FEDERAL REGISTER: 45 FR 76932 (November 20, 1980) DEPARTMENT OF THE INTERIOR AGENCY: Office of Surface Mining (OSM) 30 CFR Parts 783, 816, 817 Permanent Regulatory Program Modifications ACTION: Final rules. SUMMARY: Modifications of the permanent regulatory program are made to: (1) narrow the requirements for a geologic description of areas to be affected by surface operations or facilities to only those areas where overburden (the geologic materials overlying the coal seam) will be removed down to the level of a coal seam; (2) provide an exemption from the underdrain requirement for coal processing waste banks if the operator can demonstrate that an alternative system will ensure structural integrity of the waste bank and protect water quality; (3) delete the requirement that underground mining operations monitor ground water to determine the recharge capacity of reclaimed lands; and (4) allow underground mines having permit areas of 40 acres or less, in locations with an average annual precipitation of more than 26 inches, to measure revegetation success by using certain specified performance standards as alternatives to the use of reference areas. EFFECTIVE DATE: These rules become effective November 20, 1980. FOR FURTHER INFORMATION CONTACT: Dr. David R. Maneval, Assistant Director, Technical Services and Research, Office of Surface Mining, U.S. Department of the Interior, South Building, 1951 Constitution Avenue, N.W., Washington, D.C. 20240; (202) 343-4264. SUPPLEMENTARY INFORMATION: These regulations amend OSM's permanent program regulations published at 44 FR 15312 et seq. (March 13, 1979). The proposed regulations were published at 45 FR 25990 (April 16, 1980). The rationale for the rule changes, the disposition of all comments received, and the amended rules are set forth below. The basis and purpose statement for the existing regulations now being amended is found at 44 FR 14901-15309 (March 13, 1979). That basis and purpose statement is incorporated herein by reference insofar as it is consistent with these amendments. PUBLIC PARTICIPATION: A thirty-day public comment period began on April 16, 1980, and extended to May 16, 1980, at 5:00 p.m. All comments received were filed in the administrative record and considered in developing the final rules. A public hearing on the proposed rules was held in Washington, D.C. on May 6, 1980. A transcript of the hearing was placed in the administrative record and processed in the same manner as other written comments. STATE PROGRAMS: State programs must have provisions which are consistent with permanent program legislative rules in accordance with 30 CFR Part 732.However, at this time, numerous State programs are still under review by the Secretary and resubmission is pending for other State programs. The Secretary is also developing other new permanent program legislative rules at this time. Accordingly, the Secretary has determined that State programs need not contain provisions consistent with the new permanent program rules at this time. After review and final decision on all 24 State programs submitted before March 4, 1980, the States will be given the opportunity to amend their program as appropriate to make them consistent with the new rules. In the meantime, State programs must have provisions consistent with the Surface Mining Control and Reclamation Act and those Federal regulations promulgated March 13, 1979, which have not been suspended. 30 CFR 783.14(a)(1) -- GEOLOGY DESCRIPTION: Section 507(b)(14) and 508(a)(12) of the Act require each permit application to contain certain geologic information which will enable the regulatory authority to perform the assessments required by Section 507(b)(11), 508(a)(13) and 510(b)(3) of the Act. The information provided will enable the regulatory authority to determine whether the applicant can comply with the performance standards of Subchapter K (such as 816/817.41-57, 816/817.62-68, 816/817.101-105) which utilize information relating to hydrology and geology. The present regulation requires that applicants for an underground mine permit submit in the permit application a geology description "of the strata down to and including the stratum immediately below any coal seam to be mined * * * for those areas to be affected by surface operations or facilities * * *" This description must include a statement of the results of analyses of test borings or core samplings. The April 16, 1980, Federal Register notice proposed amending this Section to narrow the requirements for the geology description in a permit application for an underground mining operation to only those areas where overburden will be removed down to the level of the coal seam. For those areas where surface operations of facilities will not result in the removal of overburden down to the level of the coal seam to be mined, the geology description would be required only to the level of the stratum to be disturbed or affected. This charge would be consistent with the requirements of Section 516(a) of the Act to consider the distinct difference between surface mining and underground mining in adopting regulations. This change should provide sufficient flexibility for geological description for areas proposed to be affected by surface operations and facilities. Any sound and prudent engineering design always requires a geotechnical investigation which includes a geological description for areas of proposed surface operations and facilities. The information obtained is used to design structurally stable and environmentally acceptable operations and facilities. The extent or depth for which the information or description is required depends mainly on the design loads, height, weight, and other factors associated with the operations or the facilities proposed. This decision is generally made by the engineer in charge during the formulation of the subsurface or geotechnical investigation program. The method or rationale of determining how deep the geological or boring information should extend are described in most of the soil mechanics and foundation engineering or geotechnical engineering textbooks. (Terzahi and Peck, 1976, pp. 338-341) (NAVFAC DM-7, p. 7-2-12.) If, for instance, a haul road is to be constructed by making a cut through a hill, then depending upon the class of road or type of traffic to be served, 4 to 10 foot below the road base may be considered to be the affected depth and a geological description to that depth is needed. If however, a haul road is to be constructed with an embankment, then depending upon the size and location of the embankment, the depth to which the geological information is needed may extend to a considerable depth below any undesirable material which may affect the stability of the roadway embankment. The word "disturbed" in Sec. 783.14(a) means the depth to which the cut will be made for a road, or the depth of the cut which is needed to build a relatively level area for surface facilities such as a coal processing plant or loadout area. The word "affected"means the depth below the surface facilities which will be affected by the proposed operations or facilities, and which may impact the structural stability and environmental condition of the proposed operations or facilities. Depending upon the type of the proposed operations and facilities and subsurface conditions, the depth could vary from several feet for a loadout area or access road to more than a hundred feet for construction of a large structure such as a big coal storage silo or processing plant. This is especially true when a facility is to be constructed over an extensive underground mined out area or over poor subsurface material such that a proposed structure may induce subsidence of the surface and consequently threaten the integrity of the structure and its surrounding area. The proposed rule is flexible enough so that it can be applied on site by site basis for each proposed operation or facility. {76933} This change does not affect specific requirements in other sections of the regulations which call for geotechnical investigation for significant surface operations or facilities although overburden will not be removed down to the level of the coal seam. For example, 30 CFR 784.16(e) requires that results of geotechnical investigations for coal processing waste dams and embankments be included in the reclamation plan. Similarly, 30 CFR 784.24(b) requires a geotechnical analysis for alternative specifications for steep cut slopes for transportation facilities. One commenter asked for clarification of the affected area in connection with an underground shaft mine, where the surface disturbance is superficial and would relate only to the installation of loadout, preparation, and transporting facilities located several hundred feet above the coal seam being used. The change addresses only areas where removal of overburden down to the level of the coal seam is not contemplated. Those areas overlying the coal seams to be extracted, as was inquired by the commenter, are covered by 30 CFR 783.14(a)(2) which is not being amended. The same commenter also asked for clarification of the area where facilities are to be located above or below an area where coal seam is outcropped and a mine entry exists. If the facilities are to be located above the mine entry where the coal is to be mined, then it is governed by 30 CFR 783.14(a)(2), which is not being amended. However, if the facilities are to be constructed below the mine entry where no coal is to be extracted, then the extent of the geology description is dictated by the type and size of the proposed facilities and should be obvious from the preceding discussions. Another commenter requested that the following language in the proposed rule be deleted: "Geology of all the strata to be disturbed or affected by surface operations or facilities shall be described. The description shall include, at a minimum, the lithologic characteristics and physical and chemical properties of each stratum." This commenter's justification is that the sworn affidavit submitted to the District Court on December 19, 1979, by the Director of OSM did not include this language. As explained in the affidavit, the final language of the amendments cannot be known until notice and an opportunity for comment have been provided. Besides, the proposed rule was written to amplify the intent of the language contained in the sworn affidavit which was submitted earlier. The justification to leave this language in the final rule should also be obvious from the preceding discussions. Consequently, the suggestion was not accepted. 30 CFR 816.83(a)/817.83(a) -- SUBDRAINAGE SYSTEM FOR COAL PROCESSING WASTE BANKS: The present regulation addresses required water control measures to ensure the structural integrity of coal processing waste banks and to prevent degradation of water quality. The Secretary believes that properly constructed subdrainage systems are essential to the stability and environmental soundness of a coal processing waste bank. Consequently, the Secretary chose to require adequately designed subdrainage systems to control the drainage beneath waste banks. Inadequate consideration of water control measures can cause structural failure of a waste embankment. Increased water levels within a waste bank will adversely affect the physical properties of the waste materials. Water movement through waste piles may also create serious water quality problems such as acid drainage. After careful review of the regulations, preamble and technical literature cited in support of the permanent regulations, the Secretary has concluded that a subdrainage system, although necessary as a general rule, may not be necessary in all cases. Accordingly, the revision to the regulation provides an exemption from the subdrainage requirement if the operator can demonstrate to the regulatory authority that a subdrainage system is not required to insure structural integrity and water quality. The operator granted an exemption is still responsible for constructing coal waste banks to assure structural integrity as required by 30 CFR 816.85 and 817.85, and to protect water quality and the public health and safety as required by 30 CFR 816.81-816.83 and 817.81-817.83. Comments received on 30 CFR 816.83(a)/817.83(a) were supportive of the proposed amendment and indicated that the revisions were acceptable as published in the April 16, 1980, Federal Register. 30 CFR 817.52(a)(1) -- MONITORING RECHARGE CAPACITY: The amended regulation eliminates the requirement for underground mine operators to monitor the effects of underground mining activities on the recharge capacity of reclaimed lands. The requirement to monitor the effects of underground mining on ground water would be retained. In promulgating the permanent regulations, the Secretary did not believe it appropriate to require a performance standard concerning restoration of recharge capacity of aquifers with respect to underground mining. This decision was reflected in the preamble to the proposed regulations (43 FR 41780, September 18, 1978) which stated that because the structural integrity of water-bearing formations should not be significantly affected by underground mining, the recharge capacity of such formations should be maintained without any special precautions. Accordingly, the Secretary believes there is no justification in requiring monitoring of recharge capacity for underground mines where there is no related performance standard. The rule change retains the requirement to monitor the effects of underground mining on ground water. Protection of the ground water resource and the overall hydrologic balance is further assured through the stringent monitoring of aquifers, overburden and spoil required by 30 CFR 817.52(a)(2). All comments received on 30 CFR 817.52(a)(1) supported the proposed revision as published in the April 16, 1980, Federal Register. 30 CFR 817.116(d) -- REVEGETATION SUCCESS: Authority for this regulation is contained in Sections 102, 201, 501, 503, 504, 507, 508, 510 and 516 of Pub. L. 95-87. This subsection provides for the use of a fixed standard when determining success of revegetation on areas disturbed by surface coal mining operations of underground coal mines. These fixed standards establish minimum criteria for determining success of ground cover and stocking of woody plants (commercial and noncommercial tree species and shrubs and half-shrubs) when the total disturbed area of the permit area is 40 acres or less in size and the disturbed area receives more than 26 inches of average annual precipitation. Further, the regulatory authority must approve the use of this standard. {76934} Section 515(b)(2) of Pub. L. 95-87 "requires the operations as a minimum to restore the land affected to a condition capable of supporting the uses which it was capable of supporting prior to any mining, or to higher or better uses * * *" The stocking of woody plants is to ensure establishment of adequate numbers of live woody plants to control erosion, satisfy the post-mining land use and demonstrate premined capability. The Secretary believes that it is reasonable to expect the regulatory authority to require, as a minimum, woody plant stockings in accordance with the recommended stocking for a similar land use of an unminded site. The minimum stocking standards of these regulations were adopted to recognize variances in proven stocking rates for woody species. Because of the variability in premined vegetative capability of sites, in plant species space requirements, and in spacing for tree and shrub seedlings (as determined by the intended land use), the regulatory authority should and will be expected to use accepted local and regional reforestation practices when establishing a minimum stocking rate for sites that are to be mined within the State. These local and regional reforestation practices are to be supportive of the minimum woody plant stocking rate that is adopted by the regulatory authority. Hence, the stocking rate adopted by the regulatory authority is to be based on local or regional reforestation practices including planting patterns, that are recommended for a site with similar premined characteristics (soils, topography, slope, etc.) and that has not been disturbed by mining. In addition, this subsection requires that the operator maintain a minimum of 70% ground cover for five consecutive years on areas planted to herbaceous species as well as areas planted to herbaceous and wood species. The basis for the ground cover requirement is discussed in column 2, p. 15240, Federal Register, Vol. 44, No. 50, March 13, 1979. As stated above, minimum stocking standards, 600 woody plants per acre on steep slopes and 400 woody plants on sites not classified as steep slope sites, were adopted to recognize variances in regional stocking of woody species. As previously stated, the regulatory authority will be expected to use local and regional reforestation practices when making a judgment on the normality or fullness of stocking that will be considered adequate to demonstrate pre-mined capability. The operator will be required to meet the ground cover and approved stocking standard for a minimum of 5 full consecutive years. One commenter supported the fixed standard as proposed and stated that the provisions were consistent with the intent of the Act. Two commenter suggested that the phrase "permit area" includes all affected areas, which, in turn, includes all land overlying underground workings. It was contended that very few underground mines will cover less than 40 acres when land overlying underground workings is included since, operationally, there are often large distances between an entry portal and the actual underground works, and that there are often significant distances between the mine works and refuse disposal areas. The commenter argued that the surface disturbance is the relevant factor in this regulation since underground mines will not be affecting the surface of the entire permit area when computing an acreage limit for imposition of use of a reference area. Hence, to require revegetation of the entire permit area would presume that the operator will disturb and subsequently revegetate the entire surface acreage of the permit area when in practice only a small portion of the permit area may be disturbed and require revegetation. The Secretary has accepted the commenter' rationale and the final regulation has been changed to provide for the use of the standard when the surface effects of an underground mining operation, disturbed area, does not exceed 40 acres in size. This change was necessary to make the 40 acre exemption for underground mines consistent with the exemption for surface mines. OTHER INFORMATION: Pursuant to 43 CFR Part 14, the Department of the Interior has determined that the amended rules are not significant and do not require a regulatory analysis. The "Determination of Significance" document prepared by OSM is available for inspection in the Administrative Record for this rulemaking. OSM has prepared an environmental assessment on these amendments. That assessment resulted in a finding that the rules will not have a significant impact on the quality of the human environment so as to require the preparation of an environmental impact statement. The environmental assessment is available for inspection in the Administrative Record for this rulemaking. The principal authors of these rules are: Arlo Dalrymple and John Mosesso, Division of Research and C. Y. Chen and Ray Aufmuth, Division of Technical Services. Dated: November 13, 1980. Joan M. Davenport, Assistant Secretary, Energy and Minerals. Final Regulations The following regulations in 30 CFR Chapter VII are amended as listed below: PART 783 -- UNDERGROUND MINING PERMIT APPLICATIONS -- MINIMUM REQUIREMENTS FOR INFORMATION ON ENVIRONMENTAL RESOURCES 1. Revise paragraph (a)(1) of Sec. 783.14. Sec. 783.14 Geology description. (a) * * * (1) Geology of all the strata to be disturbed or affected by surface operations or facilities shall be described. The description shall include, at a minimum, the lithologic characteristics and physical and chemical properties of each stratum. For those areas to be affected by surface operations or facilities where removal of the overburden down to be level of the coal seam will occur, the geology of the strata down to an including the stratum immediately below any coal seam to be mined shall be described, including the following data resulting from analyses of test borings, core samplings, or outcrop samples -- PART 816 -- PERMANENT PROGRAM PERFORMANCE STANDARDS -- SURFACE MINING ACTIVITIES 2. Revise the introductory text of paragraph (a) of Sec. 816.83. Sec. 816.83 Coal processing waste banks: Water control measures. (a) Unless the operator satisfactorily demonstrates to the regulatory authority that a subdrainage system is not required to ensure the structural integrity of a coal processing waste bank and the protection of the surface and ground water quality in the immediate vicinity of the disposal area, a properly designed subdrainage system shall be provided, which shall {76935} PART 817 -- PERMANENT PROGRAM PERFORMANCE STANDARDS -- UNDERGROUND MINING ACTIVITIES Sec. 817.52 [Amended]. 3. The following language in Sec. 817.52(a)(1) is deleted: "on the recharge capacity of reclaimed lands and." 4. Revise the introductory text of paragraph (a) of Sec. 817.83. Sec. 817.83 Coal processing waste banks: Water control measures. (a) Unless the operator satisfactorily demonstrates to the regulatory authority that a subdrainage system is not required to ensure the structural integrity of a coal processing waste bank and the protection of the surface and ground water quality in the immediate vicinity of the disposal area, a properly designed subdrainage system shall be provided, which shall -- 5. Add a new paragraph (d) to Sec. 817.116. Sec. 817.116 Revegetation: Standards for success. (d) In locations with an average annual precipitation of more than 26 inches, where land to be affected by surface facilities is 40 acres or less in size, within a permit area, the following performance standards, if approved by the regulatory authority, may be used instead of reference areas to measure success of revegetation on sites that are disturbed: (1) Areas planted only in herbaceous species shall sustain a vegetative ground cover of 70% for 5 full consecutive years; (2) Areas planted with a mixture of herbaceous and woody species shall sustain a herbaceous vegetative ground cover of 70% for 5 full consecutive years and 400 woody plants per acre after 5 years; on steep slopes, the minimum number of woody plants shall be 600 per acre; (3) For purposes of this Section, herbaceous species means grasses, legumes, and nonleguminous forbes; woody plants means woody shrubs, trees and vines; and ground cover means the area of ground covered by the combined aerial parts of vegetation and the litter that is produced naturally onsite, expressed as a percentage of the total area of measurement. These standards shall be met for a minimum of 5 full consecutive years. [FR Doc. 80-36229 Filed 11-19-80; 8/45 am] BILLING CODE 4310-05-M