underground mine will be sealed and the equipment should pose no threat to the environment or the health and safety of the public.

SECTION 817.133 Post-mining land use.

This Section is substantially identical to the corresponding Section of Part 816. The reader is referred to the appropriate portions of the preamble for Section 816.133 for information concerning the statutory authority, technical basis and alternatives considered for this Section. In addition to the statutory authority cited in Section 816.133, authority for this Section is found in Section 516 of the Act. The Office considers the needs for post-mining land use controls to be sufficiently similar to warrant substantially identical criteria for both surface and underground operations.

Several commenters raised issues related to specific sections of Section 817.133 which were also raised in connection with Section 816.133: These issues are discussed and resolved in the preamble to Section 816.133 and revised language has been incorporated in Section 817.133 where changes were also made in Section 816.133. These issues include objections to: (1) the phrase "and had been properly managed'' in Sections 816.133(b) and 817.133(b); (2) the compatibility requirement of Sections 816.133(c)(1) and 817.133(c)(1); (3) the letter of commitment required under Sections 816.133(c)(4) and 817.133(c)(4) and (4) the inclusion of "other appropriate professionals'' in Sections 816.133(c)(5) and 817.133(c)(5).

In addition, editorial changes in Section 816.133 made since the proposed regulations and changes made in connection with the Office's consideration of comments on Section 816.133 have also been made in Section 817.133. These changes include: (1) addition of "before permanent abandonment'' in Section 817.133(c) (introductory paragraph); (2) the 60-day notice requirement in Section 817.133(c)(1) and (c)(8); (3) deletion of "needs'' in Section 817.133(c)(2) and (4) the reference to the bonding regulations sections in Section 817.133(c)(9).

Some commenters suggested that the differences between surface and underground mining operations mandated that Sections 816.133 and 817.133 not be identical. Specifically, these commenters stated that Sections 817.133(b) and 817.133(c) should be revised to take into account the long life of an underground mine. The Office considered making revisions to Section 817.133 to reflect differences in undeground mining as well as the alternative of making no change. Reviewers apparently overlooked the fact that each five year phase of an underground mining operation must be separately permitted. (Section 782.17). (There are exceptions if an operator can make the necessary showing under Section 786.25(a) of the regulations.) Thus, for most operations there are essentially no differences in planning post-mining land uses for the two types of mining. Therefore, while language has been added in Section 817.133(a) to reflect that surface land areas affected by mining (as opposed to "all affected areas'') are of concern in underground operations, no other changes to this section were made.

SECTIONS 817.150-817.176 Roads.

These Sections have been developed to implement permanent environmental protection performance standards for the design, construction, reconstruction, utilization, maintenance, and restoration of roads at underground coal mining operations. These regulations are aimed at ensuring that the mine road operations will not pollute water resources, or damage fish and wildlife habitat, or public or private property. Authority for these sections is found in Sections 102, 201, 501, 503, 504, 515, 516, and 701 of the Act.

These sections are substantially like the corresponding sections of Part 816. The reader is referred to the appropriate portions of the Preamble for 30 CFR Part 816 for information concerning the technical basis, alternatives considered, rationale for the regulations adopted, disposition of comments, and statutory authority for these sections. Every comment received on the mine road regulations was looked at both from a surface and underground mining activity perspective and disposed of similarly for both mining situations.

Permanent regulations for roads used in connection with underground mining activities incorporate the three-tier road classification system. The definition of each class of road is found in 30 CFR 701.5 and is based upon the planned volume of traffic, speed, and weight of vehicle used above ground, outside of the underground mine workings. There is nothing in the nature of the kind of surface or underground coal mining activities that would lead to distinctly different road requirements and regulations for surface mines as opposed to deep mines.

The organization of the three types of road classifications are as follows:

Class I Roads_Sections 817.150 817.156

Class II Roads_Sections 817.160 817.166

Class III Roads_Sections 817.170 817.176

The correlation between the proposed regulations and the final regulations is shown in the following chart:

_______________________________________________________________________ Proposed Subject Final Class Class Class Regular I II III tions General 817.31 817.150 817.160 817.170 Location 817.32 817.151 817.161 817.171 Design and Construction (including erosion control) 817.33 817.152 817.162 817.172 Roads: Drainage 817.34 817.153 817.162 817.173 Surfacing 817.35 817.154 817.164 817.174 Maintenance 817.95 n1 817.155 817.165 817.75 Restoration of Roads 817.38 817.156 817.166 817.176 ____________________________________________________________________________ n1 Also includes: 817.31(a).

{15278}1. Many comments regarding roads carried the dual designation of both surface and underground mining. The disposition of these comments is discussed in the preamble for 30 CFR Part 816. The following additional comments limited only to roads related to underground mining, were also received:

2. A commenter suggested allowing variances for site-specific conditions on the grade requirements for pre-existing roads. This concern is covered by the existing structures provisions of 30 CFR 701.11(e), 784.12 and 786.21. This comment, all was considered in developing new requirements for the three classes of roads which are appropriately based on the volume of traffic, and the weight and speed of vehicles using the road. (U.S. Forest Service 1977 Sections 24; Parker, P.E. 1965 Fig. 1; Kaufman 1977. p. 19.)

3. Some comments objected to the requirement to crown or reslope a road to a drainage ditch. Others objected to a 1/2 inch per foot for crowning or resloping and proposed a 1/4 inch standard. The reader is referred to the preamble discussion of 30 CFR 816.152(d)(10) and 816.162(d)(10) for information and rationale for changing to a 1/4 inch standard.

4. A few comments expressed concern over the rigid 24-inch lift restriction proposed for road embankments. The comments urged greater flexibility for site-specific conditions and that a maximum lift thickness of 4-feet be allowed instead of 24-inches as proposed. Construction of embankments for roads in several States must be on 12-inch lifts. The Office has revised the standards to an upper limit of 36-inches for Class I and Class II Roads. The Office has not established lift standards for Class III Roads due to side cast construction procedures (Kaufman, 1977 fig. 18). The reader is referred to the Preamble discussion of Sections 816.150 816.176 for further information on this subject.

5. Some commenters objected to the word "horizontal'' in proposed Section 817.33(c)(3) stating it is an unworkable condition to require a horizontal lift placement on a vertical grade. The Office recognized this problem and changed the language for Class I and Class II Roads to read, "spread in successive uniform layers.''

6. A few comments objected to compaction requirements in Section 817.33(c)(5),(6). The reader is referred to the Preamble discussion of Section 816.152(d)(5)(6) and 816.162(d)(5)(6) for information and rationale for the final standard.

I117. few comments suggested proposed Section 817.38(b) be deleted entirely. The comments suggested the removal and disposal of all road-surfacing materials was unnecessarily restrictive. The rationale was that road surfacing in many cases is a limestone or slag by-product and not asphalt. Therefore, complete removal of the nonasphalt material would be unnecessary. The Office did not believe a language change was needed. The interpretation of 30 CFR 817.156(b) and 816.166(b) is that unsuitable road material which is detrimental to vegetation establishment and growth shall be disposed in accordance with 30 CFR 817.89, and that other surfacing material may be sacrificed, topsoiled and revegetated if authorized by the regulatory authority.

SECTION 817.180 Other transportation facilities.

1. The authority, basis and purpose of Section 817.180 is the same as for Section 816.180 of Subchapter K, except that Section 516 of the Act provides additional statutory authority. The reader is referred to the preamble discussion of 30 CFR Section 816.180 for a discussion of issues relevant to Section 817.180.

This Section is intended to ensure that transportation facilities other than roads, which are located within the mine plan area are constructed, reconstruced, used and maintained in a way that furthers the environmental and other goals of the Act.

Section 817.180(a) identifies specific environmental situations which must be addressed by the mine operator during the design, construction and use of these transportation facilities. These performance standards will assure compliance with Sections 516(b)(9) and (11) of the Act.

Sections 817.180(b) (d) addresses the minimization of damage to other related environmental values, also identified in Section 516(b)(11) of the Act, while Section (e) protects both public and private land owner interests from damage resulting from transportation facilities other than roads. The Office feels that these performance standards are necessary to assure the mine operator will comply with the full intent of the Act. This Section has been renumbered to Section 817.180 from Section 817.36 to be consistent with renumbering of Part 817 of the final regulations, while allowing it to immediately follow the rules related to roads, where it logically belongs.

2. One comment argued Section 817.80(d) should explicitly require compliance with 30 CFR 817.95, regarding air resource protection. Section 817.95(b)(1) (19) specifically suggest some air pollution control measures which may be applicable. However, the particular facility may require other controls, and may require attention to pollution in addition to fugitive dust. Accordingly, the broader language of Section 817.180(d) has been retained, although Section 817.95 will also apply to these facilities.

3. A commenter recommended deleting all of Paragraph (d). This was not accepted because Sections 515(b)(4), and 508(a)(9) and 516(6)(10) of the Act specifically require compliance with applicable air quality laws and regulations and any applicable health and safety standards.

SECTION 817.181 Support facilities and utility installations.

1. The authority, basis, and purpose of this Section are the same as for Section 816.181 of this Subchapter, except that additional authority for this section is found in Section 516 of the Act. The reader is referred to the preamble discussion of 30 CFR 816.181 for discussion of issues relevant to this Section.

The literature, State laws and regulations considered in preparing this Section included those works cited or referred to in the preamble sections which discuss Sections 817.41 817.56, 817.111 117 and 817.131 and 132.

2. Support facilities as identified in Section 817.181(a) are considered for the purposes of these regulations to be the same as or similar to those facilities identified in 30 CFR 816.181(a). Discussion of each of the subparagraphs within this Section is the same as set forth for Section 816.181 in this Preamble.

Section 817.181 has been renumbered from Section 817.39 of the proposed regulations to be consistent with the renumbering of Part 817 and to keep it together with other regulations which relate to similar facilities.

All comments reviewed in the preparation of the final version of 30 CFR 816.181 were reviewed in the context of Section 817.181 and similarly disposed of, because the Office finds that the differences in surface and underground mining do not warrant different rules for these facilities and installations.

3. A commenter argued that the words "and related environmental values'' in Paragraph 817.181(a)(1) should be deleted. The comment was justified on the grounds that related environmental values are undefined in the regulations and leaving the phrase in the rule might lead to severe economic consequences for an operator. The phrase was not deleted, however, because it is the language used in Section 516(b)(11) of the Act, and state regulatory authorities are given the opportunity, in the first instance, to implement the full intent of that statutory Section. This is in keeping with the intent of Section 101 of the Act that the primary responsibility for developing regulation should rest with the States.

{15279}4. A commenter suggested the word "prevent'' in Section 817.181(b) should be changed to "minimize''. Sound engineering practice minimizes the interruption of electrical power lines shared by more than one customer, but does not guarantee that it will never happen. The suggestion was accepted and the language revised appropriately.

5. A commenter argued that the regulations in Section 817.181(b) should provide an exception when the applicant for a permit possesses a severence deed specifically granting subsidence relief. However, the Act requires minimization of adverse effects of mining including subsidence damage. The suggestion was rejected because agreements between private parties alone will not be permitted to undermine the protection of public values guaranteed by the Act. Accordingly, regulatory authority approval is required under the final phrase of Section 817.181(b) Subsidence is discussed in detail under Sections 784.20 and 817.121 817.126 of the final regulations.

6. A commenter indicated that utility services other than those listed should be protected. The Act refers to the protection of public property within the permit area, which may not be limited to the examples cited. Section 817(b) has been revised to recognize additional utility services, including water and sewage, and states are invited to add to this list of utilities in their State programs if additional facilities exist in coal regions within their borders.

Several commenters suggested deletion of Section 817.181(b). However, the Office has determined that this Section is necessary to meet the requirements of Sections 516(b)(1), 516(b)(7) and 516(b)(10) of the Act, with respect to underground coal mining operations.

SUBCHAPTER K -- PERMANENT PROGRAM PERFORMANCE STANDARDS, 30 CFR PART 818 -- SPECIAL PERMANENT PROGRAM PERFORMANCE STANDARDS -- CONCURRENT SURFACE AND UNDERGROUND MINING

This Part contains the applicable performance standards for any person who conducts or proposes to conduct a combined surface and underground mining operation in such a manner that the operation will not conform to the requirement for contemporaneous reclamation. This Part, together with Section 785.18, is designed to implement Sections 515(b)(12) and (b)(16) of the Act. The reader is referred to the Preamble discussion for Section 785.18 for a discussion of issues relevant to this Part. This Part provides for issuance of a variance for specific areas within the reclamation plan from the requirement that the reclamation efforts proceed as contemporaneously as practical, in order to permit underground mining operations to be conducted prior to reclamation. Any person who conducts or proposes to conduct a combined surface mining and underground mining operation which cannot conform with the requirement for contemporanous reclamation must obtain a variance as specified in this Part.

SECTIONS 818.1 Scope and 818.2 Objectives.

These Sections present the scope and objectives of this Part. Minor editorial changes have been made to clarify the versions of these Sections as proposed on September 18, 1978;

SECTION 818.4 Responsibilities.

This Section has been modified from the proposed regulations on responsibilities of persons engaged in mining. This change has been made to clarify how this Part applies to mining activities and does not represent a substantive change.

I11As stated in Section 818.11, the regulatory authority may approve a variance to the requirement for contemporaneous reclamation after the applicant shows the necessity for the proposed concurrent operations. Such a variance shall only be permitted for the area and for only such time as necessary to facilitate the underground mining operations. A cross-reference to Section 785.18 now has been added to help the reader find the applicable permit regulations.

Proposed Section 818.12 set forth the criteria for requesting a variance for a specific area within the permit area for combined surface mining and underground mining activities. Also, the proposed regulations contained a Section 818.13 which provided for review of variances granted under this Part. Both of these proposed sections have been deleted because they duplicated provisions in Section 785.18 and are therefore unnecessary.

SECTIONS 818.13 Compliance with variance terms.

This Section, which was proposed Section 818.15, states that each person granted a variance under this Part shall comply with all the requirements under 30 CFR 785.18 and with all applicable performance standards of this Subchapter and the regulatory program. Any delay in compliance must proceed as authorized by the permit variance and shall achieve the purposes for which the variance is granted. As proposed, the term "non-compliance'' was used where "delay in compliance'' appears in the final rule. This change was made to emphasize that reclamation must eventually be accomplished and that this variance does not excuse compliance forever, but only so long as necessary to facilitate underground mining.

SECTION 818.15 Additional performance standards.

This Section, proposed as Section 818.16, sets forth additional performance standards. A 500-foot barrier pillar of coal is required to be maintained between active or abandoned surface and underground mining operations as required in Section 515(b)(12) of the Act. Permission for variance to this requirement must be obtained by the applicant in order to conduct concurrent surface and underground mining operations. Such a variance must be approved by the regulatory authority and the Mine Safety and Health Administration (MSHA), only after finding that a variance to the 500-foot barrier pillar of coal is necessary to improve recovery of mineral resources, for abatement of water pollution, or for elimination of hazards to the health and safety of the public. One commenter suggested that Sections 818.15(a)(1) and 818.15(a)(2) be joined by the conjunction "or.'' This change would clarify that the regulatory authority has the latitude to consider a request for a barrier pillar variance, if anyone of the above three conditions were satisfied. The Office believes that meaning is contained in the language without the addition of the word "or'' and, accordingly, no change has been made in the final rules.

This issuance of a variance under this Part shall in no way reduce the protection afforded the health and safety of workers, nor shall it prevent compliance with the requirement that surface water not be permitted to enter the underground workings unless approved by the regulatory authority. Section 818.15(a) is included to emphasize this requirement, which also appears in Section 816.79.

One comment was received which suggested reducing the 500-foot barrier of coal to a maximum of 200 feet. This suggestion has been rejected. Section 515(b)(12) of the Act specifically states that a 500-foot barrier of coal be maintained between active and abandoned surface and underground mining operations in order to prevent breakthroughs and to protect the health and safety of miners. The regulations do, however, provide for a variance of the 500-foot barrier requirement if the appropriate government agencies find that a lesser distance may be permitted and will satisfy one of the requirements in Section 818.16(a).

SUBCHAPTER K -- PERMANENT PROGRAM PERFORMANCE STANDARDS, 30 CFR PART 819 -- SPECIAL PERMANENT PROGRAM PERFORMANCE STANDARDS-AUGER MINING

Part 819 sets forth environmental protection performance standards, in addition to the regulations found in Part 816, for the conduct of auger mining operations to prevent adverse environmental effects from augering operations and to ensure maximum recovery of mineral resources. The preamble for proposed Part 819 at 43 Fed. Reg. 41786 (September 18, 1978) is incorporated by reference and sets forth the basis, purpose, and some of the alternatives considered by OSM in drafting this Part.

SECTION 819.1 Scope.

Section 819.1 states that the Part applies in addition to, and not instead of, Part 816. Editorial changes have been made since the proposed regulations were published in order to clarify this intention.

SECTION 819.11 Auger mining: Additional performance standards.

Paragraph (a) is intended to ensure reasonable access to coal reserves conceivably recoverable by underground methods when augering fails to leave suitable places to establish entries for underground mining. The surface mining operation and the reclamation must be carried out with consideration for the possibility that the remaining reserves could be mined in the future. If an underground mine is planned and the requirements of Part 818 are met, the regulatory authority may allow for a delay in reclaiming the entry area. This delay, however, does not mean that the site should not be reclaimed.

Several commenters thought that the wording of Section 819.11(a) should be changed by deleting the reference to reclamation. However, Section 515(b)(9) of the Act is clear that the purpose of the special augering provisions is to maximize recoverability of mineral resources that would otherwise remain after reclamation, not as a substitute for reclamation.

Various comments were received regarding how to determine the necessity of leaving undisturbed sections of coal in areas where the remaining reserves may not be susceptible to underground mining. The alternatives which were considered during this final rulemaking were: Permit no variance to the requirement for leaving unmined coal pillars; and provide a variance to permit complete mining of the outcrop area.

To accept the first alternative would facilitate access to coal seams from the area where the highwall was located. However, the Office believes that in some instances, once an area is reclaimed, insufficient reserves might remain to warrant redisturbing the area to extract the remaining coal.

The Office has selected the second alternative because a principal purpose of the Act is to encourage a maximum recovery of the mineral resources. The 250-foot requirement may be waived by the regulatory authority under conditions where coal reserves would be lost with little likelihood of increasing the underground recoverable reserve. Some situations where this might occur are mountaintops or spurs where the remaining reserves are too limited for underground development, or the seam is already underground-mined to its maximum practical extent in the area planned for augering. Additional language has been inserted in the regulations to clarify the circumstances where the unmined coal need not be left because it is not practical to underground mine the reserves.

As proposed on September 18, 1978, Section 819.11(a) contained the language of Section 515(b)(12) of the Act, which provided that the potential for recoverability after "reclamation'' has to be maximized. Several commenters thought that this was misleading, since the Act's goal is to maximize recovery during augering (Section 515(b)(1)), as well as after reclamation (Section 515(b)(12)). Accordingly, the language has been revised to refer to surface mining activities, not reclamation.

Section 819.11(b) requires the consent of the regulatory authority, MSHA, and the State mine safety agency for augering closer than 500 feet to an underground mine.

One comment was received suggesting a reduction of the 500-foot distance requirement between auger and underground mining. The argument was made that West Virginia safety laws require that no boreholes are to be drilled in underground mines within 50 feet of surveyed abandoned workings or 200 feet of other known workings which provides adequate protection. Section 515(b)(12) of the Act requires operators to refrain from surface coal mining within 500 feet of active and abandoned underground mines in order to prevent breakthroughs and to protect the health and safety of miners. This Section of the Act and Section 818.15 of the final regulations further allow the regulatory authority to permit an operator to mine closer to an active or abandoned underground mine operation after a finding by the regulatory authority that the requirements of Section 515(b)(12) of the Act will be met. The present language in Section 819.11(b) allows adequate opportunity for the operator to assure the regulatory authority that auger mining closer than 500 feet from abandoned or active underground mines can be conducted safely and efficiently. Accordingly, no change in the regulations was made in response to this comment.

A commenter questioned the logic of the requirement in proposed Section 819.11(c)(1) that auger holes discharging water be plugged or sealed within 72 hours. Changes were made in this Section to shorten and clarify the regulatory language. The Office concurred that a hazardous or adverse environmental condition may be created by the sealing of auger holes emitting toxic- or acid-forming material. The language in this Section has been expanded to provide the regulatory authority, and the operator, with options of how best to handle these specific situations. If the treatment of the discharge water is a more realistic and viable solution, treatment of the discharge water to meet applicable water quality standards may be permitted. The alternative allows more flexibility to the operator and may result in a reduction of the toxic- or acid-forming material introduced into the local water by having the discharge treated immediately, rather than discharging for 72 hours. If a permanent discharge is anticipated, however, the operator must comply with Section 819.11(d).

As proposed, this Section included specific requirements for drainage from unsealed auger holes through the backfill. This provision has been deleted as unduly restrictive. Other Sections of these regulations require stability of backfill and adequate drainage. Deleting the proposed requirements allows the operator and the regulatory authority to develop specific measures for the site.

A few commenters requested that the words "and conservation'' be deleted from Paragraph 819.11(e)(2) on the grounds that conservation is contrary to Section 102(k) of the Act. In fact, Section 515(b)(9) of the Act specifically authorizes a prohibition against augering "if necessary to maximize . . . conservation of the solid fuel resources.'' Accordingly, OSM did not modify this Section in response to these commenters' requests.

Many commenters recommended that auger mining be permitted in previously mined areas without imposing the requirement that the land be returned to approximate original countour. The alternatives considered as a result of these comments included: Require total reclamation; allow reclamation which does no more than reduce the highwall angle and cover and seal the holes; and allow reclamation which does no more than seal and cover the holes, cover the highwall to the maximum extent possible with the existing spoil, and stabilize the remaining highwall.

{15281}At many sites where surface mining operations occurred before the Act was passed, pits containing significant augerable reserves were left. In some of these pits, the disposal of overburden precludes restoration to the original contour. This can occur when the spoil has been spread over a large area rather than piled, or when the spoil has stabilized environmentally and is not a health or safety hazard. In these cases, the environment may be damaged more by the attempts at restoration than leaving the old workings in their stable condition, since additional spoil might have to be hauled from other sites, thus increasing the area of disturbance.

By requiring total reclamation, auger operations conducted in pits that predate the permanent regulations must meet all the requirements of the Act, including elimination of the highwall and restoration of approximate original (premining) contour. Reducing the highwall and covering and sealing holes would not be possible on those sites where insufficient spoil is available for complete covering of the highwall, and would result in reclamation short of approximate original contour. Less reclamation would permit the most auger mining of abandoned pits, but would result in a highwall being left at some sites.

The Act requires both that approximate original contour be restored and that all highwalls be eliminated. What few variances the Act authorizes from approximate original contour are implemented in Parts 824, 826, or other regulations of this Subchapter. Thus OSM believes that the Act requires total reclamation. The regulatory authority must prohibit auger mining in areas previously mined, if insufficient spoil is available to reclaim the affected lands in compliance with the provisions of this Part, Subchapter K and the permanent regulatory program.

Although certain coal reserves will be removed from production, the Office has required total reclamation because the Office has seen no evidence to suggest that these coal reserves are critical at this time. Sufficient reserves are available from other sources so that redisturbing an area which cannot be reclaimed according to the provisions of this Subchapter is not necessary. See OSM's regulatory analysis for a discussion of reserves lost as a result of these rules. The Office also believes that additional spoil may be created if future economics of coal production improve, thereby allowing a higher overburden-to-spoil ratio which would allow reclamation in accordance with requirements to restore approximate original contour. The Office plans to initiate an investigation to review the various physical constraints and operational problems which prevent mining of these presently unminable areas and prevent compliance with the environmental protection standards.

The Office modified the proposed language in Section 819.11(e)(1) to reflect more adequately the wording in the Act in reference to water quality.

SUBCHAPTER K -- PERMANENT PROGRAM PERFORMANCE STANDARDS, 30 CFR PART 820 -- SPECIAL PERMANENT PROGRAM PERFORMANCE STANDARDS - ANTHRACITE MINES IN PENNSYLVANIA

SECTION 820.1 Scope.

This Section provides that this Part applies exclusively to those persons seeking to engage in anthracite surface coal mining and reclamation operations in Pennsylvania under a regulatory program for that State, and it implements Section 529 of the Act. Specific performance standards are established by this Part in lieu of the performance standards found in 30 CFR Parts 816-817, and not in addition to them.

SECTION 820.2 Objectives.

This Section requires that environmental protection standards for anthracite surface coal mining and reclamation operations be adopted through the issuance of special regulations. The legislative history of Section 529 of the Act and the Office's understanding are such that the special provisions apply only to those States having laws which existed as of August 3, 1977.

Pennsylvania was the only State known to have established rules, regulations, and performance standards for anthracite mines in effect on August 3, 1977. The language of Section 820.2 has been modified from the proposed regulations to clarify that the standards being adopted are those that were in effect on the date the Act passed, as required under Section 529 of the Act.

SECTION 820.11 Performance standards: Anthracite mines in Pennsylvania.

In drafting this Part, several different approaches were considered. The existing structure of the proposed standards lists legislation which directly governs the conduct of anthracite surface coal operations. At least 13 laws and regulations have been enacted in Pennsylvania which govern mining and reclamation practices at anthracite coal mines. These laws and regulations are listed in Section 820.11(a). The citations to these laws have been changed from the proposed version to reflect the correct legal citations. It was proposed by some commenters that these 13 statutes and regulations should be annotated to provide a guide to specific performance standards instead of requiring interested persons to be knowledgeable of all 13 laws. Alternatively, OSM considered promulgating minimum Federal environmental performance standards incorporating the minimum regulations required by Pennsylvania. OSM elected to incorporate by listing the laws and regulations as contained in the proposed draft of this Part. This option was considered the more acceptable approach rather than to develop a complex set of provisions of limited applicability that would lengthen the regulations.

Under Section 820.11(b), the Secretary must issue additional regulations as necessary when the Commonwealth of Pennsylvania amends any law or regulation issued for anthracite mining. If the regulations existing as of August 3, 1977 are made less stringent in any manner, the Secretary must elect to develop specific Federal performance standards to supplement the amended State regulation or, of considered desirable, the Secretary may apply the performance standards for surface mining and underground coal mining of Parts 816 and 817. I11The Office added Section 820.11(c) to incorporate by reference the 13 laws and regulations found in 820.11(a) of this Part. This additional language will ensure that the provisions of the Pennsylvania program are enforceable as a matter of Federal law. It also requires that notice of any amendments to the existing laws or regulations or promulgation of additional laws or regulations regarding anthracite surface mining and reclamation operations, which OSM believes should be adopted under the Act, will be published periodically in the Federal Register.

The periodic publishing of these changes will provide a mechanism for keeping the general public, operators, and other interested persons aware of such amendments or changes to the laws and regulations listed in Section 820.11(a).

SUBCHAPTER K -- PERMANENT PROGRAM PERFORMANCE STANDARDS, 30 CFR PART 822 -- SPECIAL PERMANENT PERFORMANCE STANDARDS - OPERATIONS IN ALLUVIAL VALLEY FLOORS

INTRODUCTION.

Part 822 establishes environmental protection performance, reclamation and design stanards for surface coal mining and reclamation operations in the arid and semi-arid areas, of the United States necessary to insure the protection and re-establishment of alluvial valley floors in those areas. Legal authority for Part 822 is Section 102, 201, 501, 503, 504, 506, 507, 508, 509, 510, 515, 516, 517, 519 and 701 of the Act.

{15282}This part is organized into four major sections which will apply to all surface coal mining and reclamation operations on which affect alluvial valley floors in the above described areas. Part 822 contains several terms which are specifically defined in Section 701.5 of the regulations. Part 822 establishes operational requirements for mines which must first be permitted under Section 785.19 of Subchapter G.

Applicability to Underground Mining Activities

(A) The Office has carefully considered whether the alluvial valley floor provisions of the regulations, including the definitions, permit requirements, and Part 822, should be applied to underground mining activities.

Upon careful examination of the Act, the Office has concluded that underground mining activities are subject to the alluvial valley floor provisions of the permanent regulatory program.

Sections 510(a) and (b) of the Act apply without qualification to both surface and underground mining activities. Section 510(a) establishes general criteria for review of both surface and underground mining permit applications submitted pursuant to sections 507 and 508 of the Act. Section 510(b)(3) of the Act requires the regulatory authority to find, prior to approval of a permit, that the proposed operation has been designed to prevent material damage to the hydrologic balance outside the permit area. Sections 510(b)(5)(A) and (B) of the Act specify the prohibitions on mining on alluvial valley floors where farming occurs. All of these sections of the Act expressly apply to both surface and underground mining activities because of the use of the terminology "surface coal mining operations,'' which is defined in Section 701 (28) to include "activities conducted on the surface of lands subject to the requirements of Section 516 "of the Act, which expressly covers surface effects of underground coal mining operations. Thus, underground mining activities regulated under Section 516 of the Act are clearly subject to the alluvial valley floor provisions of Section 510 of the Act. Moreover, Section 516(b)(9) of the Act expressly requires the operator to minimize disturbances of the prevailing hydrologic balance at the minesite and in associated offsite areas and to the quantity of water in surface ground water systems both during and after coal mining operations. Underground mining activities can result in adverse disturbances such as subsidence which can cause material damage to surface and ground water systems supporting alluvial valley floors.

As explained in greater detail at 43 Fed. Reg.

41782 41785 (Sept. 18, 1978), subsidence from underground mining can cause both partial or complete dewatering of aquifers and streams which overlay underground mine workings.

Such dewatering would be caused by fractures in the strata underlying the aquifers or stream beds. Gross surface disturbance need not necessarily be a result of the subsidence which might cause such fracturing. Fracturing and its resulting dewatering, however, clearly could "materially damage the quantity of water in surface or underground water systems that supply'' alluvial valley floors. In addition, surface operations and facilities and the surface effects of underground mining such as subsidence could "interrupt, discontinue, or preclude farming on alluvial valley floors.

The Act requires the operator to prevent subsidence causing "material damage'' to waters on and which supply alluvial valley floors outside the permit area. Further, as required by Sections 510(b)(5)(B) and 516(b)(9) subsidence related to underground mining activities may not materially damage the quantity or quality of water in surface or underground water systems that supply alluvial valley floors where farming exists. See preamble discussion for Section 785.19 incorporated herein by reference.

In addition, Section 516(b)(9) of the Act requires operators to minimize the disturbances to the prevailing hydrologic balance at the minesite and in associated offsite areas and to the quantity of water in surface ground water systems both during and after coal mining operations. This protection of surface ground water systems informs the prohibitions in Sections 510(b)(3) and (b)(5) of the Act to materially not damage waters.

In addition to the authority granted by paragraphs (1) and (9) of Section 516(b) to regulate subsidence and hydrology, paragraph (10) provides authority to apply the performance standards contained in Section 515 "to other surface impacts not specified in this subsection''. To the extent that the surface impacts of mining include the dewatering of groundwater systems associated with alluvial valley floors, the requirements of Section 515 would apply, including Section 515(b)(10)(F) which requires "preserving throughout the mining and reclamation process the essential hydrologic functions of alluvial valley floors. . . ''

Finally, Section 516(d) of the Act requires the application of "provisions of Title V of the Act . . . relating to permits . . . to surface operations and surface impacts incident to an underground coal mine . . .'' The permit requirements of Section 510(b)(5) of the Act are therefore, applicable to underground mining activities.

III.

Technical Literature.

In promulgating Part 822, OSM relied on the technical literature relating to underground mining as discussed at 43 Fed. Reg. 41782 41785 and in the final preamble for Sections 817.12 817.126, as well as the literature used to develop both the definitions in Section 701.5 which relate to alluvial valley floors and the permit requirements of Section 785.19.

IV.

Editorial corrections.

Several changes were made to part 822 to insure internal consistency within the Part and with other provisions of the Office's final rules.

Section 822.11(a) has been rephrased to clarify that it requires continued protection of alluvial valley floors outside the affected area.

Section 822.11(b) has been rephrased to clarify that it requires reestablishment of alluvial valley floors within the affected area, i.e., alluvial valley floors that are to be mined or which have a hydrologic connection with areas that are to be mined.

Section 822.11(c) has been removed because its requirements are now included in the other paragraphs of the Section. I11Section 822.11(d) has been renumbered as Section 822.11(c) and remains unchanged.

Section 822.14(a) has been revised to clarify the different monitoring requirements that must be satisfied in order to preserve the essential hydrologic functions of alleuvial valley floors in unaffected areas, as distinguished from reestablishing essential hydrologic functions of alluvial valley floors in affected areas. In the latter case, the functions can be disturbed but must be reestablished. These revisions have resulted in deletion of Paragraph (b), because its requirements are now contained in paragraph (a).

In Section 822.11(a) (formerly 822.11(a) and (b)) and in Sections 822.14 (a) and (b), the term "permittee'' has been substituted for "person,'' but no substantive change is intended.

V.

Cost associated with spoil handling techniques.

Several commenters alleged that the alluvial valley floor regulations would increase the cost of producing coal due to a 10 to 50 percent increase in spoil handling costs. These cost estimates were derived from a research project sponsored by the Bureau of Mines and conducted by the Montana Agricultural Experiment Station at Montana State University (Dollhopf, D. J. and others, 1977. Selective Placement of Coal Strip Mine Overburden in Montana). This project assessed the occurrence of potentially toxic overburden in mined areas adjacent to the East Fork of Armels Creek in southeastern Montana and was done outside the area mapped as a subirrigated alluvial valley floor during a reconnaissance survey conducted by Hardaway and others (1977). The higher estimated costs resulted from placing a clay cap over selectively placed toxic overburden, while the lower estimated cost was associated with selective placement only

{15283}The Office has decided not to modify the regulations after careful consideration of these comments. First, the report by Dollhopf and others is applicable only to those alluvial valley floors where selective placement of overburden of varying chemical quality would be required to reestablish the essential hydrologic functions. The costs identified by the commenters are thus not applicable to reclamation of all alluvial valley floors and cannot be used without qualification as to their applicability. Because aquifer permeability of sandstone and siltstones is recreated automatically in any dragline operation, the special handling techniques assumed by the report are, in fact, not necessary in all cases to recreate coal aquifers in reestablishing alluvial valley floors (see Dollhopf, 1977, p. 49). Second, Dollhopf assumed that selective handling of overburden would be required upon reaching the salinity guideline concentrations established by the State of Montana as "suspect levels'' for excessive heavy metals concentrations. The report goes on to qualify its findings as follows:

"The presence of inimical materials . . . does not necessarily infer that these materials be specifically handled. It is expected that, in most cases, sufficient dilution of heavy metals will occur during the normal course of coal extraction and spoil placement.''

Thus, the commenter is incorrect in claiming that the alluvial valley floor regulations will cause a 10 to 50 percent cost increase in spoils handling in all cases. However, if the overburden in a mine area is toxic, the costs of selective placement, as in the Dollhopf report, may accurately reflect those measures required to comply with Sections 515(b)(3), 515(b)(10) and 515(b)(19) of the Act. More specifically, Section 515(b)(3) requires that toxic materials be covered. Section 515(b)(10) requires avoidance of toxic mine drainage and Section 515(b)(19) requires revegetation, all of which potentially involve selective placement of toxic spoils or require planning to achieve dilution with non-toxic materials. But if the overburden in a mine area is toxic, then the above-cited provisions of the Act are unavoidable requirements regardless whether there is an alluvial valley floor within the permit area.

Section 822.11 applies the requirements of Sections 510(b)(5) and 515(b)(10)(F) of the Act to preserve the essential hydrologic functions of alluvial valley floors to both (1) those alluvial valley floors that are not supposed to be disturbed and which are therefore "not within an affected area'' and (2) those alluvial valley floors which are within an affected area, including the surface coal mining and reclamation operation itself.

Paragraph 822.11(a) requires operations to be conducted in a manner that preserves throughout mining the essential hydrologic functions of non-affected alluvial valley floors. Alluvial valley floors that are not thoroughly studied pursuant to Sections 785.19(c) (d), because they are found to be hydrologically isolated from the operations, must not be affected in a manner that violates either Sections 510(b)(5) or 515(b)(10)(F) of the Act.

Paragraph 822.11(b) requires operations to be conducted to reestablish essential hydrologic functions of alluvial valley floors within an affected area. It is applicable to those alluvial valley floors which meet the test of Section 510(b)(5)(A), as implemented through Section 785.19(c), and can be mined or affected only as long as there is compliance with Section 515(b)(10)(F) of the Act and all other applicable performance standards. These alluvial valley floors must be studied in sufficient detail pursuant to Section 785.19 (c) and (d) to identify their essential hydrologic functions.

A comment noted that, since operations which are subject to Section 822.11(c) as proposed are typically operations which disturb or affect an alluvial valley floor, it would be appropriate to add the verb "reestablish'' to that paragraph, as preservation of the alluvial valley floor throughout mining operations is not a requirement under those circumstances. The Office agrees and has modified the section accordingly, by applying Paragraph (a) to unaffected alluvial valley floors and Paragraph (b) to affected alluvial valley floors. Thus, Paragraph (a) requires protection of alluvial valley floors that are not mined and which are not to be affected under the permit, while Paragraph (b) addresses affected alluvial valley floors where essential hydrologic functions must be reestablished.

For clarity, Paragraph (c) describes the characteristics supporting the essential hydrologic functions of alluvial valley floors. These characteristics must be evaluated to identify such functions and must be monitored to determine compliance with the Act.

Section 822.12 principally implements the requirements of Sections 510(b)(3) and (5) of the Act, which forbid interruption, discontinuance or preclusion of farming and causing material damage to alluvial valley floors, subject to provisions of Section 510(b)(5). The Office believes that these Sections of the Act provide authority to require cessation of operations that are adversely affecting the alluvial valley floors; this provision is necessary in order to make clear the duty of the regulatory authority and the permittee under such circumstances. See also Sections 517, 518, 521, of the Act. Language in the Section has been clarified to indicate that the regulatory authority must approve remedial measures prior to resumption of mining.

A commenter requested that Section 822.12(b) be limited to effects outside the permit area. The Office did not accept this suggestion because it could allow interruption, discontinuance or preclusion of farming on an alluvial valley floor, and the commenter offered no evidence that the Act was intended to allow such effects on farming.

One commenter wished to exclude temporary dewatering from the meaning of material damage as used in this Section. Another recommended that "material'' or "materially damage'' be defined as in Section 785.19, so that it would apply only to dewatering which would reduce the post-mining amount of irrigable land, as compared to premining conditions. OSM has accomplished this result by moving the definition of "material damage'' from Section 785.1 to Section 701.5, making it applicable to Section 822.12. Temporary dewatering may thus be allowed, if it does not preclude, interrupt or discontinue farming on an alluvial valley floor which is significant to farming. The phrase "materially damage the quantity or quality of water'' is defined in Section 701.5, but examples of conditions which the definition is intended to include are provided in Section 785.19(e)(3).

A few commenters addressed the desirability of allowing temporary dewatering or beneficial lowering of the water table in an alluvial valley floor after mining. These comments have been taken into account by the previously described shift of the definition of "material damage'' from Section 785.19 to Section 701.5, so that the term applies only to significant and adverse changes, rather than all changes. Thus, beneficial dewatering that does not adversely affect an alluvial valley floor might be allowed, but temporary dewatering is allowed only for alluvial valley floors located in affected areas and only when the essential hydrologic functions can be reestablished.

{15284}In connection with Section 822.13, a commenter suggested changing the term "agricultural activities'' to "farming.'' This change was not accepted because Section 515(b)(10)(F) of the Act applies to all alluvial valley floors, not just those with farming; and the performance standards of Part 822 must likewise apply to all alluvial valley floors.

In connection with Section 822.14(a), another commenter proposed to replace the term "agricultural utility'' in Section 822.14(a) and the term "agricultural use'' in Section 822.14(d) with the term "farming.'' This change was not accepted because monitoring requirements of Part 822 apply to alluvial valley floors which are defined in the Act to include "subirrigation or flood irrigation agricultural activities.''

Section 822.14 (a) and (b) has been reworded to avoid conflict with Section 510(b)(5)(A) of the Act. In particular, Sections 822.14 (a) and (b) have been revised to distinguish between the objectives of monitoring when alluvial valley floors are within an affected area and when they are not. Both the current agricultural use that is relying on the essential hydrologic function, as well as any potential agricultural uses, need to be protected either by not disturbing the essential hydrologic functions if the alluvial valley floor is outside the affected areas, or by reestablishing the important characteristics that support the essential hydrologic functions of the alluvial valley floors if these floors are within the affected area.

Some commenters noted that proposed Sections 822.13 and 822.14(a) appeared to require the operator to maintain existing and future agricultural uses and productivity after mining and reclamation. In response to the comments, the phrase "and maintained after mining'' in Section 822.13 was deleted. It was not the Office's intent in the proposed regulations to require long-term maintenance, but rather that agricultural uses be reestablished in a permanent manner that will continue after bond release. In Section 822.14(a), the word "maintained'' was deleted for the same reasons.

Section 822.14 has been reorganized to distinguish between alluvial valley floors within and without the affected area, because this distinction parallels the combined requirements of Section 510(b)(5)(a) and 515(b)(10)(f) of the Act. This revision allows disturbance of alluvial valley floors that have been identified as "affected'' due to their location within the affected area; but it prohibits disturbance of alluvial valley floors that are either significant to farming, and thus cannot be mined, or located outside the affected area, and thus should not be affected by mining.

Commenters also recommended wording changes in two sections. These commenters argued for substituting "reestablishment of hydrologic characteristics,'' in place of "reestablishing agricultural utility'' in Section 822.13, and "land capability,'' in place of "agricultural utility'' in Section 822.14. The changes would not, however, adequately account for the agricultural aspects of alluvial valley floors, as required by Section 701(1) of the Act. Therefore, they were not adopted.

Several commenters noted that the proposed monitoring program of Section 822.14(c) appeared to require monitoring of alluvial valley floor characteristics that should have been identified prior to mining. The Office notes that this paragraph was designed to ensure that monitoring further describe important characteristics of alluvial valley floors, or to identify ones that may have been missed in the permit application review phase.

Monitoring required under Section 822.14(c) may not differ from the normal hydrologic monitoring required at most sites, but should be designed to check periodically that the essential hydrologic functions identified prior to mining are, in fact, those that should be reestablished. In a complex system such as an alluvial valley floor, it is possible that some important characteristics may be poorly described during pre-operations investigations. The monitoring system is to be designed to observe any major differences between those identified in the mine plan and actual onsite conditions.

A commenter asked that monitoring data be made routinely available to the public through the regulatory authority (paragraph 822.14(d)). This comment was accepted, pursuant to Sections 102(i) and 517(f) of the Act.

A commenter requested that clarifications be made to requirements for operations that were excluded from the permit approval/denial criteria by the proviso to Section 510(b)(5) of the Act. In part, this comment also related to Section 506(d)(2) of the Act, since the proviso of that subparagraph excludes from compliance with Section 510(b)(5)(A) and (B) areas covered by permit renewal applications for lands which were previously identified in a reclamation plan approved by a state in the year preceding August 3, 1977.

The proposed rules on alluvial valley floors did not include this particular exclusion. However, the proviso was addressed in the preamble to the regulations (43 Fed. Reg. 41788, September 18, 1978). Proposed Sections 785.19 and 786.17 did not distinguish between existing and new mines, except in the case of applying Section 510(b)(5)(A), as in proposed paragraph 786.17(b). The exclusion for pre-Act mines in Section 510(b)(5) is discussed in the context of Section 785.19(e)(1).

In response to the commenter, the Office added clarifying language to Section 785.19(e)(1)(i) only, since the remaining provisions of Section 785.19 apply to all current mining operations. They apply because those provisions implement Sections 510(b)(3) and 515(b)(10)(F) of the Act. Language was also added to Section 785.19(e)(1)(i), to indicate that, if a valid State permit was issued in the year preceding August 3, 1977, and that permit was based on a reclamation plan that specifically addressed the lands for which a new or renewed permit is now sought under Section 510(b) or 506(d), then compliance with Section 785. 19(e)(1)(i) is not required. The same language was also added to subparagraph 822.12(d), to ensure that the provisions of Section 510(b)(5)(A) of the performance standards are correctly applied.

Two commenters urged the Office to recognize that some alluvial valley floors could be reclaimed. One suggested that reclamation procedures could improve certain alluvial valley floors. The Office recognizes that alluvial valley floors passing the tests of Section 510(b)(5)(A) of the Act can be reclaimed. Thus, it has implemented Section 515(b)(10)(F) of the Act in the form of Part 822, to provide environmental protection performance standards for operations in, as well as adjacent to or under alluvial valley floors. The Office, however, has no evidence of improvements occurring to natural alluvial valley floors as a result of coal mining. The Office is of the opinion that flood-irrigated alluvial valley floors could be widened, if soils were available. Whether the valley becomes a wider alluvial valley floor would depend on the availability of water and suitable soils.

The Office saw no need to change the regulations in this regard and was, in fact, not requested to do so by the commenters.

SUBCHAPTER K -- PERMANENT PROGRAM PERFORMANCE STANDARDS, 30 CFR PART 823 -- SPECIAL PERMANENT PROGRAM PERFORMANCE STANDARDS FOR OPERATIONS ON PRIME FARMLAND

Part 823 contains regulations for achieving the soil-reconstruction requirements of Section 515(b)(7) of the Act and the revegetation provisions of Sections 510(d)(1) and 515(b)(20), which require equivalent or higher levels of yield for long-term intensive agricultural post-mining land use. This Part requires that persons conducting surface coal mining activities on prime farmland, as defined in Section 701.5, must return such land to a level of yield equivalent to or higher than its premining yield. It sets forth the procedures for the systematic removal of soil horizons, stockpiling, site preparation prior to restoration, systematic replacement of soil horizons, and revegetation of the disturbed areas. Authority for this Part is found in Sections 102, 210, 501, 503, 504, 506, 507, 508, 510, 515, 516 and 517 of the Act. Further discussion of the authority, basis, and purpose for this Part is contained in the preamble to the proposed regulations (43 FR 41788 41789, September 18, 1978).

{15285}Technical literature used in developing these regulations included:

Bear, F. E. 1953. Soils and fertilizers. 4th edition. John Wiley and Sons, New York. 420 pp.

Browning, G. M. 1974. Seasonal distribution of soil moisture under different crops. Soil Science Society of America. Proceedings, 1946. Vol. 11, sec. VI, pp. 571 521.

Chapman, A. G. 1967. How strip-land grading affects tree survival and growth. Southern Illinois University School of Agriculture, Publication 29. 34 pp.

Grandt, A. F. 1978. Mined-land reclamation in the interior coal province. Journal of Soil and Water Conservation. Vol. 33, No. 2, pp. 62 68.

Jones, R. G. 1977. Soil Survey of Palo Alto County, Iowa. U.S. Soil Conservation Service. 100 pp. and 84 maps.

McCormack, D. E. 1974. Soil reconstruction: For the best soil after mining. Second research and applied technology symposium on mined-land reclamation, at Coal and the Environment Technical Conference, October 22 24, 1974, Louisville, Ky., National Coal Association, Washington, D.C., pp. 150 162.

McCormack, D. E. 1976. Soil reconstruction: Selecting materials for placement in mine reclamation. Mining Congress Journal. Vol. 62, No. 9, pp. 32 36. (Reprint.)

Plass, W. T. 1978. Reclamation of coal-mined land in Appalachia. Journal of Soil and Water Conservation. Vol. 33, No. 2, pp. 56 61.

USDA. 1955. The yearbook of agriculture, 1955. U.S. Government Printing Office, Washington, D.C. 751 pp.

U.S. Soil Conservation Service. 1951. Soil survey manual. U.S. Department of Agriculture, Agriculture Handbook No. 18. 503 pp.

Wadleigh, C. H. 1955. Soil moisture in relation to plant growth. Yearbook of agriculture, water. U.S. Department of Agriculture, pp. 358 361.

823.1 and 823.2.

Several comments were received on Sections 823.1 and 823.2, the introductory Sections of this Part. A commenter suggested amplification of the statement of scope in Section 823.1, to indicate that the requirements of Part 823 are in addition to all other performace standard requirements in Parts 816 and 817. This change has not been made in Section 823.1 but has been adopted in Section 810.11.

Another commenter requested that the term "productivity'' in Section 823.2 be changed to "productive capacity'' in order to clarify that Part 823 covers not only soil-handling and reconstruction standards, but also standards for the success of revegetation on prime farmlands. OSM agrees that this phrase better explains the scope of Part 823, and the final regulation has been revised accordingly.

SECTION 823.11 Prime farmland: Special requirements.

Section 823.11 establishes special requirements for soil handling and proof of revegetation success. Paragraph (b) requires that soil horizons be removed before any drilling, blasting, or mining and that these materials be protected from wind and water erosion. Paragraph (c) requires that revegetation success on prime farmland be determined by comparing actual crop production on the reclaimed mine area to a target level of crop production specified in the permit. The specified level will be set by the regulatory authority in consultation with the Secretary of Agriculture, as required in paragraph 785.17(b)(8). This target level will reflect the per-acre production which would reasonably be expected for the crop(s) specified in the approved reclamation plan. This level will be based upon the weighted average production of the crop(s) on each prime farmland soil present in the permit area. Some changes have been made in Section 823.11 to reflect more specific comments on Sections 823.12, 823.13, and 823.14, as discussed in the following paragraphs.

SECTIONS 823.12 Prime farmland: Soil removal; and, 823.14 Prime farmland: Soil replacement.

Sections 823.12 and 823.14 deal with the removal and replacement of the various soil horizons in accordance with Section 515(b)(7) of the Act. Because prime farmland soils are defined by the Department of Agriculture as those soils having the best combination of certain physical and chemical prooperties for plant growth, there will be a few circumstances where it will be more desirable to substitute selected overmerge burden material for A and B horizons in soil reconstruction. Where substitute material can be shown to be equal to or more favorable than the A and B horizons for plant growth, its use may result in less costly soil recontruction and possibly a more productive soil. Nevertheless, OSM believes that removal and replacement of the A and B horizons in their original sequence offer the highest potential for creation of a final root zone of depth and quality comparable to that which existed in the natural soil.

Several commenters suggested various changes in Section 823.12(a) to allow mixing or consolidation of soil horizons where it could be shown that mixing would therefore, be beneficial to the soils or would result in equivalent or higher yields. Because stockpiling of other suitable soil materials is provided in Section 823.13, OSM has not made any change here in response to these commenters' suggestions.

Sections 823.12(b) and 823.14(a) of the proposed regulations required that the minimum depth of soil reconstruction be 48 inches, or a lesser depth if root-inhibiting layers are present. Numerous comments dealt with the 48-inch depth of reconstruction. Many commenters opposed the 48-inch depth on the grounds that some prime farmland soils are less than 48 inches deep and that operators should not be responsible for reconstructing such soil below the natural premining depth. Other comments supported the 48-inch depth unless the regulatory authority approves a greater depth.

OSM agrees that there would be no beneficial effect from reconstruction of bedrock or other layers in the upper 48 inches that would inhibit roots and have little or no beneficial effect on soil productivity. For the reasons stated below, OSM has revised the final regulations as follows: (a) The requirement that soils be reconstructed to a depth of 48 inches is retained, except for a lesser depth in those soils that contain root-inhibiting layers; and (b) this requirement is now located in new Sections 823.12(b) and 823.14(a) which have been revised to cover the required depth of soil reconstruction.

Several properties of certain soil horizons inhibit root penetration (U.S. Soil Conservation Service, 1951, p. 249). Such horizons are easily identifed by field examination, and depth of root penetration is readily observed. Where the depth to such horizons is less than 48 inches, OSM considers the lesser depth to be the depth of the root zone for the purpose of the final regulations. In soils without root-inhibiting soil horizons, the depth of rooting is less apparent.

To carry on their principal functions effectively, roots require soil horizons that are able to supply adequate water, air and nutrients (U.S. Soil Conservation Service, 1951, p. 249). The amount of plant-available water held by soils is determined largely by the size distribution of soil particles and their structural arrangement (Bear, 1953, p. 93). Loam, silt loam, or clay loam soils may hold 2 inches or more of available water per foot of soil depth, whereas sand or other coarse-textured materials hold less than 1 inch (U.S. Department of Argriculture, 1955, p. 120). The roots of oats, wheat, barley, and corn penetrate to depths greater than 6 feet (Bear, 1953, p. 192). Alfalfa has been shown to remove all of the available water from soil between a depth of 3 to 8 feet in Marshall silt loam (Browning, 1947, pp. 517 521). Corn plants use 10 to 16 inches of water per year (Wadleigh, 1955, pp. 385 361), and remove water to depths of 5 feet or more (U.S. Soil Conservation Service, 1951, p. 250). A comparison of yields for similar prime farmland soils in Palo Alto County, Iowa (Jones, 1977, p. 67) shows yield reductions of 12 percent for corn, 25 percent for soybeans, and 17 percent for alfalfa-brome hay, where available water capacity in the 37-to-60 inch layer is only 0.7 of an inch compared to 3.8 inches in the same zone of the higher yielding soils.

{15286}Under these conditions, it is apparent that the water-capacity of the 37- to 60-inch zone contributes to crop yields. Under favorable conditions, some plant roots penetrate to much greater depths than is commonly believed (U.S. Soil Conservation Service, 1951, p. 250). Soil reconstruction only to the depth of root penetration of a shallow-rooted crop, such as onion, would, therefore, be inadequate to restore the productive capacity for a deep-rooted crop such as corn.

Although there is limited information on the minimum soil depth required to restore the productive capacity of prime farmland after mining, OSM believes that there is sufficient evidence, on the basis of the foregoing data and the works of McCormack (1976, p. 32 36) and Plass (1978, pp. 56 61), to establish a minimum depth of 48 inches for reconstruction of prime farmland soils where there is no root-inhibiting layer. The 48-inch depth should be a minimum to restore an adequate root zone, provide adequate water-holding capacity, and restore soil productive capacity. Where there are root-inhibiting layers, however, reconstruction to a lesser depth will be allowed. This provision of the final regulation should also resolve the concerns of several commenters about fragipans and/or toxic layers that restrict root development; the fragipan and/or toxic layers will not have to be disturbed or mixed into the soil of the root zone when these materials will inhibit root development or hinder vegetative growth.

A commenter pointed out that soil removal and replacement should take place only when normal farming practices would permit tillage of the soil. OSM has rejected that comment because this requirement would be very difficult to enforce. Also, the soil-moisture content that permits tillage without damaging soil structure is not well defined and would vary between soils; some soils have a more narrow moisture range (that would permit tillage) than others, and some soils dry more quickly than others. Section 785.17(b)(3) of the final regulations requires that prime famland soils be reconstructed to a bulk density comparable to the premined soil. Operators will find that, to meet the bulk-density requirement, the soil will have to be moved only under optimum moisture content and with proper equipment. Thus, OSM believes that the final regulations will satisfy this commenter's concerns.

Another commenter felt that the regulatory authority should specify the thickness of A horizon to be removed and replaced under Sections 823.12(b) and 823.14. This recommended change would allow the regulatory authority to authorize, for example, replacement of less topsoil (A horizon) than occurred in the natural soil where reconstructed productivity will not be affected. The commenter suggested that the topsoil not replaced could be placed on non-prime farmland areas where the original topsoil was thin or absent. Section 785.17(b)(5) of the final regulations provides for regulatory authority approval of the use of substitute soil material when adequately documented by the applicant. Thus, the burden of proof of soil quality after reconstruction is on the applicant. OSM has decided not to change this requirement because Section 823.14(a) already provides for minimum and maximum restoration depths and Section 785.17(b)(5) also provides for the use of other suitable materials when the operator can show, through documentation, that other materials can be used to achieve the desired level of production.

Several commenters pointed out that the need for scarification, as required in Section 823.14(b), depends upon site-specific factors such as soil, compaction, climate, and topography. They argued that requiring scarification in all situations ignores the fact that, under certain site-specific conditions, the procedure could result in adverse conditions for equipment operation and could produce accelerated erosion or excessive compaction. Moreover, they claimed that prime farmland is relatively level so that elimination of potential slippage is not a problem, and that certain overburden types probably would not be compacted sufficiently to warrant the practice. OSM agrees with these comments and has altered Section 823.14(b) accordingly.

In connection with Sections 823.14(c) and (d) of the proposed regulations, several commenters raised questions regarding permeability as an adequate measure of soil reconstruction and use of the phrase excessive compaction; they suggested that bulk density be used as a standard for measuring compaction. Commenters also pointed out that permeability is difficult to measure and requires considerable replication to establish a norm for a single soil. By contrast, bulk density, as a direct measurement related to compaction, is easier to measure than permeability for determining the adequacy of soil reconstruction. OSM has considered these comments and agrees that bulk density is a more suitable standard. Therefore, Sections 823.14(c) and (d) have been revised and relettered to establish standards for the moist bulk density of reconstructed soils and to specify the thickness of replaced soils. Section 823.14(e) is the revised version of Section 823.14(d) of the proposed regulations, and Section 823.14(f) is the relettered version of Section 823.14(e) of the proposed regulations but is otherwise unchanged.

The final regulations apply these standards to the entire soil to be reconstructed, rather than just the upper 20 inches, as set forth in Section 823.14(d) of the proposed regulations. OSM has made this change because compressed soils below this depth (20 inches) are out of reach of the chief structure-forming processes, such as wetting, drying, freezing, thawing, organic residues, and soil flora and fauna populations; and because few plants can grow in such compact soils (Chapman, 1967, pp. 17 22).

In deciding to substitute bulk density for permeability as a measure of compaction, OSM has also considered the following factors. Bulk density data are used to compute available water capacity, total pore space, and other soil properties. The moist bulk density of soil indicates the pore space available for water and roots. A bulk density of more than 1.6 can restrict water storage and root penetration. Moist bulk density is influenced by the texture, kind of clay, content of organic matter, and structure of the soil. A great deal of bulk-density data have been collected by the National Cooperative Soil Survey. These data have been analyzed, and bulk-density values have been established for many soil series. Where established, these values are recorded on the soil-survey interpretation record for the soil series and are available from the Soil Conservation Service. Use of these bulk density data, in lieu of sample data from the permit area, may be approved by the regulatory authority, as provided in Section 785.17(b)(3).

{15287}Some commenters asked what references supported the concept that all soils have a permeability quotient of 0.06 inches per hour. Others suggested that the 0.06-inch requirement of the proposed regulations may result in more compact soils and suggested that premining and postmining checks of permeability be made. Also, some stated that excessive compaction varies with the specific crop. OSM has adopted moist bulk density as a measure of compaction because increasing bulk density will reduce soil productivity by inhibiting root penetration, reducing air space, and influencing soil permeability. Thus, the final regulations provide that, to assure postmining productivity of the reconstructed prime farmland soils, only 10 percent of the reclaimed area can have a moist bulk density greater than 0.1 gram per centimeter more than the values stated in the approved permit.

SECTION 823.13 Prime farmland: Soil stockpiling.

Section 823.13 is designed to ensure that steps are taken to avoid the mixing of soil horizons when stock-piled. Such mixing is best prevented by total and complete separation of soil horizons. The area for stockpiling needs to be selected carefully to assure that it is not in a drainageway where water containing acids and other toxic materials may cause contamination of the soils.

Several commenters pointed out that other suitable soil materials may be used for prime farmland reconstruction in addition to the A, B, or C horizons, if approved by the regulatory authority, and that the regulations should permit stockpiling of different horizons with other material. OSM agrees that other suitable material can be used, and this phrase has been added to Section 823.13. Once such other materials have been approved by the regulatory authority, they may be stockpiled with the corresponding soil horizon. This provision is also discussed in the preamble to Section 785.17(b)(5).

Commenters also expressed concern about damage to micro-organisms, organic content, and fertility from stockpiling topsoil (A horizon) for long periods of time (20 to 30 years). OSM agrees that some damage will occur but believes that this damage is not irreversible and that any such losses can be restored or replenished once the soil layers are reconstructed (McCormack, 1974, p. 151).

A commenter pointed out that the regulatory authority does not have the power to grant or deny permission to stockpile soil that cannot immediately be replaced, as the proposed wording of Section 823.13 implied. OSM agrees with this concern and has adopted new wording to delete the need for approval by the regulatory authority. According to several commenters, soil materials may be removed, stock-piled, and replaced without separating the A, B, or C horizons when a qualified soil scientist certifies that the combined materials will have equal or better productivity. The final regulations have been amended to clarify this point. These materials may be stockpiled together if approved by the regulatory authority, as provided in Section 785.17(b)(5).

SECTION 823.15 Prime farmland: Revegetation.

Section 823.15 is a new Section which has been added to consolidate and clarify the proposed revegetation standards for prime farmland. These standards are intended to (1) ensure that the level of productivity of prime farmland will be restored to a condition capable of supporting the uses that the land was capable of supporting before mining, and (2) demonstrate that the yield from the prime farmland has, in fact, been restored to pre-mining levels.

The revegetation standards for prime farmland were located in verious places in the proposed rules. Section 816.111(a) stated that for prime farmland the reclamation requirements of Part 823 shall apply. Section 785.17(e)(5) required that cropping and restoration of adequate soil moisture be achieved during the period from completion of final regarding until release of the performance bond. The criteria and schedule for the release of the performance bond for prime farmland, set forth in Sections 807.12(a) and 807.13(b)(2), included requirements that (1) the permittee has met the performance standards of Part 823, and (2) no portion of the bond may be released until equivalent or higher levels of yield are achieved. Section 785.17(e)(6) required that data be presented in the permit application which demonstrate that the proposed method of reclamation achieves, within a reasable time, equi valent or higher levels of yield than existed before mining. All of these requirements have been combined to make up the new Section 823.15 of the final regulations.

Under Section 823.15, the operator need not place the land immediately into cropland but must, as a minimum, fulfill the requirements of the Section during the period that the land is held out of crop production. According to Grandt (1978, p. 65), approximately 5 years' growth of deep-rooted legumes, such as alfalfa and grasses, on sites where the topsoil has been replaced should help restore the soil quality for cropland uses. Nevertheless, because Section 515(b)(16) of the Act requires that reclamation proceed as contemporaneously as possible, delay in the reclamation of disturbed lands is to be avoided. To ensure minimum delay in restoring the productive capacity of prime farmland, a 10-year limit has been placed on the time which can elapse between soil replacement and the initiation of the performance test for revegetation success.

Crop-production fluctuation in response to natural variations in temperature, moisture availability, precipitation, and other factors can vary considerably within a relatively small area as a result of these factors. To allow for these fluctuations, Section 823.15(c) requires an operator to demonstrate with three successive crop plantings that the average yields are equal to, or greater than, the predetermined target yields. Compensation for weather abnormalities is based upon the concept that, if the weather depresses the crop yields for the entire crop-growing area, the operator should be able to adjust the yields accordingly. In years where the average crop yield is elevated or depressed, the operator should be able to adjust the yield data for that growing season accordingly. OSM suggests that, if the average crop growth area yield is reduced by 12 percent, the operator should be permitted by the regulatory authority to adjust the yield data accordingly when the data are offered in support of the claims for bond release.

Several commenters were concerned with various aspects of the revegetation criteria. One commenter stated that it was nearly impossible to restore prime farmland to its highest capability on a short-term basis, while other commenters suggested that a reasonable time should extend to 5 or 10 years. Another commenter wrote an entire new revegetation section and proposed that it be adopted in the final regulations. In general, these commenters were concerned with the revegetation standards for prime farmland including the time period needed to establish equal or higher levels of yield. OSM believes that the provisions of Section 823.15 will satisfy the concerns of the conmenters because it will be possible for operators to use soil-building crops such as deep-rooted, nitrogen-fixing legumes and grasses (which can include small grains and sorghums) that can be tilled into the soil to increase organic matter when necessary. These soil-building practices can be used immediately following soil replacement and before initiation of the performance test for revegetation success.

SUBCHAPTER K -- PERMANENT PROGRAM PERFORMANCE STANDARDS, 30 CFR PART 824 -- SPECIAL PERMANENT PROGRAM PERFORMANCE STANDARDS - MOUNTAINTOP REMOVAL

Part 824 provides the conditions with which persons engaged in the surface mining methods known as mountaintop removal must comply when surface coal mining and reclamation operations are exempted from the requirement to restore the affected areas to their approximate original contour. This Part is designed to implement Section 515(c) of the Act and would apply to persons who wish to conduct mining under regulatory programs involving deviations from the approximate original contour requirements of Section 515(b)(3) of the Act, Subchapter K, and the applicable regulatory program. This Part must be read together with Section 785.14 which contains the permit requirements that must be met before mountaintop removal mining can be approved.

A commenter requested that the regulations either ban mountaintop removal or make it economically more difficult. This commenter indicated that permanent destruction of the mountains only benefited the rich, and not the people of more modest means in the area where mining will occur. OSM has not modified the proposed mountaintop removal rules in response to this comment. Congress considered the issue of mountaintop removal and determined that it should be permitted, provided the conditions of Section 515(c) of the Act are met. OSM feels that the adoption of this commenter's request would be contrary to the Congressional mandate, which balanced environmental protection, land use needs and national energy goals in enacting the mountaintop removal provisions of the Act. Of course, if State or local land use plans call for the retention of mountaintop contours, a regulatory authority may designate an area unsuitable for mountaintop removal mining in accordance with the provisions of Subchapter F.

SECTIONS 824.1 and 824.2 Scope and Objectives.

Sections 824.1 and 824.2 set forth the scope and objectives of this Part. These Sections have not been substantively changed from the version proposed September 18, 1978. The words "and this Chapter'' have been added to the end of Section 824.2(c) to emphasize the role of this Part in the regulatory scheme implemented under the permanent regulatory program.

It was considered appropriate under Section 515(c)(2) of the Act to permit the mining of ridges under the mountaintop removal variances, in order to promote the maximum utilization and conservation of the solid fuel resource being recovered as stipulated by Sections 102(f) and 515(b)(1) of the Act. Mining must, however, recover all coal resources in ridges to assure maximum recovery up to the economic limits available to the operator, thus assuring the area will not be disturbed again.

The intent of OSM is, however, that the ridge must cover a sizable area in comparison to the total mountaintop. For example, if a ridge extended for a distance of one or more miles away from the mountaintop, it would be acceptable as a mountaintop removal site, even if the coal seam continued into a mountain at one end of the ridge and the portion of the seam in the mountain is not removed. However, the ridge would have to be underlain by a large block of coal and the variation from the requirement to return to approximate original contour could be approved only if the entire seam in the ridge is removed, to insure maximum recovery of the resource. On the other hand, if the proposed operation covered a small parcel of land (e.g. a spur), the permit for a mountaintop removal variance would have to be denied.

Precise definition of acceptable versus unacceptable mountaintop removal configurations is difficult to establish on a general basis. OSM believes that the regulatory authortiy should determine the merits of each mountaintop removal request on a case-by-case basis. OSM intends, however, that the final cut shall be backfilled and graded in accordance with the environmental protection standards set forth in 30 CFR Part 816.

OSM considered restricting mountaintop removal to situations where the coal seam was daylighted on all sides and completely removed from all ridges and mountains through which it ran without a break. This alternative was rejected as an overly narrow reading of the phrase "entire coal seam'' in Section 515(c) of the Act. The alternative selected will facilitate more coal recovery than this more restrictive alternative.

Another comment was received which suggested expansion of Section 824.2. The comment suggested expansion of the Section's objectives to encourage mining practices which will result in an improved postmining land uses. This suggestion has been rejected because the intent of the objectives provision is to present an abbreviated overview of the purpose of each section or Part of the regulations. The insertion of the additional language which was suggested would be redundant. Potential postmining land uses are adequately covered in other sections of the part.

Other comments were received which suggested the banning of mountaintop removal operations in certain parts of Appalachia. These suggestions have not been accepted because OSM feels that they are contrary to the intent of the Act. The Office believes that the regulatory authority should have the discretion of determining when variances to the approximate original contour should be provided. Of course, under Section 522 of the Act and Subchapter F, a regulatory authority might elect to prohibit mountain top removals in a particular area.

SECTION 824.11 Mountaintop removal: Performance standards.

Most of the provisions of Section 824.11, the applicable performance standards, come directly from the Act and are substantially as proposed September 18, 1978. Those provisions are discussed in the preamble to the proposed version of this Part at 43 FR 41789 (September 18, 1978).

A comment was received which requested that Section 824.11(a)(2) be changed to allow mountaintop removal mining to recover only a portion or part of the coal seam under the mountaintop which may constitute the limit of maximum economic recovery. A similiar alternative for mountaintop removal mining was considered during the drafting of the proposed permanent regulations. See 43 FR 41789 (September 18, 1978). At that time, the alternatives considered included not permitting mining of such areas where the entire coal seam could not be removed and permitting mining of spurs and attached ridge areas under variances to mountaintop removal regulations provided that the final cut is promptly backfilled and the highwall eliminated. Except to the extent that the latter is allowed as discussed above, OSM believes such variances are beyond the authority of Section 515(c) of the Act.

A comment requested denial of variance from approximate original contour requirements at mountaintop removal operations if the postmining land use was proposed to be forestry or silviculture. The alternatives which were considered by OSM included: Require reclamation of land to approximate original contour in compliance with the environmental performances standards of this Subchapter; and Permit a variance to the approximate original contour for forestry and silviculture. I11Section 515(c)(3) specifically states that an equal or better land use is required to permit a variance from the approximate original contour for mountaintop removal operations. That section lists agriculture as a land-use option for which a variance may be permitted. The definition of agricultural use in Section 701.5 includes "the production of animal or vegetable life'' which does not include forestry or silviculture. Silviculture can be accomplished on a wide range of slopes and does not require flat or rolling terrain. Forest or woodland is the primary land use in many of those areas appropriate for mountaintop removal operations. OSM does not believe a variance should be granted in cases where the premining contour was adequate for the proposed post-mining use and, accordingly no variance has been allowed for forestry or silviculture.

{15289}Another comment was received requesting an expansion of the land-use alternatives as an additional exemption to the approximate original contour variance. The alternative postmining land uses which can be considered for permitting a variance to approximate original contour on mountaintop removal operations are recited in Section 515(c)(3) of the Act. OSM has no authority to expand this list. The Office has rejected the request to use a broader definition of post-mining land use options.

In the proposed rules, Section 824.11(a)(4) cross-referenced Section 816.33. This was a typographical error and, in these final rules, the reference has been changed to Section 816.133 as originally intended.

One commenter suggested that the alternative post-mining land use criteria of Section 816.133 should only have to be met if the post-mining land use will be different from the pre-mining use. The commenter felt that if the criteria of Section 816.133 had to be met for all mountaintop removal operations, there would be costly delays in permitting, unwarranted harrassment and unnecessary shutdowns of operations. OSM has decided not to change the regulations in response to this comment. Section 515(c) of the Act clearly requires that, before mountaintop removal is permitted, strict requirements must be met to ensure the post-mining land use will be appropriate to the area, carefully implemented and possible to achieve and maintain. The Act will not allow for an exception in cases where the post-mining land use is the same as the pre-mining land use. OSM believes that these precautions are required because of likely changes in intensity of use, new environmental concerns resulting from altered surface configurations and the irreversible nature of the change being allowed. It should be noted that compliance with Section 816.133 should not present a significant burden where, for example, agriculture is the proposed post-mining land use.

Another comment was received which requested that detailed land use planning should be required to assure that post-mining land use configurations at mountaintop removal operations blend into the surrounding terrain by adequately considering aesthetic values. This recommendation has not resulted in a change in the language of the rule. The Office believes that land use needs should be left to the discretion of a local or State land use agency, and that providing for the regulatory authority to require computer models for establishing postmining land use and landscapes was beyond the immediate intent of the Act and would require a technology not yet commonly used in mining reclamation.

Several comments on Section 824.11(a)(6) requested a variance to the requirement for the retention of a coal barrier on the lowest coal seam at a mountaintop removal operation. The Office considered the benefits of removing a coal barrier under certain specified conditions. After a thorough review of available options, the Office has provided additional language which may permit an exemption to the retention of a coal barrier if the following conditions are satisfied: (a) The proposed mined site was mined prior to May 3, 1978, and the toe of the lowest coal seam has already been removed; or (b) a coal barrier adjacent to a head-of-hollow fill attains the elevation of the coal barrier, and if the head-of-hollow fill provides the stability ensured by the retention of an undisturbed coal barrier.

In the first instance, the coal barrier is already removed so stability must be achieved by construction methods. In the second instance, the need for the barrier no longer exists and its removal will maximize coal recovery.

Several comments were received concerning the time period and the financial burden placed on coal operators at current operations to bring these operations into compliance with the performance standards. OSM recognizes that many existing structures do not comply with the provisions established under the permanent regulatory program. The reader is referred to 30 CFR 701.11(e), 780.12 and 786.21 to ascertain what criteria and procedures operators must follow with respect to modifying or reconstructing facilities constructed or used prior to the effective date of these regulations. In addition, the reader is reminded that under 30 CFR 716.3, existing operations must comply with the initial regulatory program, which has requirements similar to Part 824. This fact should minimize problems arising upon implementation of the permanent regulatory program.

SUBCHAPTER K -- PERMANENT PROGRAM PERFORMANCE STANDARDS, 30 CFR PART 825 -- SPECIAL PERMANENT PROGRAM PERFORMANCE STANDARDS - SPECIAL BITUMINOUS COAL MINES IN WYOMING

Part 825 applies to special bituminous coal mines that are located in the State of Wyoming. These regulations are intended to minimize, as far as practical, any adverse environmental or other effects of these special mines by practicable standards for onsite handling of spoil, elimination of depressions capable of collecting water, creation of impoundments, regrading, and allowing for retention of certain highwalls.

The literature used to draft these regulations includes: Land quality rules and regulations, Land Quality Division, Wyoming Department of Environmental Quality, 1975.

Two classes of special bituminous coal mines are covered separately by these regulations: (1) Those operating before January 1, 1972, and (2) those developed after August 3, 1977. Only those parts of the mine within the mine pit are regulated by Part 825. All other parts of the permit area must meet the standards set by the remainder of this Subchapter.

For mines operating before January 1, 1972, which meet the conditions of Section 527(a), of the Act, there is no practicable means of mining the coal or of reclaiming the lands as required by the Act. Therefore, highwalls are allowed to remain if found by the regulatory authority to be stable; benches are allowed; and the mine pit floor can remain and be graded, topsoiled, and seeded or be part of an approved impoundment. Any onsite spoil piles have to be graded and contoured to less than 17 degrees unless the regulatory authority determines that steeper slopes will accomplish the desired reclamation. Terraces will be approved by the regulatory authority if it is demonstrated that desired reclamation results will be achieved by their use.

The Office recognizes that the deep, open-pit type of coal mining in Wyoming has specific areas where adjustment to the general performance standards are warranted. These areas are backfilling and grading, since it is not possible to backfill completely and return to approximate or original contour or to blend the pit with the topography in these cases.

The extreme highwalls involved in deep-pit mining of coal cannot be adequately backfilled. However, they can be maintained with proper geological engineering techniques. Part of the stabilization may require benching the highwall to catch small rockfalls, control runoff, and maintain the face heights below the critical height for the material. Because highwall stability is a critical part of the reclamation and this is a very nontypical situation, the Office has made provision for special reviews and controls at these sites.

{15290}The pit floor would probably be incapable of supporting significant plant growth. Backfilling, topsoiling, and grading are required to reestablish vegetative cover and to allow access for equipment, people, and animals. Access must be provided to allow the revegetation equipment to operate and provide for future productive use of the land. The water movement in and around the pit must be controlled. Some impoundments can be expected to be of sufficient size to necessitate the use of riprap to control water damage to impoundment structures.

The slope of spoil piles should be maintained at a low angle (17 degrees maximum) to minimize runoff damage and provide safe side slopes for revegetation equipment. If terraces do not interfere with the reclamation, they can be used. High slopes can be used with adequate reclamation and an approved postmining land use.

For mines on lands adjacent to those operating before January 1, 1972, and developed after August 3, 1977, operations within the mine pit are required to conform to requirements of Wyoming law. Slope specifications in this Part are taken from the Wyoming Department of Environmental Quality regulations, Chapter II, Section 1(a), except that the regulatory authority is designated as the deciding authority rather than the administrator of the Wyoming Land Quality Division.

To blend the mined site with its surroundings, the slopes are to be cut to no more than the maximum average slope of the surrounding topography. If this practice would disturb a significant amount of land that would not otherwise be disturbed, the regulatory authority can allow steeper slopes. The regulatory authority can independently establish the average slopes. The operator's determination of average slope must be reviewed and approved or disapproved by the regulatory authority.

For those recently opened special mines, the regulatory authority will have the right to decide how backfilling, grading, and contouring will be done to meet the future use of the land, since these are special cases and need to be dealt with on an individual basis. The method chosen must be designed to prevent degradation of the hydrologic balance, reduce water pollution, prevent adverse effects from water buildup, control erosion, and control water flow to the original drainage system or else an approved substitute will have to be developed. Similar provisions are found in Section 816.49(c) and the reader is referred to the preamble discussion of that section for an explanation of issues related to stabilization of slopes in permanent impoundments.

Terraces or benches, check dams, and other erosion-control techniques may be required to control water damage to reclaimed slopes where long unbroken contouring cannot control the volume generated or handle seepage for stream flow. These structures may need special engineering. Therefore, the regulatory authority must examine and evaluate the detailed plans for all such construction.

The object of regulating reclamation is to produce usable land after mining. To allow indiscriminate filling of depressions with water would produce small intermittent ponds and bogs, and might create overflow situations that could erode slopes and possible endanger people. Depressions, therefore, will not be allowed without proper planning and design.

Where permanent water impoundments are authorized under these regulations, the land shall be sloped, graded, and contoured to blend topographically with its surroundings. Access shall be provided to allow for corrections to be made, revegetation, future access for new lands used, and maintenance of the water control structures. It may be very difficult to reclaim all of the pitwall in these mine pits. Therefore, one-half of the shoreline shall be allowed to remain as a stabilized pitwall. The stabilization technique is to be independently verified and approved by the regulatory authority. Since the pit may impound substantial amounts of water, it will probably have approved post-mining use which will blend with the surroundings, and part of the impoundment shoreline will have to be reclaimed for these purposes.

Since the State of Wyoming could change its regulations and programs on special bituminous coal mines, leaving some areas without coverage by regulations, the Secretary will provide the necessary additions to meet the Act.

Several comments were received on Part 825. One comment recommended that the word "mines'' be changed to "pits''. This comment was rejected because the wording used in the regulations is a quotation from the Act, and the Office feels that the narrower word might lead to misintrepretation of the scope of this Part. Readers are referred to a discussion of this issue in the preamble Section 785.12.

Several commenters argued that if the Wyoming regulations are made more stringent, there should be no need for the Federal regulations to be amended. No change has been made in response to these comments, since this could be contrary to Section 527(b) of the Act.

For a full understanding of the Office's permanent regulatory program as it relates to special mines in Wyoming, the reader is referred to the preamble discussion of Section 785.12 and the definition of special bituminous coal mines in Section 701.5.

SUBCHAPTER K -- PERMANENT PROGRAM PERFORMANCE STANDARDS, 30 CFR PART 826 -- SPECIAL PERMANENT PROGRAM PERFORMANCE STANDARDS OPERATIONS ON STEEP SLOPES

The regulations in Part 826 establish the minimum environmental protection standards an operator must meet to control the adverse environmental impact of steep slope mining, and this Part implements Sections 515(d) and 515(e) of the Act. Pages 41790 41791 (43 F.R. No. 181, September 18, 1978) of the preamble accompanying the proposed regulations are hereby incorporated by reference for an explanation of the basis and purposes of this Part. This Part contains special performance standards for mining on steep slopes and allows for a limited variance from the requirements for restoration to approximate original contour. All operations under this Part must meet the permit requirements of Sections 785.15 and 785.16 of these regulations. The reader is referred to those Sections and to the preamble discussion of them for an understanding of many of the issues addressed in this Part.

Sections 826.1, 826,2 and 826.11 set forth the scope, objectives and applicability of this Part. Editorial changes have been made in Section 826.1 of the proposed regulations to assist the reader through additional clarification and by using the terms defined in 30 CFR 700.5 and 701.5. Section 826.11(b) has been modified by adding a reference to mountaintop removal operations, which are not governed by this Part, and by deleting the reference to the variance granted under Section 515(e) of the Act which is, in fact, subject to this Part.

Literature used in writing this Part includes the works cited in the sections of this preamble relating to the disposal of excess spoil (Sections 816.71 816.74).

SECTION 826.12 Steep slopes: Performance standards.

1. Paragraphs (a) and (b) of this Section implement Section 515(d)(2) of the Act.

2. Several commenters objected that the proposed regulations in Section 826.12(a) would preclude the construction of access and haul roads into the permit area because spoil could not be placed on the downslope and road fills could not be constructed. Haul roads are obviously essential for access to the mine area. The Office agrees with these commenters and the language has been changed accordingly.

{15291}3. One commenter requested that Section 826.12(a) be modified to allow unmarketable tree materials to be placed on the downslope as a wind-row. It was suggested that such a wind-row would act to control siltation and would provide valuable wildlife habitat. No modification has been made in the regulations in response to this comment. Placement of debris on the downslope is explicitly prohibited by Section 515(d)(1) of the Act. In addition. The Office believes that decomposition of the woody material would lead to instability which could create long-term sediment problems on steep-slopes (Kimball, 1974, p. 35) and, therefore, the provisions of the Act and the regulation would not be satisfied.

4. Several commenters suggested that proposed Sections 826.12(b) and 826.13(a)(1) (which are now combined in Section 826.15(a) be modified to require the operator to establish the minimum static safety factor would be achieved only for those slopes in excess of the angle of repose or, alternatively, in excess of 1 v: 2 h.

The commenters pointed out that Section 816.72 would permit valley fills with slopes as steep as 26 , which is obviously greater than the 20 slopes that as a rule defines steep slopes. The Office has not adopted the commenters' suggestion. Section 515(d)(3) of the Act specifically requires that all backfilled material on steep slopes must maintain stability. This special statutory admonition requires special precautions in steep slopes area, where instability creates serious problems. The commenters' argument by analogy to Section 817.72 is not persuasive. While Section 816.72(g) does allow for slopes of 26 , Section 816.72(a) requires that the entire fill, including the steeper slope areas, must attain a static safety factor of 1.5, even higher than the 1.3 required on steep slopes.

5. Section 826.12(c) implements Section 515(d)(3) of the Act. Regulatory authority approval is required for all disturbance above the highwall. In addition to evaluating the request for approval in light of the requirements of this Part, the regulatory authority will be responsible for enforcing the language of the Act which provides in Section 515(d)(3) that "the land disturbed above the highwall shall be limited to that amount necessary to facilitate. . . compliance.'' I11The Office considered adding that language to Section 826.12(c) but thought it unnecessary, since the language of the Act is self-executing.

6. Several commenters requested that Section 826.12(e) be revised to allow the burial of woody material in the pit against the highwall. It was argued that such placement might pose no threat to the stability of the backfill. The Office considers the technical support for this contention inconclusive. Woody material eventually will deteriorate and decompose, creating voids, depressions, and tension cracks that channelize water in the fill and eventually cause mass instability and potential erosion and sil tation problems (Hopkins and others 1975, p. 9, and Weigle, 1966, p. 73). Several of these comments suggested that woody materials be allowed in the fill after the regulatory authority had determined that the minimum static safety factor could still be attained or that stability would not be jeopardized. Most States have allowed the practice in the past. Stability, erosion protection, and minimization of sil tation must be achieved. If organic material subject to decay can be buried without risk of voids being created, the regulatory authority may permit the burial of such material beneath the highwall. The Act, however, specifically requires that post-reclamation stability be assured on steep slopes (Section 515(d)(3)) and the permit application must assure the regulatory authority that the applicant will comply with the stability requirements in Section 826.12 (b). Pending further study of the issue, the placement of woody material in steep slope fills will be allowed only if approved by the regulatory authority.

7. Section 826.12(f) has been promulgated in furtherance of the requirement for long-term stability in Section 515(d)(2) of the Act.

Several commenters argued that no impoundments, either temporary or permanent, should be permitted on steep slopes. The following alternatives were considered:

(a) Permit impoundments which were constructed in compliance with the provisions of Subchapter K, and

(b) Prohibit construction of impoundments on steep slopes.

Specific design and construction requirements have been developed to ensure the stability of impoundments in Section 816.46. The regulations further provide criteria for sediment storage volume, detention time, dewatering characteristics, and sediment removal. To prohibit the use of these impounding structures would eliminate a major mechanism for controlling water runoff from the mine area and siltation of streams. In effect, mining would be prohibited in steep slope areas if sedimentation basins were not permitted. The commenters argued that slope instability problems dictate that these retaining structures pose a serious hazard to the safety to the general public and the environment. The Office recognizes that additional precaution must be exercised in the construction of impoundments. Appropriate regulations have been promulgated to achieve this need. This Office further determined that specific prohibition of impoundments in steep slope areas was not the intention of the Act. Consequently, no change has been made in the regulatory program.

SECTION 826.15 Steep slopes: Limited variances.

1. Section 826.15 implements Section 515(e) of the Act.

I11Several comments stated that Section 515(e) of the Act did not restrict the variance provisions to steep slope mining operations. The Office has not accepted the position urged by these comments. A review of the Congressional Record (H 7583, H 7584, (July 21, 1977) indicates that Section 515(e) of the Act is restricted to permitting variances in the provisions of Section 515(d) of the Act. Accordingly, no change has been made and the variance will be available only from the requirements of Section 515(d) of the Act. The reader is referred to the Preamble discussion of 30 CFR 785.16 for a more detailed analysis of this issue.

2. In reference to Paragraph (a), a commenter stated that the required backfilling to cover highwalls would in fact provide no variance to approximate original contour requirements in 95 percent of the terrain involved.

Section 515(e)(2) of the Act is interpreted by the Office to permit a variance from the requirements to restore to approximate original contour set forth in Section 515(d)(2), but not to exempt the operator from backfilling to the top of the highwall as stated in both Sections 515(d)(3) and 515(e)(1). It is, thus only to provide a variance from contour requirements. Regardless of the approved postmining land use and other requirements of Sections 515(e)(3) and (4), highwalls must be backfilled to a stable condition.

3. Section 826.15(b) implements and elaborates on the minimum criteria for measuring watershed control improvment as required by Section 515(e)(1) of the Act. The criteria set forth in 30 CFR 816.41 provided the basis for determining the improvement of the watershed hydrology during mining.

4. With respect to Section 826.15(c), several opposing comments were received regarding the distrubance of lands above the highwall to provide additional spoil to reclaim the affected area. The following three alternatives were considered by the Office when addressing the comments:

(a) Make no change to the proposed permanent regulations,

(b) Permit no disturbance above the highwall, and

(c) Modify the proposed regulation to reflect more effectively the intent of the variance.

{15292}Alternative (a) obtains its authority from Section 515(d)(3) of the Act, which requires that disturbance of land above the highwall shall be limited to the distance necessary to facilitate compliance with the environmental protection standards. The proposed regulations provided specific guidelines by which the regulatory authority could evaluate and monitor the proposed activities of an operator to ensure compliance of the permittee with the established regulations.

Alternative (b) would permit no disturbance above the highwall. It was argued that the area above the highwall should be disturbed only in extreme cases. Such disturbance would displace additional overburden material which would be subject to erosion and slope instability.

Under alternative (c), which the Office selected, more flexibility would be afforded the operator and the regulatory authority to respond to site-specific conditions. The regulatory authority must restrict the area disturbed above the highwall according to site conditions.

The denial to allow disturbance of the area above the highwall may preclude mining in some steep slope areas unless the highwall can be blended with additional spoil from above.{If disturbance above the highwall were limited, equipment maneuverability might be impossible for a certain distance, which could create hazardous conditions for an operator working adjacent to a highwall. It was further considered that the construction of highwall diversions during and following mining might have been hampered by the regulations as proposed, thus reducing the control of runoff and resulting in erosion.

The Office has reevaluated the proposed permanent regulations in view of the comments received and has rewritten Section 826.15(a)(3) to permit a determination of appropriate disturbance above the highwall on the basis of the proof presented in the permit application and reviewed by the regulatory authority.

5. Several paragraphs proposed for this Section have been deleted. A proposed requirement for certification of designs by certain registered professionals could be overly restrictive, since other professionals may be equally capable of performing the function. Also, there may not be enough registered professionals to fulfill all their other functions as well as this one, under the regulations without causing undue delay or unwarranted high costs. The permit review procedures, originally proposed in Section 826.13, have now been moved to 30 CFR 785.16, where the Office feels they more logically belong.

826.16

Steep slopes: Multiple seam.

1. Comments were received which suggested that excess spoil from an upper bench should be allowed to be deposited on a preexisting mine bench. The Office has accepted these recommendations, if the permittee complies with the regulations now found in Section 826.16. The Office believes that if the spoil is transported and placed to the appropriate grade and safety factor and according to Section 515(b)(22) of the Act, that remaining unreclained mine lands may be reclaimed and restored to more fully comply with the intent of the Act. By allowing for disposal of excess spoil in this manner, lands can be restored which might otherwise contribute to erosion and be unstable, and can be restored without use of public funds. It should be absolutely clear, however, that it is not the intent of this Office to permit end-dumping or dropping of overburden over the downslope from one bench to another unless the performance standards under 30 CFR 816.74 can be satisfied.

2. It was recommended by several commenters that multiple seam steep slope mining be permitted in previously mined areas without imposing the requirement to return the land to approximate original contour. The following alternatives were considered in response to these comments: (a) require total reclamation; (b) reduce the highwall angle, and grade the spoil to an approved contour; and (c) cover the highwall to the maximum extent possible with the existing spoil, and stabilize the remaining highwall.

In alternative (a), steep slope operations conducted in areas that predate the permanent regulations would be required to meet all the reclamation requirements of the Act including elimination of the highwall. The Act does not contemplate a special variance for previously mined areas. This alternative might severely limit recovery from those sites where surface mining operations prior to the Act have left pits containing significant reserves. In some of these areas the overburden has been disposed in such a manner that precludes restoration to the original contour. This can occur when the spoil has been spread over a large area rather than piled, or when the spoil has stabilized environmentally and is not a health or safety hazard. In these cases, the environment may be damaged more by attempts at restoration than by leaving the old workings in their stable conditions.

Alternative (b) would require the operator to reduce the angle of the highwall to a stable angle for the material involved. Some previously mined pits might not have enough available spoil to meet even these standards. The area would have to be graded and revegetated as required by Part 816. This alternative would not result in reclamation to the high degree required under Section 515(d) of the Act.

Alternative (c) would allow all previously mined pits to be mined, but would permit a significant amount of reclamation that would not meet the standards of the Act. Some highwalls might be permitted.

The Office has selected alternative (a). The Office recognizes that many abandoned mines may presently be unminable under this standard. However, economic factors may make more coal recovery and deeper cuts feasible in the future, and at that time sufficient spoil would be available from the increased cut to meet the requirements of this Act.

The Office believes that, in the long run, alternative (a) is the most environmentally protective. The Office has no information which would lead it to believe that the loss of unminable reserves as a result of this restriction will be critical to the Nation's coal supply or coal cost. For a further discussion of the requirement to return to original contour the reader should refer to the preamble discussions of 30 CFR 816.101 and 819.

SUBCHAPTER K -- PERMANENT PROGRAM PERFORMANCE STANDARDS, 30 CFR PART 827 -- SPECIAL PERMANENT PROGRAM PERFORMANCE STANDARDS - COAL PROCESSING PLANTS AND SUPPORT FACILITIES NOT WITHIN THE PERMIT AREA FOR A MINE SUMMARY: [See March 13, 1979 Introduction to the Permanent Regulatory Program Preamble.]

The reader is referred to the preamble discussion of Section 785.21 of the final regulations, which contains the requirements for permits for coal processing plants or support facilities that are not located within the permit area of a specified mine, for a discussion of other issues relevant to this Part. This Part should be read together with Section 785.21.

Coal processing plants are usually located at the mine mouth, but frequently one central preparation plant may serve several mines as a focal point for coal preparation and shipment to market. The coal may be transported to this central plant without removal of the rock and other impurities contained in the run-of-mine coal. Coal may also be shipped by barge, rail, or truck to a site far removed from the minesite and processed there before use. After shipment to the point of use, additional processing may take place. Associated with coal processing plants are coal wastes, waste piles and disposal sites, and other features which can seriously damage the environment and property. In order to ensure proper protection of the environment and public property in compliance with Section 102 of the Act, the same general requirements for permits, bonding, reclamation, performance standards, and enforcement will apply to coal processing plants and support facilities not located within the permit area for a specific mine as for those located at mines.

{15293}Section 827.12 contains specific performance standards which have been discussed in previous Sections of the preamble for similar facilities within the permit area, and which OSM feels are also applicable to facilities not located within the permit area. For more specific information, the reader is referred to the respective sections of the Preamble which discuss those performance standards. References in Section 827.12(b) to other regulations (Paragraph (b), roads; (e), impoundments; (1) underground mining; and (m) reclamation) have been modified since the proposed version to reflect modifications in the numbering scheme of Parts 816 and 817.

1. A number of commenters questioned OSM's authority to regulate coal processing plants and facilities not located within a permit area. Section 701(28)(B) of the Act defines surface coal mining operations to include areas upon which such activities (cleaning, concentrating, or other physical processing or preparation, loading of coal . . .) occur, and surface coal mining operations are controlled by the Act. The Office believes feels that "at or near the mine site'' in Section 701(28)(A) of the Act applies only to "loading of coal for interstate commerce'' and finds it has the authority to control coal processing plants and support facilities not located at or near the minesite or not within the permit area for a mine, under Sections 701(28)(B) and 701(17) of the Act. The reader is also referred to 30 CFR 785.21 for further discussion of this issue.

2. In considering a number of comments concerning processing plants built and operating at the time of promulgation of these regulaions, the Office considered the alternatives of (a) not requiring compliance with Part 827, and (b) blanket requirements that all existing structures be forced into compliance. It is recognized that while compliance with this Section is required under the Act, it could be very burdensome and costly for existing structures and facilities to comply. The Office has resolved this matter in Sections 701.11(e), 780.12 and 786.21, which modify the application to existing structures of design standards, but not performance standards. The reader is referred to the preamble discussion of those sections for a discussion of existing structures.

3. One comment requested deletion of Section 827.12(1) on the basis that Section 515(b)(12) of the Act and the regulations in Section 816.79 refer to "surface coal mining operations.'' the Office has rejected this suggestion because Section 515(b)(12) of the Act also states "in order to prevent breakthroughs and to protect the health and safety of the miners.'' The Office believes that this protection applies equally well to processing "operations'' as to "mines.'' It is further noted that "surface coal mining'' is not defined in the Act to exclude processing facilities.

4. Several commenters suggested that different standards should apply to tipples with washing facilities than to those without them, since tipples without washing facilities result in less environmental damage. The Office believes that the performance standards in this Part are appropriate for all facilities, and the rule has not been changed in response to the comment. If one facility is causing less environmental damage than another, it may require less corrective action to comply with these rules. However, the minimum standard of performance and maximum allowable environmental degradation must be the same for both types of facilities, as provided in this Part.

SUBCHAPTER K -- PERMANENT PROGRAM PERFORMANCE STANDARDS, 30 CFR PART 828 -- SPECIAL PERMANENT PROGRAM PERFORMANCE STANDARDS - IN SITU PROCESSING

This Part provides environmental performance standards for in situ processing operations which use coal in place or recover coal by means of processing fluids injected into the coal-bearing strata. The preamble accompanying the proposed permanent regulatory program found in 43 F.R. 41791 41792 (September 18, 1978) is hereby incorporated by reference and sets forth the basis, purposes, and alternatives considered in drafting this Part.

One commenter recommended that the proposed language in Section 828.11(e) be rewritten to provide the regulatory authority with adequate latitude for restoring the affected ground water resource to a condition suitable for supporting the postmining land use. The alternatives considered based on this comment were: (1) requiring restoration of ground water quality to approximate pre-mining levels; and (2) allowing alternative ground water quality limitations dependent upon future land use.

Alternative 1 reflects the intent of Section 515(b)(10) of the Act in that the impact of mine related activities on the hydrologic balance and to the ground water shall be minimized. As such, the regulations must provide adequate provisions to ensure that future land use not be prohibited because of disruptions to the pre-mining hydrologic conditions. Appropriate flexibility has been incorporated into the regulations by providing that the ground water system shall be returned to "approximate premining levels.'' On the other hand, it was argued that the proposed language should be broadened to permit alternative ground water conditions other than the conditions existing prior to mining. The restoration of ground water conditions, it was argued, should primarily refect the needs based on proposed land use as determined by the regulatory authority. Alternative 2 was rejected because the Office determined that sufficient latitude was provided the regulatory authority to establish what "approximate premining conditions'' must be achieved following the processing activity. The Office believes that the ground-water resources on lands adjacent to the permit area must also be protected. Many of these adjacent lands will continue to support pre-processing land uses and, as such, continued use must be assured.

One commenter stated that air quality monitoring for in situ processing activities should be eliminated. The Office considered the following alternatives as a result of this comment: (1) delete all requirements for monitoring; (2) require monitoring as required by applicable Federal and State regulations; and (3) require periodic monitoring for phenols, nitrogen compounds, carbon compounds, windspeed, direction temperature and air quality characteristics determined appropriate by the regulatory authority after consultation with air quality agencies.

Requirements for the monitoring of air quality at in situ processing operations were not specifically addressed by the Act. The commenter maintained that adequate regulations exist under existing Federal and State standards and there is little necessity of applying another level of regulations which would duplicate existing requirements.

The second alternative would establish proposed regulations using language similar to that of Section 508(a)(9) of the Act to ensure that applicable Federal and State laws and standards would be achieved. The proposed regulations took into account that in situ processing of coal would generate and release emissions of phenols, nitrogen compounds and oxides of carbon which would adversely impact the air quality of the region (Edgar, pp. 47 49). Vegetation found on the lands beneath and adjacent to the processing operations may be stunted or destroyed by adverse compounds emitted. Additional requirements were specified to ensure that the regulatory authority would have adequate latitude to require monitoring of air quality at in situ processing operations when Federal or State regulations may not address these air quality standards. These proposed regulations would have assured evaluation of the impact of in situ processing on the ambient air quality during and following the operations.

{15294}Alternative 1 was rejected because the Office has the responsibility under the Act to ensure that applicable air quality laws and standards are met. (See preamble discussion of Sections 816.95 and 780.15).

The Office has selected alternative 2, which requires the regulatory authority to take into account existing air quality standards of other Federal or State agencies. Although the general types of pollutants are known, identification of specific air quality characteristics which must be monitored (Alternative 3) has been deleted at this time until additional data becomes available from in situ activities. As one commenter pointed out, there are more than 1,000,000 know carbon compounds and the Office believes the rules as proposed may have been too sophisticated for effective implementation by regulatory authorities. The alternative selected provides regulatory authorities with maximum flexibility to tailor the monitoring program to site-specific needs.

Several commenters stated that the proposed regulations were too complex and sufficient latitude was not provided the regulatory authority to handle site-specific situations. No change has been made in this Part in response to these comments because the Office was presented no rationale in support of specific changes and because the Office believes the general requirements of Part 828 would be appropriate to any in situ operation.

SUBCHAPTER L -- INSPECTION AND ENFORCEMENT

Subchapter L is divided into Part 840 (Inspection and Enforcement by the State Regulatory Authority), Part 842 (Federal Inspections) Part 843 (Federal Enforcement) and Part 845 (Civil Penalties). The structure and purposes of Subchapter L and its four Parts are set forth in the Preamble to the proposed regulations and are not repeated here. The reader may refer to the preamble to the proposed regulations at 43 FR 41792 41797 (September 18, 1978) for this information.

General Comments

One commenter suggested that inspectors should be required to be licensed engineers. The Office decided against this. Inspectors are called upon to enforce regulations which are based on the teachings of many scientific and engineering disciplines. It would be impossible to find inspectors who were licensed in all of these disciplines. In any event, it is not necessary to require such experience. If, while enforcing the regulations, an inspector feels engineering or other technical advice is needed, he can obtain guidance from technical experts on OSM's staff or the State regulatory staff.

The same commenter suggested that inspectors who are not licensed engineers might be deemed to violate State licensing laws if they made interpretations of the Act or the regulations using judgment involving the application of engineering principles. The Office doubts this is an accurate interpretation of the State licensing laws, but if it were, such a State law would be unconstitutional if applied to Federal inspectors carrying out Federal law.

Throughout Subchapter L, references to cooperative agreements or programs were deleted because they were redundant. A cooperative program is merely a State program applied to Federal lands pursuant to a cooperative agreement, and thus reference to a State program is sufficient. Also, references to coal exploration were added as appropriate throughout Subchapter L.

Many provisions in Subchapter L were modified to clarify, shorten, or improve the organization of the regulations.

SUBCHAPTER L -- INSPECTION AND ENFORCEMENT, 30 CFR PART 840 -- STATE REGULATORY AUTHORITY INSPECTION AND ENFORCEMENT

Statutory Authority: 102, 201, 501(b), 503, 512, 517, 518, 521, and 523 of Pub. L. 95 87, 91 Stat. 448, 449, 468, 470, 483, 498, 499, 504, 510 (30 USC 1202, 1211, 1251, 1253, 1263, 1267, 1268, 1271, 1273).

SECTION 840.11 Inspections by State regulatory authority.

Subsection (a) was modified to provide that the State regulatory authority shall conduct "an average of'' at least one partial inspection per month. This conforms with the language of 517(c) of the Act. A similar change was made in Subsection (b).

A new Subsection (c) was added to provide for periodic inspections of coal exploration operations. Such inspections are necessary if a State is to enforce the coal exploration provisions of its State program. The previous subsection (c) was renumbered as (d) and modified to include a reference to the new subsection (c).

Comments were received requesting the Office to delete the reference in 840.11(c)(1) and 842.11(d)(1) to conducting inspections to monitor compliance at all operations, including those which operate on weekends and holidays and at unusual hours.

Section 517(c) of the Act requires the regulatory authority to conduct inspections "on an irregular basis.'' The phrase "irregular'' is not defined in the Act and could be taken to have a number of meanings. The commenters implicity interpret the phrase as meaning only that inspections should not occur on the same day of the week or the month or some other predictable date.

To accept this narrow definition would be actually to encourage some of the worst types of violations. Some wildcatters (persons operating without a permit) operate only on nights or holidays. If the comments were accepted and no inspections were carried out at night or on holidays, these operators, often among the most flagrant violators of the Act, could operate with impunity. There are also some operators who will obey the Act and regulations only because they expect to be inspected. If no night time or holiday inspections were held, such an operator might, for instance, discharge acid drainage during nights and holidays, knowing that no inspections would be conducted then. Also, if a citizen reported that an operator was committing violations during holidays or evenings, the regulatory authority would be unable to respond effectively to the complaint unless its inspectors make nighttime or holiday inspections.

Some commenters felt that inspections during unusual hours and holidays would be used to harrass operators. The Office and the States do not conduct inspections to harrass operators. The Office and the States will conduct their inspections in a reasonable and fair manner that will not interfere with operators who are in compliance.

SECTION 840.12 Right of entry.

Some commenters proposed that a State should not be required to have statutory authority to enter and inspect operations, arguing that this would needlessly force States to request their legislatures for new laws. The Office rejected this proposal because nonstatutory authority is not certain enough for the Secretary to judge accurately the adequacy of a State program.

Other commenters urged that the language of 840.12(a) should clarify to whom the "appropriate credentials'' should be presented (such as the person responsible for the operation of and safety at the mine or the individual who, based upon reasonable inquiry by the authorized representative, appears to be in charge of the operation). They believed that the language of Section 517(b)(3) of the Act implied that an attempt should be made to notify the operator or his authorized representative before entry into the mine area.

{15295}To interpret Section 517(b) (3) of the Act as suggested would seriously undermine enforcement of the law. If an inspector were required to present his credentials to a particular individual before commencing an inspection, an operator could prevent an inspection by removing this employee from the site while serious environmental or other harm might be occurring. Further, with regard to certain types of violations which are difficult to prove unless they are observed when occurring, an operator might make the particular individual temporarily unavailable and delay an inspector long enough to cover up or cease illegal practices, thus avoiding detection. OSM interprets Section 517(b)(3) of the Act as meaning that the operator who encounters the inspector on the permit area is entitled to expect the inspector to present appropriate credentials if requested to do so. It is current practice in most cases to seek the foreman upon first arriving on the mine, present credentials and invite the foreman to accompany the inspector.

Comments were received that inspections should not be conducted without search warrants. Although Marshall v. T3Barlow, _ U.S. _, 56 L. Ed. 305, 98 S. Ct.1816 (May 23, 1978), held that search warrants are required for certain types of inspections, it has been ruled that search warrants are not required for the field inspections contemplated under the Act (In re: Surface Mining Regulation Litigation, T1452 F. Supp. 327, 11 E.R.C. 2708 (D. D.C., August 24, 1978). However, it appears that search warrants are required to enter a building to inspect records, if the permittee or operator does not consent to entry. Section 840.12(b) has been amended accordingly.

Comments were received that the regulatory authority should not be required to have authority to conduct inspections without a search warrant. This comment was not accepted except with respect to entrance into buildings without consent of the permittee or operator. A requirement that an inspector obtain a search warrant before making an inspection has considerable potential for impairing enforcement of the Act and is not required by law. It restricts an inspector's ability to respond quickly to emergency situations; it requires inspectors to spend time on the paperwork involved in getting the warrant; and, depending on the criteria for obtaining a search warrant, it may prevent the regulatory authority from accomplishing certain inspections which are required under the Act.

Certain comments regarding Section 842.11, which are discussed below, are relevant to similar provisions contained in Section 840.12.

SECTION 840.13 Enforcement authority.

Numerous comments were received requesting clarification as to what enforcement authority would be required in a State program. This issue was raised also with respect to Part 732, which is discussed above. The Office considered setting forth minimum criteria for State program enforcement authority in the regulations. However, it was determined that this approach ran the risk of being either unduly restrictive or not restrictive enough, if the Office failed to take into account some alternative or problem. Accordingly, it was deemed preferable to leave the statutory standard as the requirement, without further definition in the regulations. The Section was rewritten to conform with the statutory language and to include all relevant references to the regulations and the Act.

Subject to the foregoing, the Office believes that each State program must meet the following criteria with respect to sanctions and related procedural requirements:

(1) It must require issuance of cessation orders by the inspector immediately upon observing a violation of the State program or a condition or a practice which causes or can reasonably be expected to cause an imminent danger to the health or safety of the public or a significant, imminent environmental harm to land, air or water;

(2) It must require issuance of a cessation order immediately upon failure to abate under a notice of violation within the abatement period specified;

(3) It must require issuance of a notice of violation by the inspector immediately upon observing a violation of the State program;

(4) The notices of violation must provide for remedial action and a reasonable time to abate the violation, but not longer than 90 days from issuance of the notice of violation;

(5) The cessation orders must impose affirmative obligations to abate the violation, condition or practice as expeditiously as possible in cases where cessation of the operation does not in itself abate the violation, condition, or practice (except that a cessation order issued for failure to abate may not extend the time for abatement);

(6) It must provide for revocation and suspension of permits to mine, where it is found that a pattern of violations of any requirement of the State program exists or has existed and that the violations were willful or were caused by the permittee's unwarranted failure to comply, and it must provide for revocation or suspension in all circumstances comparable to those mentioned in Section 521(a)(4) of the Act and 30 CFR 843.13;

(7) It must provide a formal review of notices of violation and cessation orders comparable to that provided in 30 CFR 843.16; and;

(8) It must provide for injunctive relief with respect to the types of actions and inactions mentioned in 521(c) of the Act and 30 CFR 843.19.

Similarly, the Office believes that each State program must meet the following minimum criteria with respect to penalties and related procedural requirements:

(1) It must provide for civil penalties of up to at least $5,000 per day for violation of the State program or of any permit issued thereunder, with mandatory penalties for cessation orders, and must result in penalties at least as high as those provided for in 30 CFR Part 845;

(2) It must provide for a mandatory daily civil penalty of at least $750 for failure to correct a violation within the abatement period permitted for its correction;

(3) It must provide that in determining the amount of the civil penalty, consideration will be given to the four criteria mentioned in Section 518(a) of the Act;

(4) It must provide for assessment and payment of penalties within the time periods provided for in Section 518(a) (c) of the Act and 30 CFR Part 845;

(5) It must provide that failure to make timely final payment or payment into escrow will result in a waiver of all legal rights to contest the violation or the amount of the penalty; (6) It must provide for a public hearing on the record regarding the violation and the penalty, with no opportunity for a trial de novo after the hearing (whether or not the hearing is waived by the operator). Payment into escrow of the proposed assessment must be required as a condition to obtaining the public hearing on the penalty;

(7) It must provide for criminal penalties at least as high and imprisonment for at least as long as provided in:

(a) Section 518(e) of the Act for violations of the type mentioned in Section 518(e) which occur under a State program;

(b) Section 518(f) of the Act for offenses on the part of corporate directors, officers, and agents, of the types mentioned in Section 518(f), which occur under the State program; and

(c) Section 518(g) of the Act for offenses of the types mentioned in Section 518(g) which occur under the State program.

{15296}Minimum requirements for citizen participation in the enforcement of a State program are discussed with respect to Section 840.15 below.

A number of commenters asked whether a State must have a point system like that in Part 845. Some commenters reacted negatively to Part 845, stating that it produces fines that are higher per violation than the fines the Mine Safety and Health Administration ("MSHA''), formerly the Mining Enforcement and Safety Administration ("MESA''), imposes. It is difficult to respond to this criticism because the regulations administered by MSHA do not prohibit the same types of conduct as those administered by OSM. Also, it is not clear that MSHA's fines are lower when considered in the aggregate_MSHA may find more violations per inspection. Furthermore, many persons believe that MSHA's fines are too low to be effective. Also, there is reason to believe that OSM fines may be exceeded by those imposed by some States. For instance, OSM's average fine for mining without a permit is $3,500, its highest fine for that violation to date was $5,000 and its lowest was $700. One State, however, recently imposed a fine of $10,000 for mining without a permit.

The point system used by the Office provides a number of benefits. If properly administered, it assures rational consideration of the four statutory criteria and equal treatment of all violations. Futhermore, use of a point system actually simplifies, as well as rationalizes, the imposition of penalties, an important consideration given the volume of violations to be expected.

Futhermore, use of a point system assures nationally uniform enforcement, which Congress clearly contemplated. The Act (Section 503(a)(7)) requires State programs to have rules and regulations "consistent with'' the Secretary's regulations. In addition, Section 518(i) of the Act requires that the State provisions must have civil and criminal penalties "no less stringent'' than those set forth in Section 518 and the "same or similar'' procedural requirements relating thereto. A similar clause appears in Section 521(d) regarding enforcement. While there are obvious reasons for providing for differences in performance standards based on topographic, climatic, and other regional variations, there is no justification for regional or State-by-State variations in penalties, and the "same or similar'' language is meant to highlight the need for nationwide uniformity of enforcement.

While OSM believes that penalties should not vary from State to State and that the point system assures this result, there may be other ways to accomplish the same end. For instance, a system which uses a "range'' of penalties for different violations might be acceptable, depending on the range.

OSM has identified and included in the minimum criteria for penalty assessments mentioned above some elements that are critical, the most important of which are:

(1) Assessments must be made within the time frames contained in the Act and Part 845. This is essential for nationally uniform enforcement. Furthermore, it establishes clear guidelines by which the administration of State programs can be evaluated. Whether a judicial system for assessing penalties, as opposed to an administrative system, can accomplish this is discussed below.

(2) Payment of the penalty into escrow must be required as a condition for obtaining a formal hearing.

(3) There must be opportunity for a public hearing with no subsequent trial de novo.

One of the most serious problems under the Federal Coal Mine Health and Safety Act of 1969 was that MESA had to establish its right to the penalty in a trial de novo even though the operator had already been given an opportunity for a fair hearing. With docket delays of several years, this gave a tremendous incentive to the operator to delay, in the hopes that by the time the final de novo trial occurred witnesses would be gone or evidence would be lost. While the escrow provision in the Act eliminates one incentive to delay, the other incentive to delay_the hope that the evidence will be lost or become stale_will still exist unless the right to trial de novo is eliminated. In drafting the Act, Congress clearly intended to end the problem caused by the right to a trial de novo in the 1969 Mine Safety Act, for (while following that Act in some respects) it eliminated the right to a trial de novo.

The question was also raised whether, in State programs, penalties must be administratively assessed. Section 518 of the Act provides for administrative assessment of penalties by the Secretary, with respect to Federally-issued notices of violation and cessation orders. The penalty is assessed by the Secretary, after an opportunity for a formal administrative hearing. The Secretary must inform the operator within 30 days after issuance of the notice of violation or cessation order of the proposed amount of the penalty. The operator may contest the penalty in a formal administrative hearing, but to do so he must pay the penalty into escrow. Under Section 518(c) of the Act, the operator has 30 days after receipt of the proposed penalty to pay it in full or pay it into escrow.) This time limit is too short, because the abatement period may be as long as 90 days, in which case the statutory criterion of good faith in rapidly complying cannot be considered before the penalty is assessed or required to be placed in escrow. However, the Office has eliminated this problem by giving the operator an opportunity for an informal hearing (conference). At the conference, the proposed penalty assessment may be adjusted. The formal administrative hearing is deferred until conclusion of the conference, which prevents the premature finalization of the assessment mentioned above.)

In comparing administrative and judicial assessment of penalties, the following points should be considered:

1. Administrative agencies which deal with surface mining matters are probably better able to assess appropriate penalties than courts, because of their greater experience with and understanding of the Act and its application to surface and underground mining operations.

2. Court dockets may be so crowded that penalty assessments will be delayed greatly beyond the time periods specified in Section 518 of the Act. This may be exploited by operators, since it defers payment of penalties. It will make enforcement more difficult in States with crowded dockets and will give noncomplying operators in those States an economic advantage over their counterparts in other States. Also, long delays in assessing penalties mean that witnesses may not be available or evidence may be lost by the time the case is finally heard.

3. OSM regulations assure citizen access to the penalty process, while this may not be true of some judicial systems.

4. An administrative system is particularly appropriate for assessment of civil penalties under the Act. In such a system, unlike the judicial system, a tentative penalty can be proposed without a full, trial-type prior hearing, and trial-type hearings need be held only for those cases where the operator disagrees with the penalty. Thus administrative assessment is quicker and more efficient. This is particularly important where there are a large number of penalties, requiring many hearings.

5. An administrative system of assessing civil penalties is more apt to produce uniform penalties for the same violations and to do so in accordance with the requirements of the Act.

While the regulations do not specifically preclude a judicial civil penalty system, OSM's present interpretation, because of the above reasons and its understanding of Congressional intent, is that such a judicial system would not satisfy the requirements of the Act and regulations for an approvable program.

{15297}In a related comment, one State asked whether it could provide for, but not use, a penalty point system. This would not be acceptable. A State must administer and enforce all parts of its program.

Certain issues discussed with respect to Part 843, particularly Section 843.11 and Section 843.12, are pertinent to Part 840.

SECTION 840.14 Availability of records.

Subsection (b) was amended to reflect the fact that certain other provisions of the regulations provide for confidential treatment of some kinds of information.

In reviewing the comments relating to subsection (b), the Office realized that the proposed draft did not conform with the requirements of Section 517(f) of the Act. Section 517(f) requires documents to be "immediately available'' at locations which are "conveniently available.'' The drafters of the proposed regulations had mistakenly interpreted Section 517(f) as requiring that documents (rather than locations ) be "conveniently available,'' and had defined this term to mean 5 days, in the case of a county or multicounty location, or 24 hours in the case of a State or central location.

The revised Subsection (b), which requires documents to be "immediately available,'' does not attempt to define further the meaning of that term. The 5 day/24 hour concept used in the proposed draft was deemed too stringent in some cases and not stringent enough in others. As pointed out by some commenters, if an inspector is in the field, it may take several days for his report to reach the place where records are kept. This must be considered in determining whether the State has made the documents "immediately available.'' On the other hand, if documents are on file only in a central location and there is a telecopier in the field office, copies could and should be provided in fewer than 24 hours. On balance it seems preferable not to try to define "immediately available,'' but to interpret it as cases come up.

Subsection (c) was deleted because its subject matter is dealt with in 30 CFR 787.15, and subsection (d) was renumbered as subsection (c). It was questioned whether OSM can enter into agreements with States regarding procedures for handling investigative and enforcement reports, in order to protect preparation for hearings and enforcement proceedings, as provided in this Subparagraph. It was argued that this violated the mandate of Section 517(f) of the Act for public availability of documents and precludes public access to OSM-held documents at the very time when such access is essential for a fair resolution of enforcement proceedings.

The comment was rejected. Section 840.14 implements 517(f) of the Act. Withholding of special investigative or prosecutorial reports prepared for use in particular enforcement proceedings is justified by both the attorney "work product'' rule of evidence and the philosophy underlying enactment of 5 USC 552(b)(7), which exempts from the mandatory disclosure requirements of the Freedom of Information Act "investigative records compiled for law enforcement purposes, but only to the extent that the production of such records would * * * interfere with enforcement proceedings.''

SECTION 840.15 Public participation.

Comments were received concerning the extent to which State programs must provide for citizen participation (these comments were summarized above with respect to Part 732).

Section 521 (a)(1) of the Act provides as follows:

"When the Federal inspection results from information provided to the Secretary by any person, the Secretary shall notify such person when the Federal inspection is proposed to be carried out and such person shall be allowed to accompany the inspector during the inspection.''

This issue is closely tied in with the general question of the extent to which State programs must parallel the Federal regulations (see discussion of 30 CFR Part 732). The legislative history establishes convincingly that, at least with respect to citizen participation, a State program must parallel the Federal scheme.

With respect to the issue of citizen participation in the administration and enforcement of the Act, both the House and Senate Reports stated:

"While it is confident that the delegation of primary regulatory authority to the States will result in adequate State enforcement, the Committee is also of the belief that a limited Federal oversight role as well as increased opportunity for citizens to participate in the enforcement program are necessary to assure that the old patterns of minimal enforcement are not repeated.'' S. Rep. 95 128, 95th Cong., 1st Sess. at 90 (1977); see H. Rep. 95 128, 95th Cong., 1st Sess. at 129 (1977).

This indicates that citizens' rights granted under Federal law and regulations may not be abridged by State programs.

Also, the Senate Report indicates that Congress intended that citizen involvement be provided in all areas of the regulatory process:

"The success or failure of a national coal mining regulation program will depend, to a significant extent, on the role played by citizens in the regulatory process. The State regulatory authority or Department of the Interior can employ only so many inspectors, only a limited number of inspections can be made on a regular basis and only a limited amount of information can be required in a permit or bond release application or elicited at a hearing. Moreover, a number of decisions to be made by the regulatory authority in the designation and variance processes under the Act are contingent on the outcome of land use issues which require an analysis of various local and regional considerations. While citizen participation is not and cannot be a substitute for governmental authority, citizen involvement in all phases of the regulatory scheme will help insure that the decisions and actions of the regulatory authority are grounded upon complete and full information. In addition, providing citizen access to administrative appellate procedures and the courts is a practical and legitimate method of assuring the regulatory authority's compliance with the requirement of the Act.'' S. Rep. 95 128, supra., at 59 (emphasis added).

In light of the requirement in Section 503(a)(7) that State programs contain rules and regulations consistent with Federal regulations, and considering the legislative history noted above, no State program can be approved which does not provide at least the same level of citizen participation in all phases of the State program as do the Federal statute and regulations. The Office added Section 840.15 to make this clear.

The Office believes that a state program must meet the following minimum criteria with respect to citizen participation:

(1) It must provide citizens with the right to request State inspection and to participate in the resulting inspections, at least to the degree provided in Section 521(a)(1) and 30 CFR 842.

(2) It must provide a citizen's right to informal review as established by 517(h) (1) and (2) of the Act and 30 CFR 842.14 and 841.15.

(3) It must authorize award of costs and expenses in administrative and judicial proceedings provided under Section 520 (d) and (f) and 525(e) of the Act and 43 CFR 4.

(4) It must authorize at least the same citizen access to the State administrative process for review of notices, orders, orders to show cause, and civil penalties as exists under Section 518 and 525 of the Act, 30 CFR 843.15 and 843.16, and 43 CFR 4.

(5) It must allow citizens as much access to the State courts as 520 and 526 of the Act allow to Federal courts, in areas such as citizen suits, damage actions, review of enforcement proceedings, permit proceedings and bond proceedings.

SUBCHAPTER L -- INSPECTION AND ENFORCEMENT, 30 CFR PART 842 -- FEDERAL INSPECTIONS

Statutory authority: 102, 201, 501(b), 504, 506, 517, 518, 521, and 523 of Pub. L. 95 87, 91 Stat. 448, 449, 468, 471, 474, 499, 504, 510 (30 USC 1202, 1211, 1251, 1254, 1257, 1267, 1268, 1271, 1273).

SECTION 842.11 Federal inspections.

One commenter stated that OSM should adopt criteria to limit the scope and nature of Federal inspections and procedures to protect the State from unjustified intrusions by Federal inspectors. The commenter suggested a procedure requiring the Federal inspector to obtain a "warrant'' from the Regional Director before making an inspection and a procedure whereby a State could file a grievance to curtail disruptive intrusions into the State program.

These suggestions were rejected as unnecessary. Part 842 already sets forth the criteria for Federal inspections provided for under the Act. If a State feels that an inspection is unjustified, it should inform the Office. No special grievance procedure is necessary.

The Office also considered modifying Part 842 to indicate that the Office will develop and promulgate procedures for inspections to evaluate the administration and enforcement of approved State programs. While the Office decided that a plan for the evaluation of State administration and enforcement of State programs must be developed, there is no need for a regulation to that effect.

A number of commenters suggested that the Office should commit itself to performing a specified number of evaluative inspections per year. The Office decided against this because it is really a program and budget decision, not a regulatory decision. Moreover, the Office has not yet developed a plan for making evaluative inspections and, at this point, has no basis for determining what the proper level of evaluative inspections would be. More frequent inspections may be necessary in areas where there appear to be difficulties. The number and location of inspections to be made would be determined in developing and carrying out the plan for making evaluative inspections.

It was suggested that Federal inspectors should be authorized to issue "compliance opinions'' to permittees. These opinions would give the permittee an interpretation of the regulations as applied to the permittee's operations, but would not result in a penalty. It was pointed out that there may be aspects of the regulations that leave some question as to precisely what the operator is to do. (For instance, at what intervals do perimeter markers have to be installed?) It was suggested that such a procedure would give the permittee a clear, written guidance from the inspector which would enable the permittee to know what he needed to do to comply, and would offer protection against inconsistent interpretations from different inspectors.

The suggestion was rejected, however, because it creates another layer of rulemaking and could be abused by operators who will defer compliance until the inspector shows up and then ask for a "compliance opinion.'' The Office will use other means to provide interpretations to operators, such as manuals, and plans to create a formal procedure by which the Office will make and communicate official interpretations of the Act and regulations.

It was suggested that when a Federal inspection is planned, the State regulatory authority should be given the opportunity to accompany the Federal inspectors on the inspection. It would be inadvisable to put such a requirement in the regulations. There could be instances where proper evaluation could not be performed without unannounced Federal inspections. Furthermore, to write such a requirement into the regulations might give a permittee/operator an unjustified basis for challenging an otherwise lawful Federal inspection. Though joint inspections may be useful in certain circumstances, they should not be required by the regulations.

It was commented that there can be no Federal enforcement in a State program unless the Office has taken over enforcement pursuant to Section 504(b) or Section 521(b) of the Act. This comment is based on an argument that, under Section 503(a), a State with an approved State program has exclusive jurisdiction to enforce. It was also suggested that Section 521 of the Act requires 10 days' prior notice to the State before initiation of any Federal enforcement action.

These comments are without merit, for they ignore critical language in Section 503(a):

"Each State * * * which wishes to assume exclusive jurisdiction over the regulation of surface coal mining and reclamation operations, except as provided in Sections 521 and 523 * * * of this Act * * *'' (Emphasis added.)

Thus, States with approved State programs have "exclusive'' jurisdiction except as provided in Sections 521 and 523. See discussion of the use of "primary'' in lieu of "exclusive'' with respect to State jurisdiction in preamble to 30 CFR 701.4.

The regulations do not exceed the statutory exception. Section 843.11(a) provides for issuance of cessation orders in cases of imminent hazard on the basis of "any Federal inspection.'' This authority is clearly conferred by Section 521(a)(2). Section 843.11(b) provides for issuance of a cessation order for failure to abate a notice of violation issued under 843.12(a)(1). Section 843.12(a)(1) provides for the issuance of notices of violation based on a Federal inspection carried out during the enforcement of a Federal program or Federal lands program or under Section 504(b) and 521(b). These two Sections (843.11(b) and 843.12(a)(1)) are based on Section 521(a))3) of the Act. Section 843.12(c) provides for issuance of notices of violation in certain cases of State inaction. As the discussion below of Section 843.12(c) indicates, that provision is also based on 521 of the Act.

Section 842.11 (a) and (b) state clearly that the following types of Federal inspections may occur: inspections to evaluate State programs; to develop and enforce Federal programs and Federal lands programs; to enforce a State program not being enforced by a State, under Section 504(b) or 521(b) of the Act; to determine whether a notice or order issued during an authorized inspection has been compiled with; and certain inspections based on citizen complaints. These inspections are authorized under Section 517(a) and 521 of the Act. In the permanent program, prior notification to States is required only under Section 521(a), which provides for such notice only in certain cases. This is reflected in Section 842.11(b)(1)(ii)(B).

Subsection (b) was renumbered as (b)(1), Paragraph (1) was renumbered as (i), and Paragraphs (i) (iii) were renumbered as (A) (C).

Section 842.11(b)(1)(ii) provides that the Office must inspect when it has notified a State of a possible violation but the State has failed to inform the Office within 10 days that appropriate action has been taken. Under this regulation, if the person supplying the information provides adequate proof that an imminent danger to the public or a significant, imminent environmental harm exists and that the State has failed to act, the 10-day notification period is waived. This is based upon Section 521(a)(1) of the Act.

One commenter pointed out an oversight in the proposed regulations, in that citizen complaints for imminent hazards as well as for violations should trigger an inspection action as provided in Section 521(a)(1) of the Act. While Section 521(a)(1) of the Act does not use the words "imminent danger'' or the like until the third sentence, it seems clear that when read as a whole Section 521(a)(1) contemplates reporting imminent hazards and harms as well as violations. This is important because 521(a)(2) and the legislative history make it clear that an imminent hazard or harm may result from a "condition or practice'' as well as a violation per se. The Office has modified Sections 842.11(b) and 842.12 (a)(1) and (b)(1) to state expressly that imminent hazards will be covered.

Additional commenters suggested that Section 842.11(b)(1)(i)(C) be amended to require Federal inspectors to consult with the State as to whether it has acted and to give the State opportunity to act, in cases of imminent danger or harm. The Office has not made this change. While the Federal inspector would naturally try to contact the State to determine whether the State had acted, to require this as a prerequisite to a Federal inspection would be contrary to Section 521(a)(1), which the regulation tracks.

{15299}A new Subsection (b)(2), transferred from 30 CFR 842.12(b), was added to define when an authorized representative has "reason to believe'' a violation, condition or practice exists. This new Subsection is based on language in 30 CFR 721.13(a), but was rewritten to shorten and clarify the language.

Two commenters suggested that additional language be inserted in 842.11(b)(ii)(C) setting forth what "adequate proof'' is regarding (1) a citizen's supplying information that a State regulatory authority has failed to act to remedy a violation and (2) a citizen's supplying information about an imminent hazard. The commenters felt that this phrase could be used to impose an unrealistically high standard of proof, thereby impairing the exercise of citizens' rights. The Office feels that further definition of "adequate proof'' is not necessary. In many instances a signed statement will suffice. A high standard of proof should not be required. It would be tragic if another Buffalo Creek disaster occurred because an oral complaint followed by a signed statement was not accepted as "adequate proof.''

It was also suggested that citizens be required to file affidavits. This is not necessary because the Act provides sanctions against persons who make false representations to the Office (Section 518(g)).

Several commenters asked that Section 842.11(d) be modified to require that Federal inspections be "coordinated'' with State inspections. It is not clear what was intended by the term "coordinated.'' (Does this mean that the inspections must be conducted jointly? That advance notice must be given to the States?) The Office has rejected this comment because there are certain inspections that can not be carried out jointly with States (e.g., in Federal lands programs) and others that should not be required to be carried out jointly (e.g., evaluative inspections). Federal inspections will be coordinated with State inspections to the extent necessary and appropriate to carry out the provisions of the Act and the regulations.

One commenter asked that inspectors not be allowed to enter an active mine site during nonworking hours unless accompanied by a company representative. It was also suggested that the inspector, on arrival at a mine site, should wait a reasonable time for a company representative to accompany him/her on the inspection. In two related comments, the Office was asked to require the authorized representative to inquire for, find, identify himself or herself to a person in charge and give notice at the site prior to inspecting.

Generally, inspectors make an effort to locate and identify themselves to those in charge of an operation before commencing their inspection, and company representatives are encouraged to accompany the inspector. However, it is not always possible or practical to locate the person in charge. The person in charge may be absent from the permit site, or may not be immediately found.

Comment was made that for an inspector to enter a mine site without intimate knowledge of the operation is dangerous to the inspector and others. The Office feels that the commenter greatly exaggerates the risk, especially since inspectors are very familiar with mine sites in general and, through study of the operator's mine maps and other materials, with the site they are inspecting.

For the foregoing reasons, no changes in 842.11(d) were made in response to these comments.

SECTION 842.12 Citizens' requests for Federal inspections.

Consideration was given to requiring all citizens' complaints to be initiated in writing. However, the convenience of the public and the necessity for prompt action in the case of imminent hazards seems to justify the use of oral reports followed by signed written statements.

Requests were received by the Office to amend Section 842.12(b) of the proposed regulations to use the language in the initial regulations (30 CFR 721.13(a)) regarding when a complaint gives the Office a reasonable basis to inspect. The language of the proposed subsection 842.12(b) had not been intended to change the test for "reasonable belief,'' merely to shorten it. Section 842.12(b) has been rewritten using language of Section 721.13(a) of the initial regulations, but shortened and clarified, and it has been transfered to 842.11 as a new Subsection (b)(2). Subsections (c) (f) of 842.11 were relettered (b) (e).

Commenters requested a modification to Section 842.12 to require a citizen to sign a release from damages for any injuries before being allowed to accompany the inspector on an inspection. The Office did not make this modification. The Act gives the citizen a right to accompany the inspector on the inspection. Ordinary tort law principles can be used to determine whether, if a citizen is injured on the site during an inspection, he may hold the operator liable for such injury.

OSM has no objection to a citizen signing a release form if he wishes to do so, but there is nothing in the Act or the legislative history to require a citizen to sign a release. However, OSM will insist that the citizen follow MSHA safety requirements, and OSM's regulations require that the citizen be under the direction, control and supervision of the inspector.

A suggestion was made that citizen complaints under Section 842.12(b) should be made to the State first before they were made to the Office. In other words, a citizen would have to state, when making a complaint to OSM, that he or she had contacted the State and the State had not taken appropriate action.

If the State is responsive to citizen complaints, there should be no reason why a citizen would request a Federal inspection rather than a State inspection. Section 842.11(b)1) requires OSM to notify the State of citizen complaints and allow the State 10 days to take inspection action, except where there is an imminent danger or harm and the State has failed to take appropriate action. In any event, the Office has no authority under the Act to require a citizen to ask for a State inspection before asking for a Federal inspection.

A number of comments regarding citizens accompanying inspectors were received. Some commenters felt that if the citizen accompanied the inspector on the site, the permittee/operator should be entitled to know the identity of the citizen. The Office accepted this comment. Such a requirement would not deter citizen complaints and would strike a fair balance between the interests of citizens and those of permittees/operators.

One commenter suggested that citizen informants should be limited in their right to accompany government inspectors so as to view only the areas which were the subject of their complaint. The Office believes that such a limitation would substantially interfere with the actual inspection of the mining operation because the inspection would be delayed while the citizen informant was brought in to view a particular area and then ushered out.

Several commenters discussed whether State programs must assure a right to a citizen to accompany the State inspector on an inspection resulting from his or her complaint. This issue is discussed in the preamble to Section 731.14(g)(4) and 840.15 above.

Several commenters suggested that Section 842.12(d)(3) be amended to strike the words "if any.'' The words "if any'' refer to the fact that a citizen does not have a right to review under Section 842.15 unless he has an interest which is or may be adversely affected Section 517(h)(1) of the Act. Therefore, no change was made.

{15300}Section 842.12(e) has been amended to specify time limits within which the Office must give copies of materials specified in Section 842.12(d) (1) and (2) to the person alleged by the citizen to be in violation.

One commenter raised the point that the term "person inspected'' is not appropriate when the Office decides not to inspect. Therefore the term "person alleged to be in violation'' has been adopted.

It was suggested that the person alleged to be in violation should be provided with a copy of the request before the inspection. The Office has not accepted this suggestion. It is illegal under Section 517(c)(2) of the Act to forewarn an operator of an impending Federal inspection.

Comments were received that the regulatory authority should not be required to conduct inspections without a search warrant. This comment was not accepted for the reasons discussed in the preamble to Section 840.12 above.

One commenter suggested that Section 842.13(a)(2) should specify that an inspector may have access only to records required under Section 517(b)(1) of the Act. The commenter suggested that such a change would eliminate ambiguity as to what records might be obtained. This suggested change would, in fact, create ambiguity. The section as written specifies records "under the Act, this Chapter, the applicable program, or any permit condition.'' This covers all stages of regulation, including approved State programs, and specifies where to look for the required records. The suggested change only refers to a broad general recordkeeping section. Accordingly, the Office has decided to retain the language of the proposed regulation.

SECTION 842.14 Review of adequacy and completeness of Federal inspections.

One commenter requested that Section 842.14 be amended to require OSM to assure that adequate and complete inspections are occurring whether or not a citizen complains. As now worded, Section 842.14 does not provide for procedures to insure that adequate and complete inspections be made, except with respect to citizen complaints.

Section 517(h)(2) of the Act can be read as providing for procedures only with respect to citizen complaints regarding inadequate or incomplete inspections. In the preamble to the proposed regulations (43 FR 41794, September 18, 1978), OSM stated its belief that a management review of adequacy and completeness of inspections, regardless of complaints, would be "in keeping with the wording of 517(h)(2)'' and solicited additional comments on criteria for determining what constitutes an adequate and complete inspection. No criteria were suggested.

The Office will develop and publish a plan for evaluating State administration and enforcement of State programs. Procedures for determining whether States are holding the required partial and complete inspections will be part of this plan. The Office has therefore chosen to adopt 842.14 as proposed.

Several commenters suggested that the Regional Director be required to inform the permittee of the results of his or her review of a decision not to inspect or enforce pursuant to the citizen's complaint. The commenters have a valid point. Accordingly, the Office modified Section 842.15(b) to require the Regional Director to inform within 10 days of the Federal inspection, or within 30 days of the complaint if there is no inspection.

Another comment suggested that Section 842.14 .15 be amended to grant citizens, as a matter of course, the right to seek formal review of the decision of the Regional Director under 43 CFR 4.1280 et seq.

The commenter pointed out that this right to formal review is particularly important where the citizen seeks review of OSM inaction under Section 517(h)(1) and of inadequate or incomplete OSM inspections under Section 517(h)(2), since there is no other formal procedural mechanism by which a citizen may review OSM's performance in these crucial areas.

While it is true that citizens will have no right to formal administrative review of the Office's refusal to issue a notice or order, a citizen can still file a citizen's suit in Federal court. Also, a formal administrative review of a notice or order is available to anyone whose interest is adversely affected. Therefore, the Office has chosen not to amend these sections as proposed.

SECTION 842.16 Availability of records.

This section was modified to clarify what documents should be made available to the public. Subsection (b) as proposed was deleted because this material is covered in new clause (a)(1). A new Subsection (b) was added to clarify that the State is entitled to all documents and information made available to the public under subsection (a). For the reasons discussed above with respect to Section 840.14, Subsection (a) was modified to delete the definition of "conveniently available.''

SUBCHAPTER L -- INSPECTION AND ENFORCEMENT, 30 CFR PART 843 -- FEDERAL ENFORCEMENT

Statutory Authority: 102, 201, 501(b), 503, 504, 510, 517, 518, 520, 521, 523, 525, 526 and 710 of Pub. L. 95 87, 91 Stat. 448, 449, 468, 470, 471, 480, 498, 499, 504, 510, 511, and 516 (30 U.S.C. 1202, 1211, 1251, 1253, 1254, 1260, 1267, 1268, 1271, 1273, 1275, and 1291).

SECTION 843.5 Definitions.

This section was deleted because the only definition listed, "authorized representative of the Secretary,'' was unnecessary.

SECTION 843.11 Cessation orders.

Several commenters question whether inspectors should be allowed to issue cessation orders in the field. The Office considered modifying Section 843.11(a)(1) to permit closure only by inspector supervisors at least through June 3, 1982, or to allow a State to issue cessation orders at department level rather than inspector level, as suggested by the commenters.

The Office recognizes the importance of hiring, training, and supervising inspectors so that they have enough judgment and experience not to issue unjustified cessation orders. The Office believes, however, that this is a matter of good administrative practice and management, and should not be dealt with in regulations. Furthermore, the alternatives proposed represent restrictions on the Office's ability to issue cessation orders which go far beyond what is necessary to accomplish the objective of assuring that no unjustified cessation order will be issued. In any event, the Office feels that the Act requires issuance of cessation orders in the field, as mentioned above with respect to Section 840.12(b) and (c). Sections 521(a)(2) and (3) provide that the Secretary or his authorized representative shall "immediately'' order a cessation of surface coal mining operations in the case of imminent danger to the health or safety of the public, significant imminent environmental harm, or failure to abate a violation. These provisions are inconsistent with the issuance of a cessation order at a departmental level. The issuance of a cessation order by the inspector in the field assures an immediate response to a serious problem.

The legislative history states that "if the inspector determines that any violation of the Act creates an imminent danger . . .

the inspector must order a cessation of the mining operation . . .'' H. Rep. 95 218, 95th Cong., 1st Sess. 129 (1977); S. Rep. 95 128, 95th Cong., 1st Sess. 90 (1977) (emphasis added). The Office feels that properly trained and supervised inspectors are fully capable of making the judgments appropriate to issue a cessation order. The Office recognizes that this authority has not heretofore been given to inspectors by some States and will work closely with these States to develop a reasonable phase-in of the authority where necessary.

{15301}One commenter recommended that there should be a Board of Review composed of representatives of regulatory agencies, employees, operators and the public which would have authority to approve or disapprove notices and orders "recommended'' by inspectors, to recommend timetables for corrective action and to determine responsibility for violations. For the reasons discussed above, the Office believes that such a system (whereby inspectors would only recommend issuance of notices or orders) is not authorized in the Act. Therefore, the Office has chosen to adopt the regulations as proposed.

One commenter questioned whether a cessation order may be issued by a Federal inspector as a result of an inspection other than one under Section 521(a)(1) of the Act. Section 521(a)(2) of the Act provides for issuing cessation orders "on the basis of any Federal inspection.'' Section 517(a) authorizes Federal inspections to evaluate the administration of State programs or to develop or enforce any Federal program, while Section 521(a)(1) authorizes Federal inspections based on failure of the State to take appropriate action with respect to an alleged violation.

The commenter in effect reads Section 521(a)(2) as providing that "any Federal inspection'' does not mean any Federal inspection authorized under Act but only an inspection authorized under Section 521(a)(1). There is nothing in the Act or the legislative history to justify this narrow reading of Section 521(a)(2). Furthermore, to read Section 521(a)(2) as the commenter proposes would mean that the Office lacks authority to issue cessation orders during the initial regulatory period and during a Federal program. The Offices does not believe this to be a reasonable reading of the Act and has not modified Section 843.11 in response to the comment. One commenter urged the addition of a requirement that inspections resulting in cessation orders must be conducted pursuant to the Act and Section 842.11(a). The commenter wanted to attempt to "limit the overzealous Federal inspector in his ability to disrupt a State program.'' Under Section 517(b), OSM has the power to conduct an inspection of any site to evaluate the administration of a State program. Disputes between the Office and a State concerning inspections which the State feels are inappropriate or disruptive should be handled by cooperative consultation between the Office and the State. An operator who is causing an imminent danger or harm should not be allowed to continue to do just because the State feels the OSM inspection was "disruptive.'' The Office chose not to incorporate this requested change into the regulations.

Several commenters suggested that the phrase "land, air, and water resources'' (which is taken from Section 521(a)(2) of the Act) be changed in Section 843.11(a)(1)(ii) and elsewhere to read "land, air, water, or cultural resources.'' The Office believes that the term "land resources'' may be broad enough to cover visual and cultural resources associated with land, such as archeological sites, sites of historic significance or the aesthetic values of mountain ranges. Therefore, no change was made in this section of the regulations.

Two commenters proposed that the Office require a cessation of only that portion of the operations relevant to the violation. The Office did not accept this proposal. The Act provides in Section 521(a) (2) and (3) that the inspector shall immediately order a cessation of surface coal mining and reclamation operations or the portion thereof relevant to the violation. If Congress had intended that only the portion "relevant to'' the violation could be shut down, it would not have provided for cessation of the entire operation as an alternative. There are cases where cessation of the entire operation may be necessary or where it may result in more expeditious abatement of the condition, practice or violation involved. If such is the case, cessation of the entire operation may be entirely justified. Nevertheless, inspectors should not close down more of an operation than in their judgment is necessary under the circumstances.

The initial regulations (30 CFR 722.11(d)) provide that imminent hazards must be abated in the most expeditious manner "physically'' possible. A commenter requested that this word be reinserted in Section 843.11(a)(2) to show that cost is not a consideration in determining what is "the most expeditious manner possible.'' By deleting the word "physically'' the Office did not intend to alter the meaning of Section 843.11(a)(2) and (b)(2) from that of 30 CFR 722.11(d). As discussed more fully below, inspectors are not authorized by the Act to take cost into account when determining which affirmative obligations to require. Accordingly, the comment was accepted.

The cost of compliance with abatement requirements in cessation orders concerned several commenters. They questioned whether, in issuing a cessation order requiring abatement in "the most expeditious manner possible,'' the inspector should be required to consider cost and effectiveness of abatement alternatives as well as rapidity of abatement. One of the commenters stated that Section 102(f) of the Act authorizes consideration of costs. This section provides that one of the purposes of the Act is to:

"assure that the coal supply essential to the Nation's energy requirements, and to its economic and social well-being is provided and strike a balance between protection of the environment and agricultural productivity and the Nation's need for coal as an essential source of energy.'' The Office finds nothing in this Section suggesting that cost be taken into account in determining what affirmative obligations should be required for cessation orders.

However, an inspector acting reasonably would not knowingly require an operator to use a more expensive and less effective means of abatement if a less expensive and more effective method could accomplish the same regulatory result in the same time. If the operator knows of such a method, he should inform the inspector and ask him to modify his order. The inspector should modify his order if he thinks the method requested would assure that the imminent danger will be abated as promptly as possible. If the inspector thinks the method suggested by the operator, though less expensive or more effective, will take a longer time to abate the violation, he would be justified in not modifying the order. Accordingly, no changes were made.

Comments were received recommending that Section 843.11(e) be modified to require an inspector to modify or vacate all part of a cessation order once the imminent danger has been abated. Sections 521(a) (2) and (3) of the Act provide that a cessation order issued under those subsections shall remain in effect until the Secretary or his authorized representative determines that the condition, practice or violation has been abated, or until modified, vacated or terminated.

It is the policy of the Office that a regulatory authority should terminate cessation orders or modify them to permit resumption of operations as soon as reasonably possible to avoid unnecessary economic harm to an operator. While Section 521(a) (2) and (3) of the Act provides that a cessation order may be kept in force until the condition, practice or violation is abated, Section 843.11(e) of the regulations allows modification of a cessation order to permit resumption of operations when the imminent harm has been abated, even though the violation may take longer to correct. However, use of this authority may involve complex and difficult judgments. If modification of the cessation order were mandated, the permittee/operator could repeatedly call back the inspector for a reinspection each time one of the violations, conditions or practices for which the order was issued ended, on the ground that the imminent danger had passed, even though abatement had not been completed. This would be unworkable from an administrative standpoint. Therefore, no change was made in Section 843.11(e).

{15302}It was requested that the circumstances when issuance of a cessation order would be appropriate should be enumerated. The Office made no change. The terms "imminent danger to the health and safety of the public'' and "significant imminent environmental harm'' have been defined in 30 CFR 701.5. The Office feels that these terms cannot usefully be further defined at this time.

SECTION 843.12 Notices of violation.

Section 843.12(b)(1) requires a notice of violation to "set forth with reasonable specificity . . . the nature of the violation.'' One commenter called for citation in the notice of violation to the section of the Act and the regulations violated. The Office agrees that a notice of violation should include a citation to the regulations, but a citation of the Act is not necessary unless the violation is contained in the Act and not in the regulations. However, it is unnecessary to modify Section 843.12(b)(1) since a notice of violation which did not specify the appropriate section would not meet the requirements of Section 843.12(b)(1).

Other comments were received on the provision in Section 843.12(d) which requires an authorized representative of the Secretary to issue a cessation order if the person to whom the notice of violation was issued fails to accomplish an interim step. The commenters believed that this requirement was too harsh. The Office believes that cessation orders for failure to meet interim steps are authorized under Section 521 of the Act and are necessary for rational enforcement of the Act. The practice provides an effective enforcement tool to produce orderly and efficient abatement of the violations underlying the cessation order. MSHA used interim steps under the Federal Coal Mine Health and Safety Act of 1969 (now the Federal Safety and Health Amendments Act of 1977) and these proved to be satisfactory. The enforcement scheme under the 1969 Act, like that in the Surface Mining Control and Reclamation Act, provides for the issuance of notices of violation which, if not complied with, ripen into cessation (closure) orders. Notices of violation must give the operator a reasonable time to abate, not to exceed 90 days. If the abatement period is long, and no effort is made by the operator to abate, the Office would, without use of interim steps, have to wait until the abatement period expired before taking action. This would frustrate Congress' intent to have rapid abatement of violations, and would expose the operator to a very large fine (mininim $750 per violation per day), for each day the violation continued after the time set for abatement, as provided in Section 518(h) of the Act. Accordingly, no change was made.

A major issue was raised with respect to the authority of the Office to issue notices of violation during the permanent program. The proposed regulation (Section 843.12(d)) provided for mere reporting of a violation to the State and the operator, rather than the issuance of a notice of violation, when a violation is found by OSM in a State with an approved State program. The only exception to this was where OSM is enforcing the State program pursuant to Section 504(b) or Section 521(b) of the Act. The preamble to the proposed regulations stated, however, that OSM was considering the alternative approach of issuing regular notices of violation, and invited comments on how to correctly interpret the Act and the legislative history.

Section 521(a)(3) of the Act lists those instances when the Secretary shall issue notices of violation. Section 521(a)(1) of the Act provides that OSM is to notify the State regulatory authority when OSM learns that there is a violation. If the State fails to take "appropriate action'' within 10 days after notification, then OSM is to immediately conduct an inspection. If OSM cannot issue a notice of violation following the State regulatory authority's refusal or failure to take action in the first instance, then the Federal inspection under Section 521(a)(1) may be pointless. One answer to this statement is that the point of the Federal inspection in such a situation is to gather information for a Section 521(b) proceeding (OSM taking over all or a portion of a State program). The difficulty with this argument is that, as a practical matter, it would leave a large gap in the enforcement scheme of the Act.

The Office's ability to take over a part of a State program as a result of the State's refusal or inability to take action in isolated cases may be limited and may require a great deal of time. If this is true, then during the interim violations which are not imminent hazards could go totally unpunished and unabated. It should be pointed out that some of these notice-of-violation situations could be potentially serious or widespread, even though a hazard to life or significant environmental harm was not "imminent'' at the time of the Federal inspection. There is no reason to believe that Congress intended that such a gap exist in the permanent program or that Congress intended OSM to sit idly by while these violations ripen into imminent hazards so that OSM can act under the provisions of Section 521(a)(2) of the Act. The Office concurs with a commenter that this would be a "senseless risk to the environment and public health and safety.''

The legislative history of the Act does give conflicting statements on this issue. There is a fairly detailed discussion of this legislative history in a comment to this section. This discussion is contained in the comments of the Council of the Southern Mountains, Inc., page 85 97. The Office reads the legislative history, when considered in conjunction with the Act, as allowing OSM to issue notices of violation, at least in some circumstances, during a State program.

As a legal matter, issuance of notices of violation fills a void or gap in the Federal enforcement scheme_a gap between the existence of the uncorrected violation and the prerequisite showing for Section 521(b) proceedings to take over enforcement of a State program. As Judge Flannery has stated in In re: Surface Mining Regulation Litigation, 452 F. Supp. 327, 11 E.R.C. 2078 (D. D.C., August 24, 1978), the Secretary has the authority to fill gaps in the statutory scheme with implementing regulations which are consistent with that scheme.

An alternative suggested by the same commenter was to allow OSM to issue notices of violation during a Federal inspection but with the following provision:

(a) If the State had 10 days' notice of the violation prior to the Federal inspection, but did not take appropriate action, then the Federal notice of violation would be effective immediately; however,

(b) When a Federal inspection disclosed a violation, and the State had not had an opportunity to act, then the notice would be issued to the operator, to become effective 10 days later. A copy of the notice would go immediately to the State and the notice could be vacated if the State timely informed OSM that it had taken appropriate action. Thus, there would be on-site issuance of notices of violation in all cases.

While this alternative goes far in filling the gap which would exist in the enforcement scheme if the language in the proposed regulation were adopted, it seems rather complex and unwieldy. Practical problems might prevent such a procedure from being effective. It is unclear whether a notice of violation which does not become effective immediately is authorized by Section 521(a)(3) of the Act. Furthermore, there might be confusion on the part of the operator as to whether the OSM notice was in effect or not.

{15303}Another alternative considered was to authorize Federal inspectors to issue notices of violation only after the State has been given an opportunity to take appropriate enforcement action. In other words, if an OSM inspector discovers a violation at a mine, he reports the violation to the operator and the State and gives the State 10 days to take appropriate action to require the operator to correct the violation. If the State takes such action, OSM does nothing further. If the State does not take the proper action, OSM may return to the mine site and issue a regular notice of violation. This alternative comes closest to filling the gap identified by the commenters. If the State had already been given an opportunity to take "appropriate action'' and had failed to do so in 10 days, the OSM inspector could issue the notice on the spot without re-referring the case to the State.

The Office has incorporated this last alternative into a new Subsection (a)(2) of 843.12. The previous subsections (a) (2), (b) and (c) have been renumbered as Subsections (b), (c) and (d). The previous subsection (d) has been deleted.

SECTION 843.13 Suspension or revocation of permits.

As 843.12(a)(2) and (3) were proposed, the Secretary could find that a pattern of violations exists after considering certain factors, including the number of violations of provisions relating or not relating to "the same general topic.'' Sections 843.12(a)(2) and (3) were modified to return to the language used in the interim regulations: "the same or related requirements'' and "different requirements.'' Some commenters requested a more specific definition of the concept. The Office intends to issue guidance as to which sections are considered "related'' or "different.''

Violations of any requirements in two or more Federal inspections in any 12-month period can lead to a finding of pattern of violations, while violations of the same or related requirements in three or more Federal inspections in a 12-month period must result in a finding of pattern of violations. Several commenters observed that this standard would be unfair if a particular mine were inspected 365 times during a twelve-month period and that, therefore, some provision should be made in the regulation for taking into account the number of inspection days when determining whether a pattern exists.

The Office believes that such a provision would be inappropriate. It should not be a defense to a finding of pattern of violations that the operator has been inspected too often. In many cases, an operator is inspected more frequently than the average because previous inspections have resulted in notices or orders being issued, thus necessitating follow-up inspections to determine if abatement has occurred. Also, more inspections of a particular operator may occur because of frequent complaints from citizens in the vicinity. If unwarranted or willful violations are observed on these inspections, the operator should not be permitted to defend them on the ground that he was inspected too often.

The Office received a suggestion to modify 843.13(a) to specify that the conduct of individuals who are acting contrary to company directions or policy should not be included in determining what is a pattern of unwarranted or willful violations. For the reasons discussed below with regard to 845.13, the Office modified 843.13(a) to provide that the actions or inactions of any person conducting surface coal mining operations on behalf of the permittee will be attributed to the permittee, excluding those actions which the permittee establishes were acts of deliberate sabotage. This would make the show-cause provisions conform with 30 CFR 845.13(b)(3)(iii) relating to imposition of civil penalties. A mere failure of the part of an individual to follow company directions or policy would not be an act of deliberate sabotage. Sabotage necessarily involves an element of intent on the part of the person committing the conduct to harm the permittee or operator or his property, such as in the case of vandalism by third parties.

Several commenters requested that the term "willful violation'' in 843.13(a) be redefined. One commenter added that if the definition put forth in the proposed regulations were allowed to stand, any violation would be a willful one, because intent of the party is not properly taken into consideration. This commenter proposed to define "willful violation'' as one "willfully caused,'' which the Office believes does not add to the meaning of the term. However, the Office did re-evaluate its proposed definition of the term "willful'' and has redefined it for clarification.

A new clause (4) was added to 843.13(a) to clarify which violations are to be considered in determining whether or not a pattern of violations exists. For instance, notices of violation issued by a State would not be considered violations issued during a Federal inspection.

One commenter suggested deletion of the provision in 843.13(b) allowing the Director not to issue a show-cause order if he finds that it would not further the enforcement of the Act. The commenter argued that 521(a)(4) mandates issuance of a show-cause order upon a finding of pattern of violations.

Section 843.13(a) in effect says that the Office must consider whether a pattern of violations exists when certain events have occurred. Conceivably, this automatic provision could result in unfair issuance of a show-cause order. Therefore, a waiver provision in 843.13(b) is needed.

However, the Office feels that the test used in the proposed regulations for determining when the waiver should be granted was unworkable and has modified the test. The new test is very stringent and will apply only in exceptional circumstances.

Several commenters requested that the Office amend 843.13(b) to require the Office to consult with the State on whether it has acted and to give the State opportunity to act. The Office anticipates that it will consult with the State if it appears that an operator is approaching a "pattern of violations.'' However, the Office does not feel that it is necessary to provide in a regulation that the Office must always consult with the State as a prerequisite to the issuance of an order to show cause.

One commenter requested that 843.13(e) be amended to require suspension or revocation of a permit upon a finding of a pattern of violations, and to require mandatory minimum suspension of three days and the imposition of preconditions to termination of suspension. The interim regulations (30 CFR 722.16(d)(2)) provide that "if the Secretary finds that a pattern of violations exists or has existed, the permit and right to mine under this Act shall be either suspended or revoked and the permittee directed to complete necessary corrective measures and reclamation operations.'' This provision was unintentionally omitted from the proposed regulations, and the Office has modified the regulations to restore the concept. In addition, the automatic suspension or revocation of a permit upon a finding of a pattern of violations, the mandatory minimum 3-day suspension, and the authority to impose preconditions to lifting the suspension are provided for in the procedural regulations of the Office of Hearing and Appeals relating to formal show-cause hearings (43 CFR 4.1194). The wording of 521(a)(4) of the Act and the legislative history seem to require automatic suspension of revocation after a finding of a pattern of violations. The Office has modified 843.13(e) to so provide.

Section 843.13(f) of the proposed regulations provided that the appropriate regulatory authority could grant attorneys' fees following an administrative proceeding. Several commenters pointed out that authority for such an action is unclear. The Office has decided to delete this Section because it is confusing and inconsistent with the procedural hearing regulations in 43 CFR 4.1290 4.1296. The authority for such a provision is discussed in the preamble to those regulations.

{15304}Several commenters suggested that 843.14 be modified to provide that a notice of violation or cessation order must be mailed to the person to whom it is issued, when it has been served on the person in charge of the operation. The Office does not agree with this suggestion. The permittee/operator should be able to rely on its own employees/agents to forward copies of notices and cessation orders. In some instances, OSM may want to mail notices to the permittee or operator (for instance, to inform corporate officers of violations the field personnel are not disclosing to the officers), but that should be voluntary, not mandatory.

In a related comment, it was suggested that on-site service of notices of violation or cessation orders should be required unless circumstances prevent such service. Normally notices of violation or cessation orders are served at the site. There are two exceptions to this. First, there may be no appropriate person at the site to accept service, and second, the inspector may need to return to his office to obtain technical or other assistance to determine whether a violation has occurred. In either case it would not make sense to require the inspector to travel hundreds of miles to return to the site to deliver the notice or order in person.

A notice or order cannot take effect until the permittee/operator has actual or constructive notice of it. This will mean that, especially in cessation order situations, the inspector will make every effort to find and personally serve the permittee/operator or one of his representatives or employees. Accordingly, the Office adopted 843.14(a)(2) as proposed.

Several commenters suggested that there be a provision in the regulations that would allow the operator to designate a corporate agent for service of process, to whom all cessation orders and notices of violation could be "immediately sent.'' The Office has decided not to include this suggested provision. Section 843.14(c) provides for designation of an agent for service, but service on the designated agent is optional. The Office does not have to serve the designated agent if, for instance, it has served the person in charge of the operation as provided in 843.14(a)(1). It would be a burden on inspectors in the field to require them to "immediately send'' a copy of each notice or order to the designated agent. The Office believes that the operator should be able to rely on its own employees and agents to inform it promptly of the issuance of citations. If requested, the Office would usually mail copies, as a courtesy, to a central office of the permittee. But this should not be required or be made part of service.

SECTION 843.15 Informal public hearing.

Subsection (a) was modified to provide that the informal public hearing may be held at or near the mine site or at any other location acceptable to the person to whom the notice or order was issued. The Office will normally hold the hearing at the regional, district or field office closest to the mine site. However, if requested by the operator or any other interested person, the Office will consider holding the hearing at another location.

Subsection (a) was also modified to clarify that a notice or order which expires under this Section, like a notice or order which is terminated, is valid for the period during which it was in effect. This is to be contrasted with a notice or order which is vacated. A vacated notice or order is treated as though it never existed, whereas a notice or order that expires or is terminated counts as a violation for purposes of penalty assessment (Part 845), pattern of violations ( 843.13) and history of previous violations ( 845.13(b)(1)). A notice or order which is vacated is not counted for these purposes.

Subsections (c) and (d) were deleted because, though the Office believes the procedure set forth therein is entirely appropriate, the Office has decided to schedule informal public hearings in all cases except where the permittee/operator waives the hearing in writing.

Subsections (e) (i) have been relettered as (c) (g).

New subsection (c) was revised to delete the requirement for a five-day notice of the hearing. Because of the economic impact of cessation of mining, the Office will, if requested, hold the hearing as soon as practicable after issuance of the notice or order. This may mean a five-day notice cannot always be given.

One commenter suggested that citizens should have a right to an informal hearing, particularly where the notice of violation or cessation order relates to a condition or practice of which the citizens had formally complained. The Office believes that the proposed language should be retained and that no change is necessary. A fair reading of the Act and the legislative history indicates that informal public hearings were intended to limit the time that mining could be ceased without some form of hearing. Citizens have other effective means of communicating with the Office regarding notices of violations and cessation orders. They can request an informal meeting with the Office to discuss their concerns or may, if a citizen's complaint was filed, request review pursuant to 842.15.

One commenter urged that informal review should be provided for notices of violation not requiring cessation of mining. The commenter said that the operator is faced with the choice of accepting the notice without any chance to explain his or her side or to go into an involved and expensive hearing procedure.

The Office has retained the proposed language. Section 843.15(a) follows the mandate of 521(a)(5) of the Act, which only requires the Office to provide such informal public hearings for notices or orders requiring cessation of mining. Reviews for this type of notice or order are necessary due to the substantial potential economic consequences to the operator caused by cessation of operations. The Act does not contemplate imposing upon the Office the administrative burden of holding informal public hearings for every notice of violation issued. The operator is encouraged, however, to attempt to reach an informal resolution of the issue by contacting the inspector or his supervisor to discuss the operator's concerns. If persuaded that the notice was issued in error, the inspector may modify or vacate the notice of violation. I11One commenter stated that the restriction upon the later use of evidence or statements made at an informal public hearing should be deleted because it would encourage a party at such an informal hearing to give dishonest testimony. It is equally probable that operators will be more honest and forthright concerning violations if they know that what they say cannot be used against them later. The principle is based on the general rule that evidence of statements made at settlement negotiations may not be introduced in subsequent court proceedings. The Office believes that the concept in proposed 843.15(j) should be retained. Language was added to clarify that the limitation is not intended to prevent use by a party, in a later proceeding, of evidence he or she furnished in an informal hearing.

Section 843.15(j) in the proposed regulations was deleted in the final regulations, and its contents were moved to 843.15(a) and 843.15(i) for an overall improvement in the organization of the section on informal public hearings.

SECTION 843.17 Failure to give notice and lack of information.

One commenter stated that a notice or order should be vacated if it is determined that, even though there was a violation, OSM did not have sufficient information to conduct an inspection. He believed that Federal authorities should be required to comply with their own regulations, and that if his suggestions were adopted, frivolous proceedings would be avoided or minimized.

The Office believes that the proposed language in 843.17 should be retained. If a violation exists, the inspection cannot be said to be frivolous, and if there is no violation, there is nothing to abate. More importantly, the purpose of the procedure outlined in 521(a)(1), upon which 842.11(b) is based, is to define the circumstances in which the Office will defer to the State regulatory authority. It was not intended to benefit the permittee/operator. Where there is a violation, it would violate the spirit of the Act to vacate the notice or order simply because it was found that OSM did not have sufficient information under 30 CFR 842.11(b)(1)(i) and (2) to justify an inspection, particularly in situations where there is no State regulatory authority (30 CFR 842.11(b)(1)(ii)(A)) or where there is an imminent hazard or harm. The Office is charged with enforcement of the Act and may conduct inspections under 842.11(d) on a random basis and without prior notice. Further, while 842.11(c) requires a minimum number of inspections where OSM is the regulatory authority, it places no limitation on the maximum number, so that inspections may be conducted whether or not they are based on specific information.

The reference to administrative review proceedings was omitted because the regulation should apply in all proceedings, not just administrative proceedings.

SECTION 843.18 Inability to comply

Several commenters felt an order to show cause, cessation order or notice of violation should be vacated if there was a technological "inability to comply.'' The Office did not accept this comment. The Act and the regulations require that certain performance standards be met, and there is no reason to believe that these standards are technologically impossible to meet.

However, when an operator violates the Act or the regulations, it may be technologically impossible to undo the damage. If this is so, there may be no way to require "remedial action'' or "affirmative obligations,'' which presuppose that it is technologically possible to ameliorate the situation. However, the fact that the damage cannot be undone is not a good reason for vacating the citation. As discussed above, when a citation is "vacated,'' it is treated as though it has never been issued and no penalty is assessed. A notice or order is "terminated'' when all required remedial actions and affirmative obligations have been accomplished. If an operator has caused damage which cannot be undone and for which no remedial action or affirmative obligation can be prescribed, the citation must be terminated (not vacated). However, a penalty will be imposed in such a situation and the violation will remain in the operator's file.

One commenter suggested that there could be short-term inability to comply due to weather problems, material shortages and so forth. In such cases, the operator may request an extension of time for abatement, subject to the 90-day limit on the abatement period.

Force majeure may provide an exception to the 90-day rule, but there is nothing in the Act or the legislative history so indicating.

A comment was made that 843.18 should be deleted because there might be circumstances where vacating a notice or order is in the best interests of all parties. As discussed above, a notice or order can be terminated if all possible remedial actions have been taken. If a violation has occurred, there would be no justification under the Act for vacating it.

A commenter said that inability to comply should not be the basis for suspension or revocation of a permit, because there may be only one insubstantial requirement which cannot be met. As discussed above, the Office knows of no part of the Act or the regulations, whether or not "substantial'', that cannot be complied with. The fear that a permit might be revoked for failure to do some insignificant but impossible thing is unfounded.

SECTION 843.19 Injunctive relief

Commenters questioned whether the Attorney General should be able to seek injunctive relief where an operator violates an order of an "authorized representative of the Secretary'' (as opposed to an order of "the Secretary''). Section 521(c) provides that "the Secretary'' may request injunctive relief. The commenters argued that permitting only the Secretary to request injunctive relief would prevent the Office from seeking injunctive relief to enforce erroneous or invalid orders issued by authorized representatives of the Secretary before the permittee could avail himself of his administrative remedies. Also, it was pointed out that 521(a) uses the word "Secretary'' as well as "authorized representative of the Secretary,'' and that when the Act says "Secretary'' this should be taken literally.

"Secretary'' and "authorized representative of the Secretary'' are used interchangeably in 521 and elsewhere in the Act. To read "Secretary'' literally would cause anomalous and impractical results. For example, 521(a)(2) of the Act states that where "the Secretary'' finds that a cessation order will not completely abate the imminent danger, "the Secretary'' shall impose affirmative obligations. If this were read literally, the Secretary of the Interior would have to visit personally the minesite to make this determination, a result Congress obviously did not intend. The same anomalous result would occur if "Secretary'' were read literally in 521(c) of the Act regarding injunctions. This is because, as a practical matter, the Secretary does not personally issue orders relating to enforcement.

A permittee cannot ignore any order or decision while appealing it. If the permittee wants a stay, he may apply for the stay via the temporary relief provisions in the Act ( 525(c) and 526(c)).

SUBCHAPTER L -- INSPECTION AND ENFORCEMENT, 30 CFR PART 845 -- CIVIL PENALTIES

Statutory authority: Secs. 102, 201, 501(b), 517, 518, 521, 523 and 525 of Pub. L. 95 87, 91 Stat. 448, 449, 468, 498, 499, 504, 510, and 511 (30 U.S.C. 1202, 1211, 1251, 1267, 1268, 1271, 1273 and 1275).

The basis and purpose of this part are discussed generally in the preamble to the proposed regulations, 43 FR 41796 41797 (September 18, 1978).

SECTION 845.12 When penalty will be assessed

One commenter asked that, regardless of whether the notice of violation is assigned 30 points or less, violations caused by conduct characterized as reckless, knowing, or intentional should automatically trigger a fine. As mentioned in 845.12, in determining whether to assess an under-31 point penalty, the Office takes into account the four statutory criteria, including negligence and good faith in compliance. As a matter of policy, the Office currently assesses discretionary penalties in cases of reckless or willful misconduct or lack of good faith in complying.

A commenter objected to the use of 30 points as the cut-off number above which penalties are mandatory for notices of violation, and requested an explanation of how the point system was devised and how the 31-point figure was arrived at. The commenter stated that the point system is "without any rational basis''.

The Office believes that use of a point system is the only adequate way to achieve rational and consistent assessments. The point system was modeled after the one developed and successfully used by MSHA. The points assigned for various categories of violations were chosen by considering what penalties would be appropriate for numerous types of hypothetical violation situations. Careful thought was given to the weight that should be given to the various criteria required to be applied in determining penalties, and how these criteria should be defined. The 31-point threshold for mandatory penalties was chosen because a violation of that magnitude was judged serious enough to warrant a mandatory penalty.

{15306}The Office plans to develop further guidance regarding the application of the point system which will greatly increase the consistency and predictability of penalty assessments. Furthermore, the Office will review the operation of the point system as applied to particular cases to determine whether further modification should be made.

A commenter noted that in the initial regulations, the preamble stated that the 30-point number would be used to determine whether a penalty would be assessed, while under the proposed regulations the determination as to whether to assess a penalty for an under-30 point violation is determined by considering the four statutory criteria_history of previous violations at the particular operation, seriousness, negligence, and demonstrated good faith in attempting to comply after notification of the violation. The initial regulations provide that in determining "whether to assess'' a penalty the Office will consider the four criteria ( 723.11(c) and 723.12(a)). This appears to require the Office to use the criteria in the point system to determine not only how many points to award, but also whether or not to assess the discretionary penalty. The preamble to the initial regulations contains two contradictory statements concerning this question. In 42 FR 62670, December 13, 1977, Paragraph 7 states flatly that a penalty will not be assesed for a violation of 27 points, while Paragraph 9 on the same page states that assessments for violations under 30 points are discretionary. Faced with this discrepancy and the plain language of the regulations, the Office has interpreted 723.11 and 723.12 of the initial regulations to require use of the statutory criteria in the point system to determine whether to assess a penalty, as follows: (1) the point system is used to determine whether the violation exceeds 30 points and (2) if not, the points assigned with respect to each of the four criteria are examined to determine whether to assess the discretionary penalty. For example, if a violation was assessed 29 points, including 10 points for bad faith in complying, the Office would exercise its discretion to assess. The Office feels that, as noted above, penalties should be assessed in cases of reckless, knowing, or willful violations. Therefore the Office did not adopt the suggestion that there be no penalty for any under-31 point violation.

The reference in 845.12 (a) and (b) to "a violation contained in'' a notice of violation or cessation order was deleted. In issuing notices and orders, the Office uses a form which contains, on the first page, information concerning the operator and the site and giving the identification number of the notice or order. Each violation for which a notice of violation (or order) is to be issued is described in a sheet attached to the first page. To save inspector time, the first page is not filled out separately for each violation; rather, all violations are attached to one first page. Nevertheless each violation is treated as a separate notice of violation or cessation order and the Office's forms so provide. The term "violation contained in'' a notice or order referred to this manner of writing up violations. The Office deleted the term because it is not used elsewhere and could lead to confusion.

One commenter felt there was no provision or allowance for any exercise of discretion by the regulatory authority to educate the operator. This is not accurate. First, 845 does provide a "grace period'' for less serious violations in the form of discretionary assessment of penalties under 30 points. To date, for more than 35 percent of all notices of violation, the Office has assessed no penalty. Where the violation is serious (over 30 points) or intentional, or where it results in a cessation order, it should be assessed, as the regulations provide. Second, there is no need for more time to educate operators. The Act has been in effect since August 3, 1977_one year and eight months; the interim regulations have been in effect for one year and three months; and if the State program differs from the permanent program regulations, the State will have a considerable period of time to "educate'' operators about the parts of the State program that differ from the permanent regulations before the State program goes into effect. Therefore, no change was made in response to this comment.

SECTION 845.13 Point system for penalties.

Section 845.13(b)(1) (i) and (ii) were rewritten as a new subsection (i) to shorten and clarify the regulation. The purpose of these subsections, which were based on 723.12(b) of the interim regulations, is to give the operator a chance to exhaust his administrative and judicial remedies before having the violations counted as "previous history.'' The idea is that the violation shouldn't be counted as long as there is a possibility that the notice or order might be held invalid. This could occur in a 525 hearing, a 518 hearing or a court proceeding.

The Office has interpreted the phrase "the subject of pending administrative or judicial review'' in 723.12(b) of the initial regulations to cover violations which are the subject of a conference or for which the time to request review or a conference has not expired. The new language makes this interpretation clear. It should be noted that the exception applies only with respect to review of the notice or order, not the penalty. Thus, if a 525 hearing has been held, and the time to appeal has expired, the violation will be counted as previous history even if a 518 hearing has been requested.

Several commenters requested that, in determining points for the history of previous violations, violations for which the Office in its discretion has decided not to assess a penalty should not be counted. One commenter stated that 845.13(b)(1)(iii) would force the operator to request a hearing to avoid being credited with a violation it did not commit but for which it was not assessed a penalty. Since only 1 point is assessed for a notice of violation and 5 points for a cessation order, it seems doubtful that this is a likely course of action. If the permittee/operator feels there was no violation, he can informally request the Office to vacate the NOV or CO. If the Office does not agree with him, he must decide whether or not to contest the notice or order. In any event 518(a) requires that consideration be given to the permittee's history of previous violations at the particular operation in determining the amount of the penalty. Therefore, the requested change would be unlawful, since the violation did occur even though the penalty was not assessed.

One commenter recommended that tonnage be taken into account in the point system to allow for fairer treatment of the small operator. MSHA is required to consider production tonnage in determining penalties under the Mine Safety and Health Act. However, Congress omitted production tonnage from the criteria to be considered in the Act. Therefore, the Office believes that Congress did not wish to have different penalties for small operators.

The commenter argued that small operators produce less environmental harm. This fact, if true, will be taken into account under the "seriousness'' criterion contained in 845.13(b)(2).

Several commenters objected to attributing the actions of all persons on the minesite to the permittee or operator. They argued that industry cannot prevent employees from disregarding company instructions. To relieve the operator of responsibility for the actions of persons working on the site, as suggested by the commenter, would prevent effective enforcement of the Act. Every operator or permittee is responsible for the actions of its employees and its contractors and can take steps to assure that they obey the law. If this comment were accepted, companies could exempt themselves from responsibility for compliance by the simple expedient of issuing a memo, never intended to be enforced, instructing its employees or instructors to obey the law.

{15307}However, as some commenters pointed out, deliberate employee sabotage can occur, and this should be considered in determining the penalty. Accordingly, the Office has modified 845.13(b)(3)(iii) so that deliberate acts of sabotage, if proven, can be considered in calculating the points to be assigned for negligence.

One commenter asked that rapid compliance be defined to mean that the permittee/operator took extraordinary measures to abate or that abatement was achieved before the time set for abatement. The Office rejected this idea. Under the point system, up to 10 points are taken off if the operator complies rapidly. There are cases where inspectors are overly generous in setting the abatement period. In such a case the inspector is in effect "giving'' the operator a penalty reduction of as much as $1,000 or more when the operator was in fact doing nothing unusal to come into compliance. Therefore, it is important to include in the definition of rapid compliance the concept that the operator must do something extraordinary to earn the reduction in penalty.

In 845.13(b)(4), references to bad faith were deleted because, as discussed below, the mandatory $750/day minimum penalty for failure to abate is sufficient, and to give points for bad faith as well is punishing twice for the same office. Also, 845.13(b)(4) was amended to clarify that the Office may modify an assessment where, because of the length of the abatement period, it was not possible to consider "good faith.''

SECTION 845.14 Determination of amount of penalty.

Various comments were received concerning the size of the penalties provided for in the present system. One commenter argued that as long as it is more expensive to comply than to pay the fine, the permittee or operation will chose to pay the fine and continue to violate. This argument would have merit except that the Act provides very strong disincentives to this tactic: (1) revocation or suspension of the permit for pattern of violations; (2) cessation order for failure to abate; and (3) minimum $750/day fine for failure to abate. Also, a system that ties the civil penalty to the cost of compliance is very difficult to devise and administer and would be impractical given the volume of enforcement actions under the Act. For these reasons, the Office decided not to consider the cost of compliance in determining the civil penalty.

Many commenters asserted that the point system results in penalties that are too high, or that do not reflect the seriousness of the violations. The Office knows of no basis for this assertion. Indeed, it has been suggested to us that certain States may assess higher penalties for comparable violations. However the Office plans to evaluate the operation of the system and will modify it in the future if appropriate.

An assertion was also made that MSHA's penalties are one-quarter as high. The Office feels that the point system results in penalties which are appropriate for the violations involved. MSHA assesses penalties for different violations, and one cannot determine whether OSM's penalties are appropriate by comparing OSM's fines with MSHA's.

One commenter asserted that seriousness and good faith are not taken into consideration by the Office in assessing penalties. There is no basis for this. The commenter may be confused by the fact that the Act requires the assessment to be made within 30 days after issuance of the notice of violation or cessation order, even though the abatement period may extend beyond that time. Good faith cannot be considered until abatement has been accomplished. Where consideration of good faith is impractical because of the length of the abatement period, the regulations ( 843.13 (b)(4)(iii) of the permanent regulations and 723.13(e)(iii) of the intitial regulations) expressly provide for a recalculation. There have been numerous instances under the interim regulations in which an assessment has been modified to account for good faith after issuance of the assessment.

Another commenter, concerned with what he felt was the harshness of the Office's civil penalty assessment schedule, asked whether the Office could give the State Land Rehabilitation Advisory Board authority to assess penalties. It was not clear whether the commenter wanted to have the Board assess penalties under a State program or under programs enforced by OSM. If the latter, the comment cannot be accepted because the Act requires penalty assessment by the Secretary and it would not be lawful to delegate this authority to a State agency or to the Board suggested by the commenter without statutory authorization. The Office might be able to set up a committee to give nonbinding advice concerning penalties but has no present intention to do so.

With regard to a State program, the comment is, in effect, a premature request for a ruling on whether a certain arrangement will be approved as part of a State program. The Office prefers to consider such a question in connection with a review of the entire State submission.

Accordingly, the Office decided not to make any of the changes suggested by the commenters.

SECTION 845.15 Assessment of separate violations for each day.

Subsection (c) as proposed was transferred to subsection (a). Several commenters wanted the Office to omit this subsection, which provides that a minimum of two days be assessed for any 70-point violation existing for two days or longer. The commenters felt that this requirement was unjustified, arbitrary and excessive.

The Office believes, however, that this subsection should be retained as proposed. Section 518 of the Act provides that a daily penalty may be assessed for any continuing violation. This regulation is an exercise of that discretion. It is designed to ensure that major violations will incur stiffer penalties. A 70-point violation is extremely serious.

In another comment on the same subsection, a commenter felt that the history of previous violations should not be considered in connection with violations of greater than 70 points that continue for more than two days. The commenter felt that the daily assessment should be related solely to the particular violation and that it would be unfair to consider the record of the violator.

The Office has decided to retain the language as proposed. If the history points were not included, the 70-point cut-off would be rendered meaningless, since the total of all other possible points is less than 70. History points are based on recent conduct at the same surface coal mining operation, and indicate that the permittee/operator is aware of the Act, regulations and enforcement provisions. The permittee/operator who repeatedly operates in an unlawful manner obviously needs more prodding, hence the stiffer penalty. The 70-point threshold was established specifically so that history would be a contributing factor. Because the history of previous violations is such a valuable indicator, it would not make sense to eliminate it and to drop the cut-off to a lower point. Also 518(a) of the Act requires history to be taken into account in determining the amount of the penalty, which probably means it must be taken into account in 845.15(c).

{15308}Sections 845.15(b)(1) and (2) were amended to clarify and simplify the language concerning the mandatory day-by-day penalty pursuant to 518(h), where the obligation to abate has been suspended by the Office of Hearings and Appeals or a court pursuant to 525(c) or 526(c) of the Act.

Two commenters requested that 845.15(b) be modified back to the concept of the initial regulations: that the daily penalty for failure to abate be the amount assessed or $750, whichever is greater. The Office decided to retain 845.15(b) as proposed, which returns to the statutory language. Section 518(h) of the Act provides that the operator shall be assessed a civil penalty "of not less than $750'' for each day during which the failure to abate continues. This provides additional flexibility which the Office feels is valuable to prevent unjustifiably high penalties.

A new subsection (c) was added to clarify the manner in which both the mandatory $750/day penalty for failure to abate and the discretionary penalty for continuing violations will be assessed, and to provide for reassessment to take account of good faith compliance or other facts not available at the time the initial assessment was made. As in the case of good faith points, the mandatory $750/day penalty and the discretionary penalty for continuing violations cannot properly be finally assessed until after the violation is abated. The new subsection (c) provides for authority for reassessment.

SECTION 845.16 Waiver of use of formula to determine civil penalties.

One commenter requested clarification regarding to whom a request for a waiver should be made and under what circumstances. The Office believes that no clarification is necessary. The request must be made to the Director, and anyone may make it. The commenter pointed out that the ten-day limit is needlessly short. The Office agrees and has extended the time limit to fifteen days.

In a related comment, it was suggested that there be specific regulations explaining when the Director could waive the point system. The Office decided not to try to set more specific criteria for when the formula could be waived. While the point system generally works very well, under the initial program the Office has found that it can generate penalties that are too high or low under certain circumstances. It is impossible to foretell what situations these might be. Therefore, a waiver clause is needed, and there should be a criterion for a waiver to prevent unfair and inconsistent waivers. An unrestricted waiver is undesirable because it undercuts the entire point system approach and leaves the Office and the administrative law judges without guidance in assessing penalties.

The standard for waiver proposed in 845.16(a) was the same as that contained in the initial regulations. The Office has found that this standard is unworkable in practice and has replaced it with a more useful standard. Under the new standard, the point system will be waived only where, taking into account exceptional factors present in the particular case, the penalty is demonstrably unjust. The Office expects waivers to be rarely granted under this standard.

One commenter requested that the Office delete the requirement in 845.16(a) that prevents the Director from waiving the use of the formula to reduce the proposed assessment on the basis that the penalty could be used to abate the violations. The commenter suggested that this proposed sentence does not promote the purposes of the Act in that it is punitive and diverts capital otherwise available for abatement.

Congress established penalties as a tool with which to achieve the purposes of the Act. It authorized penalties in addition to an abatement requirement, as an incentive for surface coal mining operations to achieve and maintain compliance. The Office believes the clause in 845.16(a) is appropriate and did not accept the comment.

In another related comment, a commenter asked whether the Director is bound to consider the statutory criteria of 518(a) of the Act even though he has elected to waive the use of the formula set forth in 845.13. The commenter noted that 518(a) of the Act requires that "consideration shall be given'' to certain specific factors in determining the amount of the penalty assessment. The commenter believed that the statutory directive requires the Director to consider those factors despite his election to waive the use of the formula, and he urged that 845.16 be modified to make this clear. The Office agrees with this comment and has modified 845.16(b) accordingly.

SECTION 845.17 Procedures for assessment of civil penalties.

A new subsection (c) was added to clarify how modifications of assessments should be served.

SECTION 845.18 Procedures for assessment conference.

The entire 845.18 was reorganized and renumbered. Subsection (a) was modified to clarify that a conference can be held for a modification of an assessment (except a modification resulting from a conference). The last sentence of subsection (a) as proposed was deleted as redundant.

A suggestion was made that assessment conferences not be open to "any person'' who wished to attend, as 845.18(b)(4) provides. This comment was rejected because it would limit the right of citizens to participate in the conference. The Office is obligated under 102(i) of the Act to assure that "appropriate procedures are provided for the public participation in . . . enforcement of the regulations.''

The renumbered subsection (b)(4) was modified to provide that the approval of the Director or his designee is needed if the proposed penalty is raised, not only if it is lowered.

The renumbered subsection (d) provides that if a settlement agreement is signed, but then payment is not received, it may be rescinded by the Office, in which case the conference officer may proceed as if there had been no settlement and determine whether the penalty should be recalculated. This was a change from the proposed draft, which provided that the originally proposed penalty would be reinstated after rescission of a settlement agreement. The Office feels that it would be unfair to impose that penalty automatically if the Office believes it is actually too high or too low.

A new subsection (f) was added to provide that evidence of statements made or evidence produced at a conference shall not be introduced as evidence or to impeach a witness at a later formal review proceeding. The basis for this type of provision is discussed above with respect to 30 CFR 843.15 (informal public hearing).

SECTION 845.19 Request for a hearing.

Several commenters questioned whether appeal of the penalty assessment and payment of the penalty into escrow should be required before termination of the assessment conference. The proposed regulations required payment of the proposed penalty into escrow within thirty days after the proposed assessment was issued; if a conference was scheduled, the penalty hearing would be deferred pending completion of the conference. This was a modification from the initial program, which provides that the appeal and payment into escrow must occur within fifteen days after completion of the conference. The change was made to conform with the apparent requirements of 518(c) of the Act, which states that the assessment must be made within thirty days of the date of issuance of the notice of violation or cessative order, and that the penalty must be appealed and paid into escrow within thirty days after the assessment.

{15309}Based on our experience with assessments, we now believe 845.19 as proposed would cause hardship in a large number of cases. This is principally because many assessments are issued before the end of the abatement period (which may be as long as ninety days) and therefore must be proposed without considering the good faith criterion required to be considered under 518(a) of the Act.

The conference procedure insures the Office of correct assessments by taking into account good faith and any other relevant information. This prevents the underpayment or overpayment of the penalty into escrow, and provides a much greater measure of due process to the operator, who is assured of an opportunity to be heard and to obtain a correction of the penalty before having to put his money into escrow.

Further, the proposed 845.18 and 845.19 would have caused considerable administrative waste and inconvenience by forcing operators to request hearings even though a conference might resolve the dispute. Therefore, to assure that the conference procedure will be held after the abatement date and that the operator will be given an opportunity to tell his story and secure a correction of the penalty before paying it into escrow, 845.18 and .19 have been modified. They now provide that the conference shall be completed within sixty days after the abatement date, that the conference officer has thirty days to decide the issue, and that the appeal and payment into escrow must be made thirty days after completion of the conference.

SUBCHAPTER M -- TRAINING PROGRAMS FOR BLASTERS AND MEMBERS OF BLASTING CREW: CERTIFICATION PROGRAMS FOR BLASTERS, 30 CFR

The Office has determined that the proposed regulations in subchapter M should be substantially changed for the following reasons:

(1) to make affected portions consistent with the Uniform Guidelines for Employee Selection Procedures, 43 FR, 38290 (August 25, 1978);

(2) to provide an appeals system for decisions on suspension and revocation of certifications consistent with 43 CFR Part 4, and Section 526(a) of the Act;

(3) to limit office requirements for training, examination, and certification so that only those requirements necessary to implement the Act are imposed; and

(4) to eliminate duplication of effort and to apportion more appropriately responsibility in developing and administering training and certification programs for persons engaging in or directly responsible for blasting or use of explosives in surface coal mining operations.

Some of these changes are the result of public comment; others are not. Thus, in light of the substantive changes to this Subchapter, and in keeping with the spirit of Executive Order 12044 (March 23, 1978) to provide for receipt and consideration of public comment in promulgating final regulations, the Office has decided to publish a revised text of the entire Subchapter M as proposed regulations and to request public comment. States will be allowed six months after publication of final regulations for Subchapter M to submit programs for training, examining and certifying blasters.

Regulation Drafters

The permanent program regulations have been drafted by a large professional staff in the Office of Surface Mining and on detail from other Federal agencies. Preparation of the regulations has been under the responsibility of Walter Heine, Director, Office of Surface Mining. Paul Reeves, Deputy Director, supervised the staff which drafted the regulations. OSM Assistant Directors have been responsible for the preparation and content of the following individual Subchapters: _David R. Maneval, Assistant Director, Technical Services and Research_Subchapters G, J, and K

_Carl Close, Assistant Director, State and Federal Programs_Subchapters C, D, and F

_Richard Hall, Assistant Director, Inspection and Enforcement_Subchapters A and L

Date: March 5, 1979.

James A. Joseph,
Acting Secretary of the Interior.