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OAR Box 1837 

Prepped by Keeia Richards 

Document Number: 

188) IV-H-5 

Docket Number: 

A-84-33 

Printed 11/14/2008 3:48:12 PM Sheet 188 of 238 
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€290 Fedeiai Register / Vol. 53, No. 216 / Tuesday, November 8, 1988 / Rules and Regulatlona 

DEPARTMENT OF THE INTERIOR 

Office of Surface Mining Reclamation 

and Enforcement 

30 CFR Parte 701,780,784,815,816, 

and 817 

Surface Coal Mining and Reclamation 

Operations; Permanent Regulatory 

Program; Reclamation and Operation 

Plan; Perfonnance Standards; Roads 

AGENCY: Office of Surface Mining 

Reclamation and Enforcement, Interior. 

ACTION: Final rule. 

SUMMARY: The Office of Surface Mining 

Reclamation and Enforcement (OSMRE) 

of the Department of the Interior (DOI) 

is amending its rules governing roads at 

' surface and underground mining 

operations and coal exploration 

operations. The provisions for roads are 

to replace rules that previously were 

suspended. These rules define a road, 

establish a road classification system, 

and set forth performance standards 

that allow regulatory authorities to 

approve designs tailored to local needs. 

Also, revised information requirements 

for the reclamation and operations plan 

reflect changes in the performance 

standards for roads. 

EFFECTIVE DATE December 8.1988. 

FOR FURTHER INFORMATION CONTACT: 

Robert Wiles, P.E.. Office of Surface 

Mining Reclamation and Enforcement 

U.S. Department of the Interior, 1951 

Constitution Avenue, NW., Washington, 

DC 20240; Telephone (202) 343-1502. 

SUPPLEMENTARY INFORMATION: 

I. Background 

n. Discussion of Final Rule and Comments 

DI. Procedural Matters 

I. Background 

Section 701(28)(B) of the Surface 

Mining Control and Reclamation Act 

(the Act), 30 U.S.C. 1201 et seq., defines 

"surface coal mining operations" to 

include roads constructed, improved or 

used for access to the mine site and for 

haulage. The Act also establishes 

specific environmental protection 

performance standards governing roads 

used for access into and across the mine 

site during surface coal mining and 

reclamation operations in section 515(b) 

(17) and (18). Section 515(b)(17) provides 

that all surface coal mining and 

reclamation operations shall "insure 

that the construction, maintenance, and 

postmining conditions of access roads 

into and across the site of operations 

will control or prevent erosion and 

siltation, pollution of water, damage to 

fish or wildlife or their habitat, or public 

or private property." Section 515(b)(18) 

provides that all operations shall 

"refrain from the construction of roads 

or other access ways up a stream bed or 

drainage channel or in such proximity to 

such channel so as to seriously alter the 

normal flow of water." Section 

516(b)(10) of the Act imposes these same 

requirements on roads associated with 

underground mines with such 

modifications as are necessary to 

accommodate the distinct differences 

between surface and underground 

mining. 

The permanent regulatory program 

promulgated on March 13,1979, 

contained expansive and detailed 

provisions pertaining to road 

construction, maintenance and 

postmining conditions. The rule at 30 

CFR 701.5 defined roads for surface 

mining operations and established a 

three-tiered road classification system 

(44 FR 15320, March 13,1979). Specific 

provisions for each classification were 

established at 30 CFR 816.150-176 (44 FR 

15416-15421). At the same time, similar 

requirements for underground mines 

were established at 30 CFR 817.150-

817.178 (44 FR 15442-15447). 

The permanent program rules were 

challenged in a suit filed with the U.S. 

District Court for die District of 

Columbia. The court remanded the rules 

for further consideration because the 

Secretary had not given adequate notice 

that he was considering a classification 

system, In Re: Permanent Surface 

Mining Regulation Litigation, No. 79-

1144, slip op. at 32-36 (D.D.C. May 16. 

1980). As a result of the court decision, 

OSMRE suspended its permanent 

program rules for roads (45 FR 51547, 

August 4,1980). 

New rules substantially different from 

the remanded and suspended 1979 rules 

were proposed on January 4,1982 (47 FR 

56) and April 16.1982 (47 FR 16592) and 

were finalized in a rule published May 

16,1983 (48 FR 22110). The 1983 rules, 

although constituting an extensive 

expansion of the statutory performance 

standards, gave regulatory authorities 

greater flexibility as to the details of 

road design than did the remanded and 

suspended 1979 rules. Upon issuance, 

die 1983 rules were challenged in die 

U.S. District Court for die District of 

Columbia. In response to die challenge, 

the court remanded § 816.150(a) (In Re: 

Permanent Surface Mining Regulation 

Litigation II, No. 79-1144, slip op. at 24-

28 (D.D.C. Oct. 1.1984), hereafter Round 

yll). The court held that OSMRE, in 

promulgating die classification system 

in 30 CFR 816.150(a), violated the 

Administrative Procedure Act (APA), 5 

U.S.C. 553, by again not providing 

Subsequendy, in an amended order 

filed December 10,1984, the court 

remanded all of the rules governing 

roads which were dependent upon the 

road classification system. OSMRE then 

suspended those rules as well as the 

definition of road at § 701.5 (50 FR 7278, 

February 21,1985). The definition was 

suspended to give OSMRE an 

opportunity to reconsider all the 

provisions in the rules affecting die 

performance standards for roads. 

OSMRE proposed new road rules on 

November 3,1987 (52 FR 42258) that 

were quite similar to die remanded and 

suspended 1983 rules. Public hearings 

were scheduled for January 5,1988, in 

Washington, DC; Denver, CO; and 

Knoxville, TN. Since no one requested 

to testify at diese hearings, none were 

held. The comment period closed on 

January 12,1988. OSMRE received 152 

individual comments from 23 sources: 

Ten industry associations, eight State 

regulatory authorities, two public 

interest groups, and three Federal 

agencies. OSMRE also received 

comments from die Environmental 

Protection Agency (EPA) after die 

comment period had closed. 

The rules adopted today replace die 

rules suspended in 1985 (50 FR 7278, 

February 21,1985). The minor changes 

from die proposed rule are identified in 

the following discussion of the final rule. 

OSMRE believes, based on analysis of 

the issues involved, die legislative 

history of die Act and the 

administrative record of diis rulemaking, 

including comments received, diat this 

final rule is a reasonable interpretation 

and expansion of die provisions of 

sections 515(b) (17) and (18) of the Act. 

OSMRE has not identified any 

differences between roads for surface 

and underground mines diat would 

appear to necessitate different 

regulatory provisions under this 

rulemaking. Therefore, the final 

permitting rule applicable to roads for 

surface mining activities at 30 CFR 

780.37 and the final rule for underground 

mining activities at 30 CFR 784.24 are 

identical. Similarly, the final 

performance standards for surface 

mining activities at 30 CFR 816.150 and 

818.151 are identical to the performance 

standards for underground mining 

activities at 30 CFR 817.150 and 817.151 

respectively. The final permitting rule 

applicable to support facilities for 

surface mining activities at 30 CFR 

780.38 and the final rule applicable to 

such facilities for underground mining 

activities at § 784.30 are also identical. 

The discussion of the revisions to 30 

adequate notice" and opportunity.,toAJ ccQE&780.37, 780.38,818.150. and 818.151 

comment (Slip op. at 28). ^^rlv. P^° should be understood to apply also to 

JPH \3 \?$ 

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Federal Register / Vol. 53, No. 216 / Tuesday, November 8V 1988 /Rules- and Regtilatl ona 45191 

die revisions to 30 CFR 784.24, 784.30, 

817.150, and 817.151. respectively. 

(I. Discussion of Final Rule and 

Comments 

This portion of the preamble consists 

of a description of die rules adopted, 

changes to the proposal, comments 

received, and OSMRE's response to 

comments. 

.4. General Comments 

In addition to receiving comments on 

specific provisions of die November 3, 

1987, proposed rules, OSMRE received 

several general comments. Two 

commenters requested time extensions 

of 30 days to allow adequate time to 

evaluate the proposed regulations. 

OSMRE did not accede to die time 

extension requests; however, OSMRE 

did give full consideration to all 

comments received on die proposed rule 

regardless of whether die comments 

were timely or late. The proposed rule 

allowed seventy days for die submission 

of written comments. OSMRE believes 

mat this amount of time strikes a 

balance between die needs of reviewers 

and die agency's responsibility to 

implement the Act expeditiously dirough 

regulations; 

One commenter stated diat the 

proposed regidations do not provide 

consistent guidance to regulatory 

authorities, or establish minimum 

national standards for construction, 

maintenance, or reclamation of roads. 

The commenter suggested that die 

proposed regulations be withdrawn, and 

noted that OSMRE has a mandatory 

obligation to include standards in the 

regulations, and that failure to provide 

these standards is a violation of the Act. 

The commenter stated that Congress 

enacted sections 515(b) (10), (17), and 

(18) with the intent to set "appropriate 

limits" for road construction, 

maintenance, and reclamation. The 

commenter also stated that die 1979 

regulations implemented this 

congressional intent to provide 

minimum standards, but that adequate 

specific requirements no longer exist in 

the proposed regulations. The 

commenter argued further that, under 

these regulations. Federal and State 

agencies, particularly States whose 

regulations can be "no more stringent 

than" the Federal program will be 

unable to set meaningful standards. The 

commenter also suggested diat the 

proposed regulations be withdrawn 

pending the outcome of current litigation 

in the U.S. Court of Appeals for the 

District of Columbia Circuit where the 

issue of requiring minimum national 

standards was under consideration. 

OSMRE disagrees. Sections 515(b)(17) 

and (18) of die Act establish statutory 

performance standards for roads. In its 

January 29,1988, opinion, the Courts of 

Appeals for die District of Columbia 

Circuit concurred with tiifr Secretary of 

Lhe Interior diat die Act does not 

automatically and inevitably require 

him to "flesh out" statutory performance 

standards except in limited cases for 

which such a requirement is clearly 

established, such as sections 515(b)(13), 

516(b)(5) and 517(a) of the Act [NWF v. 

Hodel, 839 F.2nd 694, 734 (DC Cir.. 1988), 

hereafter NWF v. Hodel]. The court 

went on to say, "The Secretary is to 

exercise his informed discretion in 

deciding what other statutory 

performance standards bear elucidation 

or elaboration. In short, we read the Act 

* * * to afford the Secretary discretion, 

absent an express statutory instruction 

to regulate, to decide whether fleshing 

out is appropriate in light of other 

concerns. Chief among these concerns is 

a need to accommodate widely varying 

local conditions that will not admit of a 

single nationwide rule." (id. p. 735) 

Additional material in support of the 

legal sufficiency of the regulatory 

approach taken in diese rules appears in 

the Secretary's March 5,1984 district 

court brief filed in Round II at p. 160-

166. 

This discussion concerned die 

Secretary's elimination in 1983 of 

minimum national environmental 

standards contained in the 1979 

regulations involving: (1) The 

contemporaneous reclamation of mined 

lands, (2) die design of earth "terraces" 

on restored land, and (3) the exemption 

from the "approximate original contour" 

requirement of lands featuring unusually 

thick or thin overburden. The court went 

on to say, "Under [Motor Vehicle Mfrs. 

Ass'n v. State Farm Mut. Auto. Ins. Co., 

463 U.S. 29,43 (1983)] the agency must 

examine the relevant data and articulate 

a satisfactory explanation for the 

revised regulation if it is to gain judicial 

approbation" (id.). The Secretary, 

dierefore, is required to articulate a 

satisfactory explanation for the final 

rule and to discuss the specific 

comments received on the proposed 

rule. However, the Secretary is not 

required to justify changes from either 

the 1979 rule or the 1983 rule since both 

were invalidated upon appeal. 

OSMRE believes this rulemaking is 

consistent widi the above decision of 

the Court of Appeals for the District of 

Columbia Circuit and that more specific 

minimum national standards for 

construction, maintenance, or 

reclamation of roads are not necessary. 

The rules adopted today constitute a 

considerable expansion and fleshing out 

of die statutory requirements of section 

515(b)(17) and (18) of the Act. However, 

in accordance with section 101(f) of the 

Act, the rules take into account regional, 

physical, biological and climatic 

diversity among die States by providing 

State regulatory authorities with the 

flexibility to incorporate regional and 

local considerations into their programs, 

One commenter noted that the 

construction of roads and support 

facilities associated with coal mining 

and exploration could have serious 

adverse effects on historic properties. 

The commenter indicated that, under 

these rules, regulatory authorities would 

not adequately identify adverse effects 

for consideration during permit 

planning, review, and approval in order 

to avoid or mitigate such effects. The 

commenter suggested that a new section 

be inserted that would require a 

description of the methods to be used to 

identify properties included in or eligible 

to be in die National Register of Historic 

Places, and the efforts to be taken to 

prevent or control damage to such 

properties. 

OSMRE's regulations at 30 CFR Parts 

731, 732. 761. 772. 773, 779, 780, 783. and 

784 (52 FR 4244-4263. February 10,1987) 

include adequate provisions for the 

identification of historic properties' and 

consideration of the effects of all surface 

mining activities on such properties, 

including die design and construction of 

roads. To include these provisions in die 

performance standards for roads, or for 

any other specific activity related to 

surface mining, would be redundant. 

Two commenters were concerned 

that, if the roads regulations were 

finalized, diey would be applied 

retroactively. They suggested that 

retroactive compliance would be 

expensive and actually could increase 

environmental harm due to 

reconstruction of existing roads. The 

commenters also suggested diat OSMRE 

clarify that the regulations apply 

prospectively to operators requesting a 

permit as of the date diat a State adopts 

these final rules. 

OSMRE anticipates that diese rules 

will be applied prospectively by a State 

after a State has amended its regulatory 

program to be no less effective than 

these regulations. That is, a State would 

require proposed roads included in a 

permit or permit revision application to 

comply with die roads regulations 

adopted by die State pursuant to these 

Federal regulations. In accordance with 

30 CFR 701.11(e), existing roads that 

meet the performance standards, but not 

the design requirements, may be 

exempted from meeting design 
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rm8& g|'tr|$gi8tiag. / Vol. 53>-vNp. 218. /.Tuesday,. November- 8, 1988 / Rules and Regulations 

If > 

requirements by die regulatory 

authority. Therefore, OSMRE does not 

anticipate diat regulatory authorities 

will require changes in existing roads if 

diey meet environmental performance 

standards. Because proposed but not 

constructed roads included in permits 

approved prior to a State's adoption of 

rules pursuant to these regulations 

would comply with existing 

performance standards and design 

requirements, OSMRE believes diat 

extensive reworking of plans would not 

be required. 

One commenter contended diat the 

proposed regulations do nothing for 

environmental protection other tiian to 

restate the existing performance 

standards contained within the 

regulatory program. The commenter 

went on to argue that the prpposed 

regulations create ah excessive amount 

of unnecessary paperwork for industry 

and the rgulatory audiorities. The 

commenter recommended that the 

proposed regulations should hot become 

final. 

OSMRE disagrees because, even 

though general performance standards 

have already been established in 30 CFR 

Subchapter K—Permanent Program 

Performance Standards, there is'a 

significant need to have sections ' 

specific to die design, construction, 

reconstruction, improvement, and 

maintenance of roads. Roads can have a 

significant environmental impact if they 

are not properly managed and, with this 

in mind, OSMRE beUeves diat die 

requirements outlined in these rules 

justify die documentation required; 

B. Section 701.5 Definitions: Road 

The definition otroad in final § 701.5 

is identical to that proposed on 

November 3,1987 (52 FR 42265)t except 

that the exemption of "pioneer roads" 

contained in die proposal has been 

deleted. The rule defines road to mean a 

surface right-of-way for purposes of 

travel by land vehicles, including mining 

equipment, used in surface coal mining 

and reclamation operations or coal 

exploration. The term road encompasses 

die entire area and structures within a 

surface right-of-way that is constructed, 

used, reconstructed, improved, or 

maintained for use in surface coal 

mining and reclamation operations or 

coal exploration; including use by coal 

hauling vehicles leading to transfer, 

processing, or storage areas. The term 

specifically excludes ramps and routes 

of travel within the immediate mining 

area (discussed below) and within 

excess spoil or coal mine waste disposal 

areas. 

The proposed rule excluded pioneer 

roads, defined in the proposal as 

"temporary routes used for constructing 

access or haul roads," from the 

definition of road. The preamble to die 

proposed rule explained that pioneer 

roads provide preliminary access for the 

construction of permanent access and 

haul roads or equipment roads and not 

for mining purposes and diat they are 

eitiier replaced by a primary or ancillary 

road or reclaimed once diey have 

fulfilled tiieir purpose. The final rule 

does not retain the exclusion. OSMRE 

has reviewed the issue and believes that 

pioneer roads are not a separate, 

discrete category of roads, but are 

merely part of die process of 

constructing primary and ancillary 

roads. Therefore, pioneer roads are 

subject to the performance standards of 

diis rule applicable to the construction 

process but not to those diat specify 

standards applicable to completed 

primary or ancillary roads. 

The term "immediate mining area" 

refers to the area where coal is being 

removed from the seam and to other 

areas that should not be subject to the. 

performance standards for roads 

because they are subject to frequent 

surface changes. These other areas 

include areas where topsoil and 

overburden are being moved and areas 

undergoing active reclamation. OSMRE 

intends die term "immediate mining 

area" to refer to such areas of frequent 

surface change. Many areas in a mining 

operation contain routes of travel diat 

are moved every few days as the mining 

advances during coal removal and as 

the operator works in coal waste 

disposal and spoil areas. These routes 

have a short life and are not included in 

the definition of road or subject to die 

road performance standards, but would 

be subject to the other performance 

standards applicable to all surface coal 

mining and recalamation operations. 

Temporary routes within spoil or coal 

mine waste disposal areas are excluded 

from the definition of road according to 

an agreement by the Secretary in Round 

//(slip op. at footnote 14). The industry 

plaintiffs contended and OSMRE agreed 

that it was not reasonable to require 

roads within coal spoil and refuse 

disposal areas to be surfaced with 

nonacid- or nontoxic-forming 

substances, since diese areas often 

contain acid- and toxic-forming 

materials. In addition, all of die surface 

drainage from these areas is controlled 

by siltation structures and treatment 

facilities, where necessary, to mitigate 

any potential adverse environmental 

effects. 

One commenter suggested revisions to 

the definitions of affected area and 

permit area in 30 CFR 701.5. The 

commenter wanted existing or proposed 

roads under the jurisdiction of a Federal 

land management agency to be excluded 

from diese definitions. 

The definitions oi affected area and 

permit area are not part of this 

rulemaking. OSMRE believes that a 

revision to either of these definitions is 

not necessary. The definition of road is 

clear on its own terms as to which roads 

are included. For this reason, a 

reference to affected area has not been 

included. On the specific concern 

relative to Federal lands roads, neither 

this definition nor the definition of 

affected area as partially suspended (51 

FR 41952, November 20,1986) is 

intended to expand or limit the 

jurisdictional reach of the definition of 

"surface coal mining operations" 

contained in section 701(28)(B) of the 

Act, relative to roads. That jurisdictional 

reach must be determined on a case-bycase basis by the regulatory authority. 

One commenter suggested that 

OSMRE retain the "within the affected 

area" phrase in the definition of road to 

ensure that jurisdiction over existing 

roads under the control of a Federal 

land management agency is not 

transferred to the Secretary or to a State 

regulatory authority. 

As noted above, OSMRE does not 

agree that adding the phrase "within the 

affected area" will affect jurisdiction 

over existing roads. 

One commenter requested that 

OSMRE restate its position widi respect 

to the definition of affected area and 

public roads. Another commenter 

suggested that the definition of road be 

modified to specifically exclude "public 

roads." The commenter argued that 

roads maintained by public funds and 

located on properties dedicated to 

public entities are not roads as defined 

by § 701.5 and, even if the permittee so 

desired, could not be permitted since 

ownership is not controlled. 

The definition of affected area is not a 

part of this rulemaking, nor is there any 

reference to affected area in the 

definition otroad. Similarly, there was 

no reference to roads in the 1979 

definition of affected area (44 FR 15317, 

March 13,1979). The definition of 

affected area was modified in 1983 as it 

related to public roads in order to 

address the practice in some states of 

operators constructing new access roads 

and then deeding them to a public entity 

in order to keep the operation less than 

two acres in area and thus avoid 

applicability of the Act for the entire 

mining operation (48 FR 14814, April 5. 

1983). The litigation on this definition [tn 

Re: Permanent Surface Mining 

Regulation Litigation, No. 79-1144 

(D.D.C. 1980)) also concerned the two-
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•i; ggatewil- Efognoteir I Vol. 53-, No.Jtto^Tuegday;/^ ^. g s 

acre exemption, and die definition of 

affected area was suspended insofar as 

it might limit jurisdiction over roads 

covered by die definition of "surface 

coal mining operations," (51 FR 41952, 

November 20,1988) The two-acre 

exemption has sine© been eliminated by 

Congress. Since die definition of 

affected area as partially suspended no 

longer provides additional guidance as 

to which roads are included in the 

definition of "surface coal mining 

operations," no reference to affected 

area is included in the definition of 

road. 

State laws vary widely in their road 

classification systems.. OSMRE is 

concerned tiiat roads constructed to 

serve mining, operations not avoid-• 

compliance widi the performance 

standards by being deeded to public 

entities. However, it is not OSMRE's 

intention automatically to extend 

jurisdiction over roads into die existing 

public road network. Jurisdiction under 

the Act and applicability of the 

performance standards are best -

determined on a case-by-case basis by 

the regulatory authority: For this reason, 

OSMRE did not accept the commenter's 

suggestion, that "public-roads" be 

specifically excluded from the. definition 

of road. .'...,-' 

Several commenters were concerned 

about die.term ''immediate mining area" 

and expressed viewsconceming which 

roads within die mining area should be 

excluded from die definition, of road. 

One noted diat roads leading U> transfer, 

processing,, or storage areas would be 

subject to die design and performance 

standards of §780.37, yet routes within 

the immediate mining area are not 

considered roads under this definition. 

This commenter was unsure how 

OSMRE defines "immediate mining 

area" and argued that, if it is assumed 

diat "immediate mining^aiea" includes 

any road within the permit.area, dien 

die definition would be^as^defeating. A 

second commenter ma^iajoed that die 

use of theterm "wittun^a^giediate. 

mining area" in die excluci^ part of the 

definition of road&Jeaves me.mjtaning 

opei&to varying interpretatiohs-since the 

word "immeoUate" is;uiidjsfined and . 

vague.<*_';. J .. ; y. "!/'•..:. . '.. 

One commenter recommended diat •• 

the definition otroad exclude those 

access and haulroads that are located in 

areas that have been- mined and are 

upstream from sedimentation ponds or 

other siltation structures that have been 

designed to contain or treat the runoff 

from the 10-year, 24-hour precipitation 

event. Since diese roads are in areas 

that already have been disturbed and all 

runoff from these areas ia controlled, the 

commenter maintained diat it is not 

necessary diat diese roads meet the 

performance standards in § 816.150 and 

816.151. Another commenter suggested 

excluding from die definition roads 

within the mine area unless a road is to 

be left as a permanent road and bond 

release is being sought in accordance 

widi § 800.40. The suggested language 

stated that roads shall be considered to 

be within the mine area only where the 

drainage from the road is commingled 

and treated with other mine drainage 

through approved sediment control 

structures. A fifth commenter suggested 

that die exclusion be limited to roads 

which are constructed within the portion 

of die permit area which is controlled by 

siltation structures and treatment 

facilities as required by 30 CFR 816.46. 

The commenter also suggested diat this 

language would give an exact meaning 

to tiie exclusion since the area of the 

permit required to be controlled by 

siltation structure and treatment 

facilities is defined in 30 CFR 816.46. . 

Another commenter agreed with the 

exclusion, but felt diat it would extend 

to all roads within the mine area since 

their drainage is otherwise treated with 

diat of the rest of die mine. Another 

commenter was also concerned mat 

roads within die mine area not 

frequently changing should not be: 

included in the definition. ... 

OSMRE has not modified the rule in 

response to these wide-ranging 

comments. OSMRE intends the term 

"immediate mining area" to refer to die 

area of die mine that is subject to 

frequent surface changes and where die 

protection required by section 515(b)(17) 

of the Act, concerning controlling or 

preventing erosion, siltation, pollution of 

water, damage to fish and wildlife or 

their habitat or to public or private 

property, is provided by other applicable 

performance standards. The constraints 

of section 515(b)(18) of the Act would 

not apply to this area because any 

serious alterations to the normal flow of 

water and impact on natural stream 

beds and drainage channels would have 

already occurred, The term "immediate 

mining area" is not intended to 

encompass the entire permit area and, 

therefore, would not create a selfdefeating definition. OSMRE's view is in 

part consistent widi the view expressed 

by several of the commenters 

concerning the exclusion of roads within 

die permit area'for which drainage 

control is otherwise provided. Since all 

of the otiier standards of section 515 of 

the Act would also necessarily apply to 

temporary routes not considered roads, 

the protection required by section 

515(b)(17) of the Act would still be 

achieved. However, OSMRE has 

retained the concept of frequent changes 

to ensure tiiat all roads are adequately

 : 

reclaimed. All routes subject to frequent 

changes will be obliterated during tiie 

mining process. However, routes no 

longer changing need to be included in 

the definition otroad to ensure that they 

are adequately designed, constructed, 

maintained and reclaimed. 

One commenter maintained diat the 

definition of roads arbitrarily restricts 

die applicability of die regulations for 

certain types of road disturbances, and 

argued diat this is a clear contradiction 

of section 701(28) of the Act. The 

commenter stated that die deletion of 

pioneer and construction roads from the 

roads definition is clearly unlawful. The 

commenter argued that the principal 

purpose of pioneer and construction 

roads is to gain access to die mine site. 

The commenter also noted that pioneer 

roads typically disturb virgin areas and 

can lead to greatly increased 

sedimentation from a mine site 

(especially on steep slopes). Tha 

commenter asserted diat diis was a 

loophole that offers a potential for 

substantial abuse. The commenter 

maintained diat OSMRE must set out 

clearly in the record the performance 

standards tiiat.must bs met ln die 

design, construction, and reclamation of 

pioneer roads. Two otiier commenters 

were concerned diat die term "pioneer 

road" is not defined in the regulations 

and may not be universally understood. 

It was suggested that OSMRE should 

either define the term "pion?er road" or 

change the language in die. definition of 

roads. 

In response to tiiese comments, die 

provision excluding pioneer roads from 

the definition of road has been deleted 

from the rule. As indicated above, 

OSMRE has re-examined this issue and 

believes that pioneer roads are not a 

separate, discrete category of roads, but 

are part of die process of constructing 

primary and ancillary roads. As such, 

pioneer roads are subject to the 

performance standards applicable to the 

construction process such as those in 

•I 816.150(b)(1) through (8). Tha 

completed primary or ancillary road is 

subject to die remaining applicable 

performance standards; -

One commenter addressed the terra 

"pioneer roads" in the context of roads 

for coal exploration. The commenter 

assumed that most exploration roado 

are simply unsurfaced,.cleared paths 

that allow access into the area for offroad exploration equipment and would 

be considered "pioneer roads" and, 

therefore, not subject to die road 

regulations. If this assumption is correct, 
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Federaljleglster / Vol pftj^my^et^iWovember 8. 1988 / Rules and Regulations 

die commenter would support Uie 

current language widi respect to coal 

exploration activities and pioneer roads. 

OSMRE haa dropped die use of the 

term "pioneer roads" from die rule to 

avoid die kind of confusion reflected in 

the comment All roads used for coal 

exploration activities that substantially 

disturb die natural land surface are 

subject to die standards of 30 CFR 

816.15a 

One commenter agreed that temporary 

routes used for constructing access or 

haulroada should be excluded from u e 

definition of roads. However, the 

commenter noted diat, just as temporary 

routes are sometimes used to construct 

roads, so are temporary routes used to 

construct any number of structures, such 

as sediment ponds, stockpiles, and so -

forth. Tlie commenter maintained that 

tiiese routes also ahould be excluded 

from die definition. 

OSMRE has deleted die exclusion for 

temporary routes that are part of die 

road construction process. Temporary 

routes used to construct other types of 

structures are, by definition, ancillary 

roads. ' -

One commenter suggested that die 

rule state diat only diose roads used . . 

exclusively for die sole purpose of 

surface coal mining reclamation and 

exploration operations, should be 

included in the definition. The 

commenter. also suggested that die 

definition should state diat only those 

access and haulroads constructed, used, 

reconstructed, improved,* o/?i/ -

maintained are included.The•'•?"-

cammenterargned diat this language 

would clearly show that die 

combination of these activities is 

necessary, in order for a road to be 

considered a "road*' under die 

definition. 

OSMRE did not accept diese 

suggestions, which are intended to limit ' 

the scope of the definition of road; 

because to do so would be inconsistent 

with die requirements-of section"' 

515(b)(17) of die Act; which requires 

control or prevention of environmental 

harm- from die construction, -

;

--

ji

 » 

maintenance or postmining conditions ofaccess roads into and across'the site of 

operations. • - > ";.*•;-

One commenter. requested that -

OSMRE clarify the definition of road 

with respect to roads to and from -

transfer, processing; or storage areas; 

The commenter maintained mat all 

roads from diese areas would also fall' 

under die definition of road. 

OSMRE agrees that roads to and from 

transfer, processing, or storage areas are 

included in tins definition, if these roads 

fall within die definition of "surface coal 

mining operations." This will have to be 

determined on a case-by-case basis 

consistent widi the guidance previously 

stated in diis preamble. 

C. Sections 780.37/784.24 Road 

Systems 

Final $ 780.37 is die same as the 

proposed rule, except for some minor 

wording changes discussed below, and 

contains permit application 

requirements which specify die plans 

and drawings that an applicant is 

required to submit for each road witiiin 

a proposed permit area. The section also 

discusses certification of primary roads 

and the establishment of standard 

design plans by die regulatory authority. 

One commenter suggested that the 

requirements of § 780.37 would 

accomplish little more than additional 

excessive paperwork for industry and 

the regulatory authority because 

environmental protection could be 

accomplished by requiring roads to meet 

the performance standards of die 

existing regulations. 

OSMRE believes diat the 

requirements of § 780.37 are die 

minimum necessary to provide die 

regulatory authority with the permit 

information needed to find that the 

performance standards promulgated 

with this rule .will be met so that a 

permit may be issued. 

Sections 780.37(a)/784.24(a) Plans and 

Drawings 

Final § 780.37(a) requires the permit 

appUcation to include plans and 

drawings for each road to be 

constructed, used, or maintained widrin 

die proposed pennit area. OSMRE 

believes mat the information in die 

plans and drawings enables the 

regulatory authority to assess the 

impacts resulting from any road diat 

would be constructed or used as part of 

die surface mining operation, and 

determine whether die operation and 

reclamation plan would be effective in 

mitigating as much of the cumulative 

impacts on die environment as possible, 

consistent widi the purpose of the Act 

Final 5 780.37(a)(1) requires die 

applicant to submit a map, and as 

appropriate, cross sections, design 

drawings, and specifications for road 

widths, gradients, surfacing materials, 

cuts, fill embankments, culverts, bridges, 

drainage ditches; low-water crossings, 

and drainage structures. OSMRE 

expects that the amount of detail 

submitted by the applicant under diis 

section will be appropriate to die 

classification of die road and to the 

extent of the projected impact from die 

specific feature. For example, less detail 

will be required for an ancillary road 

than for a primary road, for which the 

drawings and specifications would be 

quite detailed. 

Final section (a)(2) requires drawings 

and specifications of each proposed 

road that will be located in the channel 

of an intermittent or perennial stream to 

give the regulatory authority die 

information necessary to approve the 

road, consistent with die performance 

standard in § 816.150(d)(1), which was 

promulgated pursuant to section 

515(b)(18) of the Act. 

Final § 780.37(a)(3) requires that the 

drawings and specifications for each 

proposed ford of perennial or 

intermittent streams that will be used as 

a temporary route provide the regulatory 

authority with sufficient information to 

review the stream ford and decide 

whether to approve it consistent widi 

the performance standard in 

§ 816.151(c)(2). A minor wording change, 

discussed below, was made in the final 

rule to make die language in 

§ 780.37(a)(3) consistent with the 

language in 5 818.151(c)(2). 

Final § 780.37(a)(4) requires a 

description of measures diat the 

applicant must take to obtain the 

approval of the regulatory authority for 

alteration or relocation of a natural 

stream channel, consistent widi die 

performance standard in proposed 

§ 818.151(d)(5). A minor wording change, 

discussed below, was made in the final 

rule to make die language in 

§ 780.37(a)(4) consistent widi die 

languag in § 818.151(d)(5). 

Final $ 780.37(a)(5) requires drawings 

and specifications for each low-water 

crossing of perennial or intermittent 

streams, to enable die regulatory 

authority to maximize the protection of 

die stream in accordance widi the 

performance standard in _ 816.151(d)(6). 

A low-water, crossing resembles a 

bridge in diat water flows under the 

structure at normal stream level, but 

high water goes over the structure 

during storm or flood events. A minor 

word change, discussed below, was 

made in the final rule to make die 

language in 9 780.37(a)(5) consistent 

with die language in 5 816.151(d)(8). 

Final § 780.37(a)(6) requires 

information on die applicant's plans to 

remove and reclaim each road, and the 

schedule to be followed for road 

reclamation, to ensure consistency with 

the perfonnance standards. This 

information will not be required for a 

road uiat is proposed to be retained for 

use under an approved postmining land 

use. 

One commenter supported the new 

language for pennit information 

requirements for roads and suggested 

that i 780.37(a) provides needed 
P.7 

information for die regulatory 

authorities to make an informed 

decision where an operator proposes to 

place roads in stream courses or ford 

streambeds. Another commenter 

suggested a language change for § 780.37 

and odier similar sections that reference 

the preparation of plans, drawings, or 

maps. The commenter suggested that 

each section could include a sentence 

noting diat these requirements may be 

accomplished dirough the use of 

photogrammetric metiiods for aerial 

surveys and mapping. 

While these metiiods may be 

appropriate to fulfill some of the plans, 

drawings, and map requirements in the 

paragraph and other sections, OSMRE 

does not believe that photogrammetric 

metiiods need to be specifically 

referenced in a national rule. The States 

are free to specify die types of plans, 

drawings and maps that will be 

acceptable based on an assessment of 

the quality, reliability and availability of 

data provided by various methods of 

data collection and presentation. 

One commenter maintained that die 

requirements in § 780.37(a) are 

redundant and should be deleted 

because diey are essentially found 

elsewhere in die regulations. The 

commenter noted that 30 CFR 816.57 

prohibits any activity within 100 feet of 

an intermittent or perennial stream 

unless diat activity is approved by die 

regulatory authority and diversions of 

perennial and intermittent streams, for 

any reason (including roads) are 

specifically addressed by 30 CFR 

816.43(b). The commenter argued further 

diat plans for diversions are required to 

be included in the permit by 30 CFR 

780.29, and the effects of all proposed 

activities on hydrology must be 

addressed in die permit under 30 CFR 

780.21(171'?' 

OSMRE'does not agree that 

§ 780.37(a)js*edundant. It contains die 

requirement diat the permit application 

include plans, drawings, maps, 

descrptions, and odier information^ 

enable die regulatory authority 

specifically to assess the impacts 

resulting from roads diat would be 

constructed or used as part of the 

surface mining operation relative to the 

specific performance standards 

applicable to roads. These information 

requirements will enable the regulatory 

audiority to determine whether the 

operation and reclamation plan will be 

effective in mitigating the impacts 

specific to roads to ensure compliance 

with those standards. 

One commenter asserted that there 

was insufficient protection for stream 

courses and suggested that OSMRE set 

minimum standards for determining 

allowable practices. 

OSMRE does not agree that further 

minimum standards are appropriate in a 

national rule, because such standards 

would fail to take into account regional 

differences in die hydrologic 

characteristics of streams. Furtiier, 

OSMRE believes diat the information 

requirements of § 780.37 provide the 

information necessary under the Act for 

regulatory autiiorities to use in making 

permit decisions concerning die location 

of roads in stream channels. Also, die 

performance standards for roads found 

in §§ 816.150 and 816.151, along widi 

die other general performance standards 

found in "Subchapter K-Permanent 

Program Performance Standards," 

provide sufficient protection for stream 

courses. 

Two commenters suggested diat the 

technology used in § 780.37(a) (2) 

dirough (5) should correspond to the 

terminology used in the performance 

standards referenced by each 

paragraph. 

OSMRE agrees and has made the 

following changes to die rule. In 

§ 780.37(a)(3), "each proposed stream 

ford" is replaced by "each proposed ford 

of perennial or intermittent streams" to 

correspond to the language in 30 CFR 

816.151(c)(2). In § 780.37(a)(4), "natural 

drainageway" is replaced by "natural 

stream channel" to correspond to the 

langauge in 30 CFR 818.151(d)(5), In 

§ 780.37(a)(5),"each low-water crossing" 

is replaced by "each low-water crossing 

of perennial or intermittent stream 

channels" to correspond to the language 

in 30 CFR 816.151(d)(6). Identical 

changes were made in § 784.24(a)(3) to 

correspond to 30 CFR 817.151(c)(2), in 

§ 784.24(a)(4) to correspond to 30 CFR 

817.151(d)(5), and in § 784.24(a)(5) to 

correspond to 30 CFR 817.151(d)(6). 

Three commenters maintained diat 

the requirement in § 780.37(a) to prepare 

plans is burdensome, does not reflect 

die dynamic nature of a mining 

operation, and does not produce a 

commensurate gain in environmental 

protection. The commenters suggested 

language changes and alternate 

concepts tiiat included requiring only 

typical design plans, plans as 

appropriate, or only details for primary 

roads. 

OSMRE does not agree with die 

commenters. The information required 

for plans and drawings in § 780.37(a) is 

necessary for the regulatory audiority to 

assess the impacts expected from roads 

associated with a permit application. 

This evaluation of die efficacy of the 

proposed reclamation and operations 

plan in mitigating impacts on the 

environment is consistent with the 

purposes of the Act. However, OSMRE 

expects diat the amount of detail 

submitted in a permit application will be 

appropriate to die classification of the 

road and its projected impacts. 

One commenter suggested that, where 

stream crossings are proposed, detailed 

plans for such crossings should be 

submitted so diat the regulatory 

audiority can evaluate die impacts of 

their construction. 

OSMRE agrees that this could be 

helpful to die regulatory audiority, and 

the regulatory authority has the 

flexibility to require diis type of 

information. Section 780.37 requires the 

applicant to submit plans and drawings 

for each road, including a map, 

appropriate cross sections, design 

drawings and specifications for road 

widths, gradients, surfacing materials, 

cuts, fill embankments, culverts, bridges, 

drainage ditches, low-water crossings 

and drainage structures. 

Four commenters suggested that the 

requirement in § 780.37(a)(6) to describe 

road removal and reclamation and 

provide a schedule for the work should 

be deleted or clarified to ensure that the 

detail required for the schedule would 

be commensurate with the dynamic 

nature of mining operations. The 

commenters noted tiiat, due to the 

variable nature of mining operations, a 

schedule for road removal and 

reclamation would be speculative at 

best. 

OSMRE recognizes the potential for 

changes in the road removal and 

reclamation plan and schedule as 

mining progresses. However, this 

potential for change, which is inherent 

in all plans and schedules, dbes not 

obviate the need to have tins best-plan 

information available to the regulatory 

authority during permit review to ensure 

consistency witii the performance 

standards found in 30 CFR 816.150(f). 

Sections 780.37(b)/784.24(b) Primary 

Road Certification 

This provision is identical to the 

proposed rule and requires tiiat the 

plans and drawings for each primary 

road be prepared by or under the 

direction of a qualified registered 

professional engineer experienced in the 

design and construction of roads. It also 

requires that the engineer certify diat 

the design meets die performance 

standards of 30 CFR Chapter VII, 

current, prudent engineering practices, 

and any design criteria estblished by die 

regulatory authority. The phase 

"current, prudent engineering practices" 

includes diose practices wellestablished by engineering principles 
P.8 

4S3rSS^ 

&*$j£Q*&ig^Uh*< 

:m f Vol. 53V'Nb/21ff'./ "Tuesday, November 8, 1888 / Rules and Regulations 

and widely recognized by experts with 

experience in the subject. 

Section 780.37(b) also allows design 

and certification by a qualified 

registered professional land surveyor 

experienced in the design and 

construction of roads in any State which 

authorizes land surveyors to certify the 

design of primary roads. This provision 

is based on the November 4,1983, 

amendments to the Act which authorize 

land surveyors to prepare and certify 

cross sections, maps, and plans (Sec. 

115, Pub. L 98-146,97 Stat 938 (1983)). 

The amendment provides that "not 

withstanding section 507(b)(14) of the 

Surface Mining and Reclamation Act of 

1977 (Pub. L. 95-87), cross sections, 

maps, or plans of land to be affected by 

an application for surface mining and 

reclamation permit shall be prepared by 

or under die direction of a qualified 

registered professional engineer or 

geologist or qualified registered 

professional land surveyor in any State 

which autiiorizes land surveyors to 

prepare and certify such maps or plans." 

Before a land surveyor could certify the 

design of a primary road under this rule, 

State law also would have to grant 

corresponding audiority. ~ ' 

One commenter indicated support for 

§ 780.37(b), which reflects the'1983 

amendment to die Act initiated by the 

surveying profession authorizing a 

qualified registered professional land 

surveyor to design and certify plans and 

drawings for each primary road. 

Two comments maintained that at die 

time of permit application preparation, 

an operator may not have determined 

the precise location and design of a road 

or may not have sufficient site-specific 

field information to certify die plans and 

drawings for a primary road. They 

suggested that OSMRE change the 

language in § 780.37(b) to allow for die 

submission of.detailed design and plans 

prior to construction, instead of 

requiring submission widi the permit 

application. They noted diat this would 

reduce the likelihood of permit.' 

modifications later during the duration 

of the operation. In a related comment it. 

was suggested that §' 780.37 contain a 

provision requiring submission to die 

regulatory audiority by die permittee of 

updated plans and drawings to account 

for changes in die location or design of 

roads. 

OSMRE did not accept the suggestion 

that the final rule allow submission of 

detailed design and plans at the time of 

road construction. OSMRE believes that 

in order to adequately assess the 

impacts of the roads planned for an 

operation, die regulatory authority 

needs the information required in 

§ 780.37(b) during die initial permit 

review. This is particularly important for 

primary roads due to die potential for 

environmental impact associated with 

their frequency or length of usage. Also, 

OSMRE anticipates that sufficient 

information will be present in the permit 

application package to ensure 

compliance with the appropriate 

performance standards. OSMRE did not 

accept die suggestion diat the final rule 

require the submission of updated plans 

and drawings to account for changes in 

the location or design of roads. If 

changes occur, tiiey must be 

incorporated into die pennit by the 

normal permit revision process 

established in 30 CFR Part 77i. 

One commenter did not agree with the 

language tiiat authorizes land surveyors 

to certify plans and drawings for roads. 

The commenter maintained that the 

design of roads was outside the field of 

expertise of land surveyors. 

OSMRE recognizes that not all land 

surveyors have adequate expertise to 

certify plans and drawings for road 

designs, and therefore requires that die 

registered professional land surveyor be 

"qualified and experienced in the design 

and construction of roads." This. 

requirement along with die requirement' 

for State authorization of surveyor . 

certification of road design, is sufficient 

to ensure tiiat certifying land surveyors 

will have appropriate expertise to 

certfiy plans and drawings for roads. 

One commenter argued tiiat the 

certification requirement in § 780.37(b) 

was unnecessary and should be deleted. 

The commenter noted that since the 

roads were part of the permit area, they 

were already completed by a qualified 

engineer or land surveyor and, therefore, 

must comply with the approved mining 

plan and performance standards. The 

commenter argued further that requiring 

post-construction certification of roads 

creates additional unnecessary 

paperwork with no net environmental 

protection. 

OSMRE does not agree with die 

commenter and beUeves die design 

certification requirement for primary 

roads is necessary because the potential 

for environmental impacts from primary 

roads can be significant By requiring 

certification tiiat the design of primary 

roads meets the requirements of die Act 

the potential problems associated with 

design of primary roads will be 

minimized. 

Two commenters suggested that 

geologists be authorized to certify plans 

and drawings for primary roads. They 

noted that the November 4,1983, 

amendment to the Act allows cross 

sections, maps, or plans of land to be 

affected by an application for surface 

mining and reclamation permit to be 

prepared by or under the direction of a 

qualified registered professional 

geologist. 

OSMRE did not accept diis suggestion 

because die existing authority of 

geologists is not affected by this 

rulemaking; therefore, their authority for 

preparing and certifying cross sections, 

maps and plans has not changed since 

1985 (50 FR 18195, April 24,1985). 

One commenter suggested that 

ancillary roads should also be designed 

and certified by a qualified professional 

to ensure proper drainage control and 

stability of road embankments. 

OSMRE did not accept diis 

suggestion. It is not necessary to require 

design certification of ancillary roads 

because usage of ancillary roads has 

smaller potential for adverse 

environmental impact than usage of 

primary roads. AncUlary roads are 

subject to relatively infrequent use by 

smaller, lighter weight vehicles. See the 

discussion of die road classification 

system in the preamble to final 

1816.150(a)(1). 

Sections 78Q37(c)/78£24(c) Standard 

Design Piano 

Final § 780.37(c) is identical to the 

proposed rule and allows die regulatory 

authority to establish engineering design 

standards for primary roads through uie 

State program approval process, in lieu 

of the engineering tests diat otherwise 

would be performed to estabUsh 

compliance with die mlnihrnm static. . 

safety factor of l.S, for all primary, road 

embankments. Such standards must be 

no less effective than die minimum 

static safety factor of 1.3. Suitable 

engineering design standards are those 

that are accepted in die engineering 

community as die basis for constructing 

stable roads, and are known to assure 

proper performance through testing and 

past practice. This provision enables die 

regulatory authority and the operator to 

save time and effort during die design 

and review of road plans, and also 

ensures protection of die environment 

through uie application of standards 

that have proven effective for die 

conditions prevalent in each State. 

Three commenters supported 

proposed § 780.37(c). They noted diat 

by aUowing the regulatory audiority to 

establish or use engineering design 

standards instead of engineering tests, 

§ 780.37(c) reinforces die Act's finding in 

section 101(f) that because of die 

diversity in terrain. cUmate, biologic, 

chemical, and other physical conditions 

in areas subject to mining operations, 

the primary govemmental responsibility 

for developing, authorizing, issuing, and 

enforcing regulations for surface mining 
nP.9 

/ Vol. 53, No. 218 / Tuesday, November 8, 1988 / Rules and Regulations 45187 

and reclamation operations should rest 

with die States. 

D. Sections 780.38/784.30 Support 

Facilities 

Final g 780.38 addresses the specific 

permit application requirements for all 

support facilities covered by § 816.181 of 

die performance standards. A permit 

applicant must submit a description, 

plans and drawings for each facility to 

be constructed, used or maintained 

within the proposed permit area. The 

plans and drawings include a map, 

appropriate cross sections, design 

drawings, and specifications sufficient 

to demonstrate compliance with 

§ 816.181 for each faciUty. The final rule 

is adopted as proposed. 

This rule expands new g 780.38 to 

cover support facilities in general. 

Aldiough existing 30 CFR Part 780 

contains a number of requirements 

applicable to support faciUties, die 

existing rules do not contain a general 

requirement diat a permit application 

include plans and drawings for support 

faciUties tiiat would be sufficient to 

demonstrate compUance with g 816.181. 

To remedy this deficiency, § 780.38 

applies to aU support faciUties in 

addition to the conveyors and rail 

systems covered by previous § 780.37. 

One commenter objected to proposed 

§ 780.38 because it appeared to the 

commenter to consider roads associated 

with support facilities to be distinct from 

roads regulated by g § 816.150 and 

816.151. The commenter stated that the 

preamble provided no justification for 

distinguishing roads associated with 

support faciUties as distinct from roads 

associated with the surface coal mining 

operation since die same equipment 

uses both roads. For this reason, the 

commenter continued, all roads should 

be designed and maintained under a 

uniform set of performance standards 

and reclaimed to permanent program 

standards. 

OSMRE agrees that this rule should 

not distinguish roads associated widi: 

support faciUties from other roads. Hie 

definition otroad in final §701.5 

includes all roadb-that are used in 

surface coal mining and reclamation 

operation without differentiating 

between roa&s for support facilities and 

roads for coal mining operations. 

Section 780.37 as well as the 

performance standards in §g 818.150 

and 151 apply to all roads at the coal 

mining operation including those 

associated with support faciUties. 

Therefore, aU roads must be designed 

- and maintained under a uniform set of 

performance standards and reclaimed to 

permanent program standards. 

The same commenter also stated that 

proposed § 780.38 appeared to remove 

support facilities, including conveyors 

and rail systems, from die permit 

information requirements and 

permanent program performance 

standards that were applicable for these 

facilities under the 1983 rule and would 

be applicable to roads under the 

proposed rule. The commenter stated 

that § 780.38 must be substantiaUy 

rewritten to ensure that conveyors and 

rail systems in particular, and aU 

support facilities in general, meet all 

permanent program application and 

perfonnance standard requirements. 

OSMRE disagrees witii the 

commenter's assessment of die purpose 

and effect of this final rule. The final 

rule does not change or affect in any 

way the performance standards for 

support facmtiefs. The rule brings the 

format of the permit information 

requirements into harmony with the 

format of the performance by placing the 

permit information requirements and 

performance standards for roads and 

support facUities in separate, parallel 

sections. 

OSMRE also disagrees diat § 780.38 

should be rewritten to indicate more 

clearly the performance standards 

applicable to support faciUties. In fact 

§ 780.38 certifies the performance 

standards applicable to support 

faciUties (including rail systems and 

conveyors) by grouping die permit 

information requirements and die 

associated performance standard 

reference in the same place. Previously, 

the permit appUcant would have had to 

search through § 780.37 to determine die 

requirements appUcable just to roads 

and those applicable to both support 

facilities and roads. 

One commenter stated that the tide of 

§ 780.38 should be "Other 

Transportation Facilities" since that is 

the section's topic of discussion. 

OSMRE did not accept this comment. 

Since the permitting requirements 

established by this section cover al) 

support facilities, and paraUel and 

reference the performance standards in 

g 818.181, concerning support facilities, 

the title is appropriate. 

Two commenters requested that 

g 780.38 be withdrawn from this 

rulemaking because OSMRE has not 

defined "support faciUties," and it is 

therefore premature for OSMRE to adopt 

diis rule. They also stated diat die 

proposal substantially changes die 

scope of this rule from roads and 

conveyors to aU facUities. They stated 

that it was not possible to comment on 

g 780.38 without any guidance on what 

constitutes a support facility until it is 

defined in die rules. Finally, die 

commenters suggested diat States are 

capable of determining diose facilities 

related to coal mining that should be 

regulated under tiieir regulatory 

programs and establishing appropriate 

performance standards as necessary. 

OSMRE agrees in part and disagrees 

in part. First, effective July 11,1988, 

OSMRE reinstated the suspended 

definition ot support facilities (53 FR 

21764, June 9,1988) pursuant to the 

January 29,1988 decision of the U.S. 

Court of Appeals for die District of 

Columbia Circuit (NWF v. Hodel). 

However, OSMRE agrees diat State 

regulatory authorities are capable of 

identifying facilities tiiat should be 

subject to die provisions of the Act 

without having a definition of support 

facilities in die Federal regulations. 

Therefore, OSMRE has proposed to 

delete the recently reinstated definition , 

of support facilities from 30 CFR 701.5 

(53 FR 23522. June 22,1988). However, 

whether there is or is not a Federal 

definition ot support facilities is 

irrelevant to this rule, the purpose of 

which is to specify more clearly the link 

between permit information 

requirements for such facUities and the 

applicable perfonnance standards, 

which are not part of dus rulemaking. 

The information required in g 780.38 is 

needed to demonstrate compliance by 

each facUity widi 30 CFR 816.181. 

One commenter stated tiiat g 780.38 

was unnecessary because sufficient 

information is authorized in the existing 

regulations to show die location and 

dimensions of aU support areas within 

the permit boundary; therefore, the 

proposed rule does Uttie more than 

reinforce the existing regulations. 

OSMRE disagrees that g 780.38 is 

unnecessary because aldiough existing 

30 CFR Part 780 contains a number of 

requirements which may be appUcable 

to support facilities, the existing rules do 

not contain a specific requirement that a 

permit application include plans and 

drawings for support faciUties that 

would be sufficient to demonstrate 

compliance with g 8iai81. By specifying 

die degree of detail that is needed in 

each permit application, g 780.38 

provides clear direction to the applicant 

E. Section 815.15(b) Road Standards 

for Coal Exploration 

Final g 815.15(b) requires all roads or 

other transportation facilities used for 

coal exploration to comply widi die 

applicable provisions of 30 CFR 818.150, 

816.180. and 816.181. The final rule is 

unchanged from die proposal. 

OSMRE believes diet it is not 

necessary for roads used for coal 

mMkiJL _,_A__v.iM.^_ikMu__k_._.iliid .mM 11 IIT"""" IfaaJk^a^taU.JMMikUMtu i •* ; 
P.10 

m m / Vol- 83; Nor Zk@. f. Tuesday,. November 8, 1988 / Rules and Regulations 

. »: 

i ' 

exploration to meet die performance 

standards of g 818.151 for primary roads 

because die amount of coal or spoil 

transported during coal exploration 

operations is relatively small. OSMRE 

beUeves that die performance standards 

of g 818.150 provide sufficient protection 

for die environment during coal 

exploration. Under section 512(a) of the 

Act 30 CFR 815.15 applies only to "coal 

exploration activities which 

substantially disturb the natural land 

surface." Thus, a road must comply with 

the applicale provisions of 30 CFR 

816.150 only to the. extent that the coal 

exploration activities substantially 

disturb the land where the road is 

located. OSMRE has defined the term 

substantially disturb in 30 CFR 701.5. 

One commenter supported die 

language in g 815.15(b) because, in the 

commenter's opinion, it allows die 

regulatory authority some flexibility in 

deciding if a coal exploration road 

should be designed and constructed to 

primary road standards. The commenter 

stated that since these roads are 

generally used for only a short time 

during coal exploration activities, 

especiaUy when 250 tons or less of coal 

is removed, the design and construction 

of a road to such stringent standards is 

not necessary. ••.''-

OSMRE disagrees with the 

commenter's assessment of die 

applicability of.the rule. The rules, 

adopted today do not apply die primary 

road performance standards iii § 816.151 

to coal exploration activities. 

Furthermore, the coal exploration 

regulations do not require prior approval 

of roads when 250 tons or less of coal is 

to be removed. -••'. . ~ 

Another commenter stated that 

OSMRE has a responsibility to set 

national standards for roads associated 

with coal exploration, regardless of the 

amount of coal removed from the site. 

The commenter suggested that 

haulroads for coal exploration in steepslope areas have the potential for 

environmental.damage and require 

standards to ensure tiiat environmental 

damage caused by construction and use 

of these roads is minimised. The 

commenter also stated tiiat OSMRE has 

no basis: for the arugment-that specific 

design standards-only apply to primary 

roads because OSMRE has a statutory 

responsibility to provide meaningful 

national standards for all surface coal 

mining and reclamation operations. The 

commenter concluded that meaningful 

national standards for roads associated 

with coal exploration sites should be 

adopted in the final rule. 

OSMRE has included a full discussion 

on the necessity of promulgating specific 

design standards for mining roads in the 

discussion of g 816.150. Neither section 

512 nor section 515 of the Act requires 

the establishement of design standards 

for coal exploration roads. The 

requirement in g 818.150(c) that the road 

shall incorporate appropriate limits for 

grade, width, surface materials, surface 

drainage control, culvert placement and 

culvert size, and any necessary design, 

criteria established by the regulatory 

authority will provide adequate 

environmental protection to the area of 

coal exploration activities. Enforcement 

of these provisions wiU provide die 

necessary protection in steep-slope 

areas. 

One commenter recommended mat 

the term substantially disturbed in 30 

CFR 701.5 be changed to exclude the 

construction of a road for coal 

exploration activities proposing to 

remove less tiian 250 tons of coal. 

OSMRE does not agree that die 

construction of a road for such coal 

exploration activities could not involve 

"substantial disturbance." The 

determination of when "substantial 

disturbance" has occurred must be 

made on a site-by-site basis. OSMRE 

does not believe the routine 

maintenance of an existing road used 

for coal exploration is a substantial 

disturbance requiring the road to be 

reclaimed in accordance with the 

preformance standards of section 515 of 

the Act. To use an existing road that is 

in poor condition due to lack of 

maintenance, a coal exploration 

operator may need to blade the road 

surface, replace some culverts, or do 

other minor routine maintenance. Such 

routine maintenance of an existing road 

would not be considered substantial 

disturbance of the natural land surface 

that would require reclamation of the 

road. Further, in some cases coal 

exploration activities are conducted 

without roads and in such a manner that 

the activities do not substantially 

disturb the natural land surface. 

F. Sections 818.150/817.150 Roads: 

General . ...'" ' 

Final g 816.150 applies to ail roads as 

defined by 30 CFR 701.5. It includes a 

road classification system, performance 

standards, design and construction 

limits, provision for design criteria, and 

provisions on road location, 

maintenance, and reclamation. Section 

816.150 is identical to the proposed rule 

except for a clarifying change to 

g 818.150(b)(1) adopted at the request of 

EPA and minor changes to 

§ 816;i50(d)(l) and (f). 

Sections 818.150(a)/817.150(a) Road 

Classification System 

Final g 816.150(a) is identical to the 

proposed rule and establishes 

classifications for all mine roads as 

eitiier primary or ancillary. Primary 

roads are defined as any roads(l) used 

for transporting coal or spoil, (2) 

frequentiy used for access or other 

purposes for a period in excess of six 

months, or (3) to be retained for an 

approved postmining land use. An 

ancillary road is any road not classified 

as a primary road. OSMRE believes that 

the potential for environmental harm 

associated with the two types of roads 

is sufficiently different to require a twotiered classification system. Roads that 

are heavily travelled over a long period 

of time; used by large, heavy vehicles; or 

that have a potential for spillage have a 

greater potential for environmental harm 

than roads that are used infrequently by 

small, light vehicles or for short periods 

of time. This concept is supported by 

OSMRE's experience and observations 

over die past ten years operating a 

regulatory program. 

Each of the factors that distinguish 

primary roads from ancillary roads is 

related to an increased potential for 

environmental harm. Roads used for 

haulage of coal, overburden, spoil, etc. 

are classified as primary roads under 

die final rules. These roads are typically 

used by large, heavy vehicles. In order 

to accommodate such'Vehicles, the road 

must be wide, generaly involving two 

lanes of traffic, and its surface must be 

capable of supporting the weight of the 

traffic. A wide road involves much more 

earthmoving in its construction and 

exposes more surface area, increasing 

the potential for erosion. On heavily 

travelled roads, provision must be made 

for vehicles to pass one another safely. 

The design manuals recommend wider 

lanes where the ability of vehicles to 

pass one another is a concern. See 

Kaufman and Ault, pp. 30-33. On less 

travelled roads, a single lane would 

suffice. The increased potential for 

environmental harm associated witii 

frequently travelled roads derives from 

the greater surface area exposed and the 

greater dust entrainment associated 

widi larger vehicles and the greater 

volume of traffic. Roads with a higher 

weight bearing capacity require a 

thicker subbase, so that more material 

must be excavated, placed and 

compacted in constructing the road. 

Design manuals recommend that 

roads used by large haulage vehicles, for 

example, in the 100,000-200,000 pound 

range, minimize the severity of road 

grades. See Kaufman and Ault, pp. 8-11. 

4 
P.11 

isteg / Vol; 53, No. 218 / Tuesday,. November 8j 1888* A Rules--aaaS 

Building roads to accommodate heavier 

vehicles, therefore, often requires 

substantial cut and fill work to limit 

maximum and sustained grades in 

addition to providing adequate width for 

wide vehicles to safely pass. Also/since 

there is a certain amount of cargo 

spillage associated with haulage roads, 

the potential for erosion, siltation or 

damage to property or wildlife habitat is 

greater for such primary roads due to 

loose coal, coal waste or spoil on the 

road surface. Roads not used for 

haulage will not typically generate this 

potential problem. 

Under the classification system, 

primary roads also include roads 

frequentiy used for a period in excess of 

six months; This factor is included due 

to the increased risk of environmental 

harm associated witii heavy traffic over 

long periods of time. Duration of road 

use is also an important predictor of 

potential environmental harm. The 

longer a road exists, die greater 

potential for sUps or grade failures as 

weU as otiier impacts previously 

mentioned. In OSMRE's experience, the 

potential for erosion and siltation as 

well as road grade failures is quite 

seasonal, normally occurring in early 

spring. Especially in the Eastern U.S., 

the increased precipitation associated 

with this period combined with frequent 

freezing and thawing tends to degrade 

road beds as well as the surface. 

However, such problems are frequently 

not evident in die first season. 

Moreover, roads used less tiian six 

months will frequentiy hot even be in 

place during.diis season. Therefore, 

OSMRE believes,' due to the increased 

risk of environmental harm, that longer 

term roads must be subject to die more 

stringent primary road design and 

performance standards. OSMRE 

strongly believes that differentiating 

between potentially greater or lesser 

environmental impacts in developing 

regulatory requirements is fully 

consistent with the requirement in 

section 102 of die, Act to estabUsh a 

-grogram to protect society and the 

environment--and to strike a balance 

between protection of the environment 

and the nation's need for coal. OSMRE 

is basing these road provisions, in part, 

on ten years of experience enforcing the 

surface mining regulatory program. 

OSMRE believes that these standards 

are both necessary and adequate to 

achieve the purposes of the Act 

Ancillary roads are aU roads not 

designated as primary. AncUlary roads . 

are subject to relatively infrequent use 

by smaller, lighter weight vehicles. 

Consequently, die potential severity and 

risk of harm from use by such vehicles is 

smaller. OSMRE has not identified 

specific types of roads in die rule as 

ancillary because it would not be 

possible to make an all-inclusive Ust. 

Examples of ancillary roads are those 

which provide access to air shafts, 

sediment ponds, and locations for 

hydrologic sampling, equipment 

maintenance, monitoring, or other 

similar uses. 

One commenter supported the 

concept of two classifications for roads 

a3 well as the handling of performance 

standards in general terms. The 

commenter noted that this gives the 

regulatory authority more discretion in 

managing permitting and enforcement 

programs. 

One commenter suggested that all 

roads outside the area controUed by 

siltation structures and treatment 

facilities be considered primary roads. 

OSMRE did not accept this suggestion 

because it is unnecessarily rigid. Such a 

system for designating primary roads 

would entail substantial design, 

construction and maintenance costs 

without, in many cases, a concomitant 

reduction in potential environmental 

harm. 

Some commenters were concerned 

that the proposed two-tiered system was 

overly simplistic, especiaUy with resepct 

to limited use roads that exist for 

extended periods of time. The 

commenters felt that such roads would 

be inappropriately considered primary 

roads. 

OSMRE does not agree diat the twotiered system is overly simplistic, nor 

does it agree that a "simple" system is 

necessarily inferior to a "complex" one. 

The final rule balances environmental 

protection, safety and road stability 

against design, construction and 

. maintenance costs while providing die 

flexibility to address a multitude of 

varying site conditions. Under the final 

rule, infrequently used acess roads that 

will be in existence for an extended 

period of time will be considered 

ancillary roads. . 

Numerous commenters voiced their 

concerns about how the elements of the 

definition of primary road in 

§ 816.150(a)(2) would be interpreted. 

Regarding the criterion in 

§ 816.150{a)(2)(i) that roads used for 

transporting coal or spoil are primary 

roads, there was concem that a bona 

fide ancillary road would automatically 

be classified as a primary road if a 

pickup truck loaded with coal used the 

road. 

OSMRE did not modify die regulation 

in response to this concern because it is 

confident that such situations rarely, if 

ever, arise and that regulatory 

authorities will use reasoned judgement 

in applying the definition to achieve its 

intended purpose. Roads used for coal 

and spoil transportation must be 

considered primary roads because of the 

generally large trucks used, the high 

frequency of trips, the potential for 

spillage of coal or spoil onto the road 

surface, and die fact that coal and spoil 

transport occurs throughout the life of 

the operation. 

Concerning the frequency of use 

criterion contained in § 818.150(a)(2)(H), 

a commenter suggested that the word 

"frequentiy" be dropped because some 

infrequently used road could cause more 

environmental harm than coal 

haulroads. It was also suggested that 

frequency be defined. 

OSMRE did not drop the frequency 

element from the definition of primary 

road because it believes tiiat frequency 

of use is a key predictor, along with 

duration of use, of potential 

environmental harm. OSMRE did not 

add a definition of "frequently used" to 

the final rule because it is not possible 

or advisable in a national rule to devise 

a definition that will fairly address all 

sets of circumstances. Whether a road is 

"frequentiy used" is a determination 

that should be made at ground level on a 

case-by-case basis taking into account 

the probable environmental 

consequences of the anticipated level of 

use and the types of vehicles expected 

to use the road As an example, OSMRE 

considers that a road used only once or 

twice each day, or once or twice each 

shift, for access to a structure housing a 

fan or ventilator (fan house) for the 

purpose of monitoring and/or 

maintenance would not be a'"frequently 

used" road. 

Concerning the duration of use 

criterion in § 816.150(a)(2)(ii), it was . 

suggested that the six-month period 

should be deleted and that the primary 

road definition should better reflect the 

type of vehicular use and primary 

purpose of the road. It was argued 

further that access and service roads 

used in excess is six months would be 

classified as primary roads thus 

burdening the operator with 

unnecessary design and performance 

requirements. 

The concem that the primary road 

definition should better reflect the type 

of vehicular use and primary purpose of 

the road is addressed in the previous 

' discussion explaining the basis for the 

road classification system. As to which 

roads are classified as primary, the 

commenter may have misunderstood the 

proposed regulation. Duration of use is a 

key predictor of a road's potential for 

environmental harm. It is generally 

,_,__. ......... -.-.. ^ ...... - - .............. .i m _______ ___,i___._M..m_miu ___ 
P.12 

ig / Vol. 53rNo. 218 / Tuesday, November 8, 1988 / Rules and Regulations 

recognized that die longer a road is 

used, die greater die potential for 

stability problems and erosion. 

However, an infrequently used road of 

more than six montiis duration (which is 

not used to haul coal or spoti, and which 

wiU not be retained for postmining land 

use) is unlikely to cause significant 

environmental harm and, thus, is not 

classified as a primary road. The sixmonth limit establishes a reasonable 

balance between long- and short-term 

use. 

Three commenters suggested that 

OSMRE revise the road classification 

system in g 818.150(a)(2)(iii) as it relates 

to roads that wUl be retained for an 

approved postmining land use. The 

commenters argued that retaining a road 

for a approved postmining land use 

should not be a determining factor in 

classifying the road because to do so 

would subject the road to performance 

standards that could be unrelated to die 

use of the road during the mining 

operation. They felt tiiat the 

classification should be determined 

solely by the purpose and frequency of 

use of the road during mining. The same 

commenters were also concerned about 

how changes in the status bf a road 

would be handled, e.g. a road classified 

as ancillary during the mining operation 

becomes a primary road when the 

operator retains the road after mining 

and reclamation is completed. * 

OSMRE did not accept the 

commenters'arguments and continues 

to believe that roads which are to be 

retained for an approved postmining 

land use should be considered primary 

roads and be subject to the associated 

performance standards. OSMRE bases 

this belief on the fact that after final 

bond release, protection from the future 

environmental consequences of road use 

and maintenance under the Act ceases. 

The operator has no responsibility for 

subsequent adverse environmental 

impacts related to die road's use and 

maintenance. In order to provide a 

reasonable assurance of environmental 

protection after the site has been -

reclaimed, and in the absence of an 

operator, OSMRE believes diat ,-

postmining roads must be designed and. 

constructed in compliance with the more 

stringent primary road standards. This 

will ensure, as far as possible, diat die 

location, design, construction and t 

maintenance of the road during mining 

operations will have minimum adverse 

impacts after reclamation. Concerning 

changes in the classification of a road, 

OSMRE believes that die regulatory 

authority must approve such changes 

based on the road's compUance with all 

standards applicable to the road. 

One commenter suggested that 

performance standards are unnecessary 

because primary roads are required as 

part of any operation, and the 

regulations are only a duplication of 

existing performance standards. 

OSMRE does not agree. These 

regulations and performance standards 

specific to roads are necessary to insure 

that all roads are properly classified, 

that potential environmental impact of 

the roads are adequately evaluated and 

that roads are located, designed, 

constructed, reconstructed, maintained, 

and reclaimed so as to minimize their 

environmental impacts. 

One commenter maintained that some 

of the requirements for primary roads 

would be burdensome to small 

operators. The commenter noted that at 

small operations, the equipment used to 

transport the coal may only include 

small trucks of limited capacity. The 

commenter suggested that some 

allowance or exception should be made 

whereby use of a road to transport coal 

does not automatically cause it to be a 

primary road. 

OSMRE understands the commenter's 

concern for smaU operators. However, 

as discussed above, OSMRE has 

concluded that roads used for 

transporting coal or spoil have a 

potential for environmental damage 

regardless of whether their use is 

frequent or long-term. Therefore, roads 

used for transporting coal or spoil have 

been included in the definition of 

primary roads and are subject to more 

stringent performance standards. It 

should be noted diat OSMRE expects 

that road design will reflect the 

anticipated road duration and usage. 

One commenter indicated that the 

term "ancillary road" requires a better 

definition. The commenter was 

concerned because of the lack of any 

permitting or reclamation requirements 

for ancillary roads. 

OSMRE disagrees that "ancillary 

road" is poorly defined. Taken together, 

the definition otroad at g 701.5 and the 

definition of primary road at 

§ 816.150(a)(2) delineate ancillary road 

with a degree of specificity appropriate 

to a national rule given the variety of 

roads associated with mining 

operations. The permit information and 

reclamation requirements specifically 

associated with ancillary roads are 

found in g g 780.37 and 816.150, 

respectively. 

One commenter recommended that 

the classification system be changed to 

account for the diversity in service life 

and uses of mine roads. This commenter 

also suggested that designs should be 

prepared by qualified professionals. 

OSMRE agrees diat some form of 

categorization of roads is necessary 

from both the environmental and 

economic points of view due to the 

diversity of road uses and types 

associated with mining operations, but 

did not make any change in the final 

rule because the road classification 

system being adopted today explicitly 

differentiates between die two types of 

roads on the basis of purpose and 

frequency of use. Further, g 780.37 

requires the plans and drawings for 

each primary road to be prepared by, or 

under the direction of, qualified 

professionals. Because the risk of 

environmental harm from ancillary 

roads is less than tiiat from primary 

roads, the added expense for design and 

construction certification by a registered 

professional is not appropriate. 

One commenter felt that g 816.150(a) 

should explicitly exclude public roads. 

OSMRE disagrees. The applicability 

of these standards to public roads is 

discussed elsewhere in this preamble. 

One commenter objected to the 

distinctions made between primary and 

ancillary roads for determining which 

roads have to meet specific performance 

standards. The commenter maintained 

tiiat OSMRE has failed to meet die 

mandate of the Act by not establishing 

specific design criteria for all roads 

including ancillary roads, because of the 

potential for environmental damage. The 

commenter did not accept OSMRE's 

position that ancillary roads do not 

cause as much damage as primary 

roads. The commenter maintained that 

OSMRE is using the classification 

system to allow an exception from the 

statutory standards for ancillary roads. 

The commenter was particularly 

concerned with die potential 

environmental damage caused by 

ancillary roads in steep-slope areas. 

Another commenter questioned the 

need to classify all mine roads as either 

primary or ancillary on the basis of 

purpose and frequency of use. The 

commenter argued that all roads, 

regardless of their intended purpose or 

frequency of use, retain similar potential 

for environmental damage if they are 

not designed, constructed, maintained or 

reclaimed properly. The commenter 

maintained that the additional 

requirements in g 818.151 are essentially 

the best management practices tiiat 

should apply to all roads in order to 

achieve the performance standards 

contained in § 818.150(b). The 

commenter contended that the twotiered classification system would result 

in less attention being paid to ancillary 

roads, which are more numerous in a 

mining operation than primary roads. 
P.13 

*) ®B / Vol. 53, No. 218 / Tuesday,; November 8. 1988 / Rules and Regulations 452(11)1 

OSMRE believes diat die road , 

classification system established in 

§ 816.150(a) appropriately distinguishes 

between primary roads, which need 

more detailed consideration in their 

design, construction, maintenance, and 

reclamation; and ancUlary. roads, which 

are likely to be smaU and would 

generally not be used for carrying heavy 

loads. The basis for the distinction is 

that the potential severity and risk of 

harm associated widi smaller, less used 

(ancillary) roads is considerably less 

than that associated with larger, busier 

(primary) roads. Ancillary roads are not. 

exempted from performance standards; 

all roads, including ancUlary roads, must 

comply widi the standards of g 816.150, , 

which is an expansion of the statutory 

standards contained in section 515(b) 

(17) and (18) of the Act 

Sections 818.150(b)/817(b) . 

Performance Standards 

Final g 816.150(b) establishes 

performance standards that operators 

must meet when locating, designing 

constructing, reconstructing, using, 

maintaining, and reclaiming roads 

associated with surface coal mining 

operations as defined by 30 CFR 701.5. 

Section 818.150(b) is identical to the 

proposed rule except for a clarifying 

change to g 818.150(b)(1) adopted at the 

request of EPA. The change is discussed 

below in the responses to comments. 

The performance standard in section 

(b)(1) requires die control or prevention 

of erosion, sUtation, and the air poUution 

attendant to erosion, including road dust 

as wed as dust occuring on the other 

exposed surfaces, by measures such asvegetating, watering, using chemical or 

other dust suppressants or otherwise 

stabilizing all exposed surfaces in 

accordance with current prudent 

engineering practices. 

The standards in sections (b) (2) 

through (7) require an operator to -

control or prevent damage to fish; 

wildlife, or their habitat and related 

environmental values; control or preventadditional contributions of suspended 

solids to stream.flow.or runoff outside 

the. permit area; neither.cause nor 

contribute, directly or indirectly, to the 

violation of State or Federal water, 

quality standards appUcable to 

receiving waters; refrain from seriously 

altering the normal flow of water in. 

streajgpeds or drainage channels; 

prevent or control damage to public or 

p*!*|ta property, including die . 

prevention-or mitigation of adverse 

effects to lands within the boundaries of 

units of the National Park System, the 

National Wildlife Refuge System, the 

National System of Trails, the National 

Wilderness! Preservation System, the 

Wild and Scenic Rivers system, 

including designated study rivers, and 

National Recreation Areas designated 

by Act of Congress; and prohibit the use 

of acidic or toxic substances in road 

surfacing. 

One commenter felt tiiat g 616.150 

fails to provide meaningful,, national 

standards for die design, construction, 

maintenance, and reclamation of roads. 

The commenter refened to a discussion 

of the need for detailed perfonnance 

standards in the preamble to the 1979 

final rule where OSMRE stated, in part, 

that there were many comments 

recommending that OSMRE "Umit the 

Federal performance standards to 

generalized guidelines and suggestions 

which would dien serve as the nucleus 

for the State regulatory authorities to 

develop standards unique to local 

conditions." In response to these 

recommendations, OSMRE "determined 

that such general standards, 

incorporating broad interpretation 

capabilities, would not be consistent 

with the intent of the Act or the rest of 

the regulatory scheme" (44 FR 14901, 

15246, March 13,1979). The commenter 

suggested that the proposed rule was 

inconsistent with the position expressed 

in 1979. 

Where it is appropriate to "flesh out" 

portions of the Act in the implementing 

regulations, OSMRE has not hesitated to 

do so. OSMRE believes that g 818.150 

does provide sufficient national 

standards for the design, construction, 

maintenance, and reclamation of roads, 

while allowing consideration of die 

variations in site-specific conditions that 

can be encountered at different 

operations throughout the coal fields. 

These standards necessarily allow the 

regulatory authority the flexibility to 

identify the measures that are 

appropriate for the site-specific 

characteristics of each surface coal 

mining operation. In 1979, OSMRE has 

less then one year of experience 

regulating surface coal mining 

operations. Now, after ten years of 

experience, most of that in oversight of 

approved State programs, which deal 

with roads quite effectively, but through 

quite varied approaches, OSMRE feels 

tiiat the expansion of the statutory 

language being promulgated today is 

fully adequate the ensure that statutory 

standards are met. 

The same commenter and another 

commenter particularly noted the 

removal of the phrase "minimize the 

diminution to or degradation of the 

quality or quantity of surface and 

ground-water systems" from 

g 816.150(b)(5) of the 1983 rule. The 

commenters suggested that specific 

language for protection of both quantity 

and quality of surface and groundwater 

systems from adverse impacts of roads 

should be reinstated into die final rule. 

A tiiird commenter was concerned that 

the water quality and quantity 

provisions removed from g 816.150(b)(5) 

of the remanded and suspended 1983 

regulations were not adequately covered 

in other regulations. 

OSMRE did not propose a provision 

specifically addressing the impact of 

roads on the quantity and quality of 

surface and groundwater systems, such 

as that contained in the remanded and 

suspended 1983 rule. Adequate 

standards to ensure compliance with 

section 515(b)(17) of die Act are 

provided by the other provisions of 

gg 816/817.150(b) and by 30 CFR 780.21 

and 784.14. After considering the 

comments, OSMRE does not believe that 

adding such a standard specifically for 

roads would add to the effectiveness of 

this rule. 

One commenter suggested that the 

final rule.should be clarified to ensure 

that it includes performance standards 

for roads tiiat will protect all private 

property from damage. The commenter 

wanted to insure that all private 

properties are protected and not just 

those areas listed in section 522(e) of 

SMCRA. Another commenter argued 

that inserting into g 816.150(b)(6) the 

lands Usted in section 522(e)(1) of the 

Act inserts unsuitability criteria into this 

performance standard. The commenter 

maintained diat OSMRE lacks authority 

to include die Ust in g 818.150(b)(6). Two 

commenters suggested that the list be 

deleted because these lands already 

have provisions for special 

consideration. 

Final g 816.150(b)(6) requires the 

operator to protect both private property 

and public property, placing special 

emphasis on certain types of public 

property. OSMRE has enumerated those 

areas covered by the mining 

prohibitions of section 522(e)(1) of the 

Act to ensure that special consideration 

is given these public properties. This 

enumeration does not remove the 

operator's requirement to protect other 

public property or private property as 

required by section 515(b)(17). OSMRE 

does not agree that including the list of 

areas covered by section 522(e)(1) of the 

Act in § 816.150(b)(6) constitutes an 

insertion of unsuitability criteria. 

OSMRE believes that inclusion of these 

specific areas in § 816.150(b)(6) 

appropriately emphasizes the 

importance attached to such areas by 

Congress in drafting the Act, without 

providing less protection for other public 

a d , U i ...i.fc.. _.._l_h____ .. dOA ._____iH .iti.M.IIM i i ali .UUka 
P.14 

4520& Pederal-Register / VoL 53? No. 218 / Tuesday; •November 8. 198& / Rules and Regulation* 

'

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Iff 

l:.-i 

&< 

and private property under this 

provision. 

One commenter was concerned that 

§ 818.150(b) would require the 

reconstruction of existing permitted 

roads causing extensive environmenta) 

damage. The commenter suggested diat 

the regulatory audiority should be able 

to waive certain performance standards, 

e.g. drainage control, cut and fUl slopes, 

and lane widths, as along as erosion and 

stream sedimentation are controlled. 

OSMRE did not include such a waiver 

provision in the final rule. In accordance 

with 30 CFR 701.11(e), existing 

structures, including roads, diat meet the 

performance standards may be 

exempted from meeting die design 

requirements. To the extent that changes 

may be required by a regulatory 

audiority to bring existing permitted 

roads into compliance with this rule, no 

significant reconstruction and expense 

or increased environmental harm is 

expected. Existing permitted roads 

should already be in compliance with 

the performance standards of a State or 

Federal regulatory program. 

One commenter noted that 

§ 818.150(b) refers to erosion 

requirements for roads, but lacks 

sediment control standards. The 

commenter argued that without some 

guidance it would be difficult for states 

to be "no less effective" in parallel 

provisions of their regulations. 

OSMRE did not accept this comment 

OSMRE believes tiiat adequate 

perfonnance standards for sediment -

control can be found in §S 816/ 

817.150(b). These standards are folly 

consistent widi die requirements of 

section 515(b)(17) of uie Act OSMRE 

recognizes that die mechanisms for 

achieving that standard vary widely 

over the wide range of topographic, 

climatological and geologic conditions, 

and also vary according to die uses of 

the roads, where tiiese standards will be 

appUed. OSMRE therefore feels further 

guidance is not appropriate or 

necessary. States may or may not 

choose to elaborate upon this guidance 

in ways specific to the conditions in 

those States. So long as die required 

results are achieved in actual, 

implementation, such elaboration is at 

the States's discretion. 

One commenter was unsure if the 

perfonnance standards in § 816.150(b) 

were intended to relieve coal mine 

operators of die general requirements to 

meet effluent limitations. The 

commenter thought tiiat 30 CFR 816.46, 

which prescribes performance standards 

for siltation structures, excluded roadsfrom meeting effluent limits and 

wondered if § 816.150(b) could be 

interpreted the same way. Another 

commenter was confused about die 

application of performance standards 

for drainage control systems for roads. 

The commenter noted that, under 30 

CFR 816.46(a)(2), drainage from roads 

for which the upstream area is not 

otherwise disturbed by the operator is 

exempt from the requirement of passing 

through a siltation structure. The 

commenter, however, also noted diat the 

disturbance associated with roads must 

be conducted to minimize disturbance to 

the hydrologic balance as required in 

§ § 816.41 and 816.45. The commenter 

was concerned as to what the specific 

drainage control requirements are for 

roads. 

Effluent limitations only apply to point, 

source discharges regulated under 

section 402 of the Clean Water Act. 

Section 818.150(b) does not require die 

creation of a point source. However, if a 

point source is created, a National 

Pollutant Discharge Elimination System 

permit would be required and effluent 

limits would apply. A variety of other 

mechanisms may also be and are being 

used to provide die required protection 

of water quaUty. 

Two commenters were concerned 

with the word "prevent" in 

§ 818.150(b)(1) through (3) and (6). it was 

suggested tiiat it be deleted because rt 

was the intent of Congress to have 

OSMRE set attainable standards which 

would "minimize" erosion and 

"prevent" damage. The commenters felt 

that it would be unrealistic to require an 

operator to "prevent" erosion, siltation, 

and air poUution. Anotiier commenter 

favored deletion of boui "control" and 

"prevent" 

OSMRE did not accept the suggestions 

and beUeves tiiat the language in 

S 816.150(b) is consistent witii die 

language in the Act at section 515(b)(17) 

which requires the operation as a 

minimum to insure that die construction, 

maintenance, and postmining conditions 

of access roads into and across the site 

of operations will control or prevent 

erosion and sUtation, poUution of water, 

damage to fish or wildlife or their 

habitat or pubUc or private property 

(Emphasis added). It should be noted . 

that § 816.150(b) allows the regulatory 

authority the flexibility to determine the 

level of protection necessary to control 

or prevent erosion; sUtation, or air 

pollution attendant to erosion. 

One commenter suggested tiiat the 

language in 5 816.150(b)(1) with respect 

to exposed surfaces be clarified by 

adding die word "road" between 

exposed and surfaces. 

OSMRE does not agree that this 

clarification is necessary because those 

surfaces exposed in connection with 

construction, use, reconstruction, 

maintenance, or reclamation of the road 

are properly subject to this requirement. 

Four commenters responded with 

respect to the control of air poUution. 

One commenter supported tiie language 

in S 818.150(b)(1), and asserted that 

OSMRE is die appropriate agency to 

regulate fugitive dust at coal mining 

operations. One commenter requested 

that OSMRE change the language in 

§ 816.150(b) in its entirety. This 

commenter was concerned that air and 

water quality standards were being 

intermixed. The commenter also noted 

that previous district court decisions 

clarified tiiat Congress only intended to 

regulate air poUution related to erosion. 

One commenter stated that the issue of 

responsibiUty in the control of air 

pollution attendant to erosion and 

pollution caused by fugitive dust as part 

of a surface mining operation is 

currently on appeal. Anotiier commenter 

was concerned that including specific 

air poUution control measures in 

g 816.150(b) would lead to tiiese 

measures being interpreted as die 

exclusive means necessary for 

compliance. It was suggested that these 

measures be kept only in the preamble. 

OSMRE believes that the language in . 

§ 816.150(b)(1) is in harmony with the 

intent of Congress. It ia appropriate for 

OSMRE to regulate road dust consistent 

with section 515{b)(17) of die Act 

because of die need to protect pubUc 

and private property. It is being appUed 

here in a manner consistent with section 

515(b)(4)- The U.S. Court of Appeals for 

the District of Columbia Circuit recently 

issued a decision concerning Uie issue of 

responsibility for control of air poUution 

attendant to erosion (NWF v. Hodel, 839 

F.2nd 694,785). The appeals court 

concluded tiiat the Secretary's 

interpretation of section 515(b)(4) of the 

Act as controlling only die unpacts of 

mining on air quality due to erosion, is 

reasonable. OSMRE also believes diat 

the use of the terms "erosion," 

"siltation," and "air pollution attendant 

to erosion" in } 818.150(b)(1) is 

appropriate in considering what 

measures are necessary to meet die 

performance standards. OSMRE does 

not intend this Ust of measures to 

exclude the use of otiier measures for 

controlling dust attendant to erosion and 

does not intend that the language tn 

§ 816.150(b)(1) be interpreted that way. 

The phrase "such as" makes that clear. 

The EPA noted that proposed 

§ 816.150(b)(1) stated that road should 

be buUt, used and maintained to control 

"air poUution attendant to erosion" and 

that die preamble to the proposal 

explained that this phrase includes 

"road dust, as wel) as dust occurring on 
P.15 

Fsdsral Register / Vol. 53, No. 216 / Tuesday^November 8, 1988' / Rules and Regulations 4520)3' 

other exposed surfaces" (52 FR 42262, 

November 3,1987). EPA suggested that 

the explanation should be included in 

the final rule language to clarify that the 

performance standards apply not only to 

wind erosion, but also to dust created by 

vehicle traffic. 

OSMRE has accepted this comment 

and made the suggested change to 

clarify the applicability of the final rule. 

EPA noted also that proposed 

g 816.150(b)(1) stated that air pollution 

should be controUed "in accordance 

with current, prudent engineering 

practices." EPA stated its belief that the 

final rule should specify reasonable 

control levels and techniques suitable 

under various conditions and requested 

the addition of a technical guidance 

document that would address current 

practices and their effectiveness under 

varying conditions. The agency 

suggested that the technical guidance 

could be developed in the near future 

and be incorporated into the regulation 

by reference at a later date. 

After giving this recommendation 

serious consideration, OSMRE decided 

not to accept it. Differing geologic and 

climatic factors associated with the coal 

fields throughout the nation make it 

impractical to develop a single set of 

dust control standards and techniques 

with nationwide appUcabiUty. In 

accordance witii the concept of primacy, 

whereby the States have the primary 

responsibility for the regulation of coal 

mining, this final rule gives State 

regulatory authorities the flexibility to 

estabUsh guidance that is appropriate to 

regional and local conditions. On 

request, OSMRE wtil provide technical 

assistance to the States concerning the 

development or appUcation of dust 

control standards and techniques. The 

primary purpose of this rule is to make 

clear that regulatory authorities have 

both the authority and obligation to 

regulate road dust while recognizing 

tiiat operations have a wide range of 

options avaUable^ircontroUing it 

As to die EPA's concern about theeffectiveness of the treatment methods 

employed by die operator,; before a 

mining pennit is issued, the regulatory 

authority has' to approve die air 

poUution-control plan submitted by a 

perpit applicant under 30 CFR 780.15 or 

7C^3. In addition, monthly inspections 

by^sgulatory authority inspectors under 

. 3OiSMaa0.ll and inspections resulting 

from citizens' complaints filed anytime 

under 30 CFR 840.15 and Part 842 will 

ensure that potential on-the-ground 

problems are resolved quickly and 

efficiently; 

One commenter was concerned that 

g 816.150(b)(5) would prohibit placement 

of any road anywhere it would alter 

flow in a streambed or drainage 

channel. The commenter asserted that 

the terms "streambed or drainage 

channel" could be construed so as to 

include even the smallest ephemeral 

flow. The commenter suggested a 

language change that would replace 

"streambed or drainage channel" with 

"intermittent or perennial stream." 

OSMRE did not accept this suggested 

language change since it is not 

consistent with section 515(b)(18) of die 

Act which uses the phrase "streambed 

or drainage channel." Further, OSMRE 

does not agree that g 816.150(b)(5) 

would necessarily prohibit placement of 

any road where it would alter flow in 

streambeds or drainage channels 

because the language in this section 

states that the road shaU refrain from 

"seriously" altering the normal flow. 

OSMRE does not regard this language as 

a strict prohibition on the placement of 

roads that would cause minor 

alterations in normal flow. 

Sections 816.150(c)/817.150(c) Design 

and Construction Limits and 

Establishment of Design Criteria 

Final g 816.150(c) requires tiiat roads 

be designed and constructed or 

reconstructed to meet certain criteria in 

order to ensure environmental 

protection appropriate for their planned 

duration and use. These criteria include 

Umits for grade, width, surface 

materials, surface drainage control, 

culvert placement, and culvert size, that 

are in accordance with current, prudent 

engineering practices, and any other 

necessary design criteria estabUshed by 

the regulatory authority. Section 

816.150(c) is identical to the proposed 

rule. 

One commenter agreed with the 

deletion of the provisions addressing 

road safety that had previously been 

included in the 1983 rule, noting that 

road safety for users is the 

responsibility of the Mine Safety and 

Health Administration. 

One commenter raised the question of 

what standards for road width, drainage 

control, culvert placement etc wtil 

apply in Federal program States since 

OSMRE sets forth no more detaUed 

Umits for Federal program States under 

g 816.150(c). The commenter was also 

concerned about inadequate regulation 

by States with "no more stringent" 

provisions in the absence of standards 

in the Federal rules. 

Concerning Federal program States, 

where OSMRE is the regulatory 

authority, OSMRE will consider on a 

program-by program basis unique 

factors and regional and local 

conditions present in each State and 

will propose and promulgate 

appropriate standards in accordance 

witii 30 CFR Part 736 if it determines 

that program-wide design criteria are 

needed. Concerning States thut have 

legislatively prohibited their regulatory 

authorities from promulgating 

regulations more stringent than the 

Federal regulations, OSMRE considers 

that the regulations adopted today 

provide a reasonable expansion of the 

statutory requirements and are adequate 

for effective regulation of surface coal 

mining operations. Further expansion 

and additional regulations may be 

promulgated at the States' discretion. 

OSMRE does not believe that use of 

design standards by a State in its rules 

would necessarily be more stringent 

tiian the Federal rules. This issue was 

also addressed by the Secretary in his 

March 5,1984 brief in Round II, 

referenced earlier. 

One commenter suggested that the 

design, construction, and certification of 

ancillary roads should also be done by a 

qualified registered professional to 

ensure proper drainage control and 

stabitity of road embarkments. 

OSMRE believes die suggested 

requirement to have ancillary roads 

designed, constructed, and certified by a 

qualified professional is not necessary 

to ensure compliance with die 

performance standards because such 

roads have much less potential for 

environmental harm than do primary 

roads because of differences in size, use 

and/or duration. AncUlary roads are 

generally only one lane for small 

vehicles, thereby involving far less 

earthmoving in their construction. 

Vehicles using anciUary roads are 

generally small witii light loads and 

ground pressures. Therefore, to require 

certification of plans and drawings for 

ancillary roads would place a burden on 

the operator that is unnecessary to 

provide the protection called for in 

section 515(b)(17) of the Act. 

One commenter was concerned that 

the use of the term "surface materials" 

in g 818.150(c) implied a requirement for 

surfacing aU roads. The commenter did 

not feel that a "blanket" surfacing 

requirement was appropriate because in 

many instances the natural surface of a 

road was sufficient to meet die 

appropriate performance standards. The 

commenter suggested tiiat the words 

"any necessary" should precede the 

term "surface materials" in the text of 

the rule. 

OSMRE does not agree that the 

addition of these words is necessary 

because the language in g 818.150(c) 

states tiiat surface materials appropriate 

for the planned use of the road need to 

be incorporated into the design and 
P.16 

I' 

452P&, Federal Register / Vol. 53; No. 216 / Tuesday, November 8, 1988 / Rules and Regulations 

construction or reconstruction to ensure 

environmental protection. This 

requirement does not preclude a finding 

by the regulatory authority that the 

natural surface of die road meets die 

performance standards. 

Section B18.150(d)/817.150(d) Location 

Fmal S 816.150(d) sets tiie 

performance standards for the location 

of aU roads. These standards prohibit 

the placement of any part of a road in 

the channel of an intermittent or 

perennial stream unless die regulatory 

authority specifically approves such an 

action in accordance with appUcable 

§ § 818.41 through 816.43 and 816.57. 

Also, roads must be located to minimize 

downstream sedimentation and 

flooding. The language in § 816.150(d) is 

identical to die proposed rule except 

that reference to the performance 

standards in accordance with which the 

regulatory audiority may approve 

placement bf a road in the channel of a 

stream (8 9 816.41 through 81&43 and 

816.57) have been added to die final rule 

for clarity..: 

One commenter argued tiiat the 

languagein tihe proposedrule prohibits 

the use-of 'structures such as bridges or 

culverts. Tbe commenter considered this 

a drastic departure from die Act and 

beyond die intent of section 515(b)(18). 

The commenter provided suggested 

language to better reflect uie statutory 

requirements. The suggested language 

read, "(1) No road shaU be built in a 

streambed or drainage channeL" 

OSMRE fid not accept die- > 

commenter's suggestion. Section -

816.150(d) is not intended to establish a 

strict prohibition on the use of structures 

such as bridges and culverts. Section 

818.43, Diversions, allows the regulatory 

authority to specify design criteria for 

the diversion of intermittent and 

perennial streams. Section 816^43 also 

requires the regulatory authority to 

make a finding that die environmental, 

resources of the stream wtil not be 

adverselyaffectedvi -.. _. -.: 

One commpnter noted that' > 

§ 81&15G(d)(l) does not contain a cross 

reference to f-818.57 as does . • 

i 81dM51(d)(5). The commenter was: 

unclear il tins was intended, or was an 

inadvertent omission.by OSMRE.. 

En response to this comment OSMRE 

has reviewed die reference to hydrologic. 

balance protection and stream buffer 

performance standards in proposed 

§ 818.151(d)(5) and determined that 

those perfonnance standards should be 

applied to die location of any road in the 

channel of an intermittent or perennial 

stream, aa well as to the alteration or 

relocation of natural stream channels, by 

primary roads. Therefore, OSMRE has 

added the reference to the performance 

standards (§§816.41 through 818.43 and 

816.57) to § 816.150(d)(1) of the final rule. 

Section 818.150(e)/817.150(e) 

Maintenance 

Final § 816.150(e) governs die general 

maintenance responsibilities of the 

operator. Under this section, a road 

must be maintained to meet the 

performance standards and any 

additional design criteria estabUshed by 

the regulatory authority. Section 

816.150(e) also requires that in the event 

of damage due to a catastrophic event, a 

road must be repaired as soon as is 

practicable after the damage has 

occurred. The language in § 816.150(e) is 

identical to the proposed rule. 

One commenter supported the 

language found in § 818.150(e) because it 

no longer contains the requirement from 

previous remanded and suspended rules 

to maintain a road throughout its life. 

The commenter agrees that the Act does 

not impose a perpetual responsibility for 

roads in die postmining use period. In 

contrast, one commenter was concerned 

with the deletion of the requirement to 

maintain a road throughout itB life. The 

commenter argued that operators are 

liable under uie Act for roads and 

suggested reinstatement of the 

requirement to maintain roads 

throughout their tife. 

OSMRE did not propose this 

requirement because, under the Act an 

operator has no responsibiUty for 

maintenance of the postmining land use 

after the performance bond has been 

properly released for the area in which 

the road is located For this same 

reason, the suggestion tiiat die 

requirement be added was not accepted. 

Section 818.150(f)/817.150(f) 

Reclamation 

Final § 816.150(f) provides that a road 

which is not to be retained under an 

approved postmining land use must be -

reclaimed as soon as practicable after it 

is no longer needed for mining and 

reclamation operations. The reclamation 

activities tiiat are required by this 

paragraph include: (1) Closing die road 

to traffic; (2) removing aU bridges and 

culverts unless approved as part of the 

postmining land use; (3) removing or 

otherwise disposing of road-surfacing 

materials that are incompatible witii die 

postmining land use and the 

revegetation requirements of die 

regulation; (4) reshaping cut and fill 

slopes as necessary to be compatible 

witii the postmining land use and to 

complement the natural drainage 

pattern of the surrounding terrain; (5) 

protecting the natural drainage pattern 

by installing dikes or cross drains as 

necessary to control surface runoff and 

erosion; and (6) scarifying or ripping the 

roadbed, replacing topsoil or substitute 

material, and revegetating disturbed 

surfaces in accordance with 30 CFR 

816.22 and 816.111-818.116. As discussed 

below, the final rule differs from the 

proposal in that the phrase "as soon as 

practicable" has replaced the word 

"immediately." 

Three commenters were concerned 

with the word "immediately" in the 

phrase "shall be reclaimed in 

accordance widi the approved 

reclamation plan immediately after it is 

no longer needed for mining and 

reclamation operations." The 

commenters beUeved it to be an 

unreasonable requirement that is 

subject to varying interpretations. The 

commenters noted that it may actually 

be environmentally undesirable for a 

road to be reclaimed during certain 

times ofthe year, due to problems with 

runoff and sediment control. One of 

these commenters argued that the 

immediate reclamation of a road would 

eliminate needed flexibihty and 

preclude reuse of the road if mining and 

reclamation conditions change. One 

commenter noted that immediate 

reclamation is not needed to enforce the 

intent of the regulation. 

OSMRE agrees with die commenters 

and has substituted the phrase "as soon 

as practicable" for the word 

"immediately" in § 816.150(f) of the final 

rule. OSMRE beUeves tiiat the phrase 

"as soon as practicable" is in keeping 

with the intentions of the Act as 

expressed in sections 102(e), 515(b) (2) 

and (16), which basically require 

reclamation to take place as 

contemporaneously as practicable with 

mining. However, this requirement does 

not become operable until die road is no 

longer needed. To postpone reclamation, 

the permittee must show a future need 

for or continuing use of the road as a 

part of his operation. The operator is 

required to maintain the road during this 

period. The reclamation schedule 

necessary to meet the requirement for 

timely reclamation should be contained 

in the permit and be consistent with the. 

intent of the Act by providing for 

reclamation which is as 

contemporaneous as practicable, 

minimizing unreasonable delays in 

reclamation implementation and 

proceeding in an environmentally sound 

manner. 

One commenter beUeved that 

proposed § 818.150(f) should aUow coal 

exploration roads to remain if they 

comply with the postmining land use. In 

the commenter's opinion, if retained, 

these roads would aUow for better 

m 
P.17 

Federal Register / Vol. 53, No. 216 / Tuesday, Novembejrjt 1988 / Rules and Regulations 45205 

management of die forest reserve 

through better access for timber 

management and fire fighting activities. 

OSMRE agrees that the retention of 

roads can be beneficial and has made 

provision in 30 CFR Part 815 for the 

retention of coal exploration roads in 

limited circumstances. Specifically, 

§ 815.15(d) provides an exemption from 

the requirement that aU facUities and 

equipment be promptly removed from 

the exploration area when they are no 

longer needed If the regulatory 

authority determines that the facUities 

or equipment wUl provide additional 

environmental data, reduce or control 

the on-site and off-site effects of the 

exploration operation, or facilitate 

future surface raining and reclamation 

operations, die facUities (roads) and 

equipment may be retained. The 

operator must apply to the regulatory 

authority for approval of the retention 

on a case-by-case basis. To the extent 

that coal exploration roads meet one of 

these three criteria, they may be 

exempted from the reclamation 

requirement However, it should be 

noted that die concept of an approved 

pos training, land use is not appUcable to 

. coal exploration activities since 

exploration is not mining. Therefore, 

OSMRE did not accept tiie suggested 

change. 

One commenter suggested that some 

language should be added to § 816.150(f) 

to clarify that both primary and 

ancUlary roads are considered to be part 

of the surface coal mining operation and 

subject to the performance standards. 

OSMRE agrees that both primary and 

ancUlary roads are part of the surface 

coal mining operation. However, 

OSMRE beUeves that die wording of 

§ 816.150, Roads: General, is sufficiently 

clear in applying that section to all 

roads as defined in 30 CFR 701.5. 

Therefore, no change has been made. 

One commenter supported the phrase 

"as necessary" in the requirement in 

§ 818.150(f)(4) thafcreclamation of a road 

include "reshapirig Ctt^and fill slopes as 

necessary to becomparrble with tiie 

postmining landuse arid revegetation 

requirements.* Tne^cpmmenter noted 

that diis language recognizes that it is 

not always an approporiate requirement 

to redisturb an aresnfor reshaping where 

stability of a slope has been assured to 

the satisfaction of tiie regulatory 

authority; In contrast one commenter 

-t

 objected to'the phrase "as necessary" 

because it dilutes or loosens the 

requirements contained in the remanded 

and suspended 1983 rule to reshape cut 

and Fdl slopes to be compatible with die 

postmining land use and to return the 

land to die approximate original 

contour.-

In developing the proposed rule 

OSMRE looked at how this issue was 

handled in the remanded and suspended 

1979 rule. OSMRE stated in the 

preamble to that final rule that 

"obliteration of the road might in some 

circumstances create extensive 

environmental harm due to excessive 

redisturbance of the road prism. 

Therefore, the concept of blending the 

road into the topography was 

incorporated [into the final rule] based 

on comments received and work 

practices on thousands of miles of roads 

by the U.S. Forest Service" (Citation 

omitted.) (44 FR 14901,15259, March 13, 

1979). OSMRE went on to emphasize 

"that this blending is not to be construed 

as a variance from the requirement to 

restore the area to approximate original 

contour." Also, the statutory definition 

of "approximate original contour" 

allows the retention of tenances 

(section 701(2) of the Act). For these 

reasons, OSMRE proposed language 

similar to that used in 1979. After 

consideration of the comments, OSMRE 

feels that tiie position stated in 1979 and 

repeated here is still vaUd Thus, 

OSMRE did not delete the phrase "as 

necessary" from the final rule. 

One commenter supported proposed 

§ 816.150(f)(8), which allows the use of 

topsoil.substitutes in reclaiming 

roadbeds. The commenter stated that 

dus wtil accommodate the beneficial 

practice of redistributing topsoU taken 

from road areas for use in permit areas 

where it wtil promote better postmining 

land use. 

OSMRE agrees that topsoil substitutes 

may be used in reclaiming roads and 

emphasizes that any such substitute 

material is subject to the requirements 

of § 816.22. 

G. Sections 818.151/817.151 Primary 

Roads 

Final § 818.151 establishes a set of 

performance standards for the design, 

construction, and maintenance of 

primary roads, in addition to those 

already estabUshed for aU roads in 

$.816,150. These performance standards 

are identical to tiie proposed rule except 

for § 818.151(b) and (d) which have been 

changed to clarify tiie intent of the rule. 

Sections 816.151{a)/817.151(a) 

Certification 

Final § 816.151(a) is identical to the 

proposed rule and requires that primary 

road construction or reconstruction be 

certified in a report to the regulatory 

authority by a qualified registered_ 

professional engineer or land surveyor. 

The requirement for professional 

certification is intended to assure that 

the road is properly constructed to meet 

the environmental protection standards 

of the Act. Certification by a qualified 

registered professional land surveyor is 

allowed in any State which authorizes 

land surveyors to certify the 

construction or reconstruction of 

primary roads. This provision is based 

on the November 4,1983. amendment to 

the Act (Sec. 115, Pub. L. 98-146,97 Stat. 

938 (1983)) which provides tiiat "not 

withstanding section 507(b) (14) of the 

Surface Mining Control and Reclamation 

Act of 1977 (Pub. L. 95-87), cross 

sections, maps, or plans of land to be 

affected by an appUcation for a surface 

mining and reclamation pennit shaU be 

prepared by or under the direction of a 

qualified registered professional 

engineer or geologist or quaUfied 

registered professional land surveyor in 

any State which authorizes land 

surveyors to prepare and certify such 

maps or plans." A registered land 

surveyor must have experience in the 

design and construction of roads in 

order to be eligible to provide diis 

certification. This authority is given only 

to the extent aUowed under State law. 

This requirement is equivalent to the 

experience requirement for registered 

engineers. Section 816.151(a) requires 

the certifying professional to prepare 

and submit to the regulatory authority a 

report certifying diat the primary road 

was constructed or reconstructed as 

designed and in accordance with die 

approved plan. 

One commenter did not agree with the 

language that autiiorizes land surveyors 

to certify the construction or 

reconstruction of primary roads. The 

commenter noted that the design and 

engineering of primary roads is outside 

the area of expertise of land surveyors. 

The commenter was particularly 

concerned with the adequacy of a land 

surveyor's expertise for roads in steep 

slope areas and the frequent use of 

primary roads by coal hauling vehicles. 

OSMRE recognizes the fact that not 

aU land surveyors have adequate 

expertise to certify road construction or 

reconstruction and. witii this in mind, 

uses the terms qualified and 

experienced in the design and 

construction of roads. OSMRE feels that 

this language covering die experience 

and qualifications of die certifying 

individual and the additional 

requirement that the State must 

authorize a land surveyor to certify 

' primary road construction or 

reconstruction provides adequate 

justification. In view of the legislative 

history of the November 3,1983 

amendment to the Act, OSMRE has 

concluded that the Congress intended 

the amendment to authorize certification 
P.18 

e«»fl Ragjgteg / Vol.- 53,. No.-218 / Tuesday, November 8, 1988 / Rules and Regulations 

;? 

j. 

because it is a step so intimately related 

to preparation of cross-sections, maps 

and plans that authority is necessarily 

implied by the terms of the legislation. 

As discussed by Senator Byrd on the 

floor of the Senate (129 Cong. Rec. 

S12411, Sept. 19,1983), the purpose of 

the amendment was to remedy 

"conflicts with State laws [where the 

Act] preempts registered land surveyors 

from a lead role in the preparation and 

certification of maps, plans, and crosssections." 

OSMRE believes that Congress 

intended to authorize qualified, 

registered, professional land surveyors 

to perform both of these functions as 

lead professionals. If land surveyors 

were authorized merely to prepare and 

certify cross sections, maps, and plans, 

but were not authorized to certify 

associated construction or 

reconstruction, their status as lead 

professionals would be seriously 

impaired or negated. Thus, this rule 

authorizes qualified, registered, 

professional land surveyors to certify 

the construction or reconstruction of 

primary roads. 

One commenter noted that a 

registered land surveyor would have to 

have experience in the design and 

construction of roads in order to have a 

State authorize the land surveyor to 

certify such work. The commenter 

indicated the language "with experience 

in the design and construction of road" 

to be unnecessary. 

OSMRE beUeves that the language in 

§ 818;151(a) is necessary to ensure that 

only these land surveyors with 

experience in the design and 

construction of roads be aUowed to 

certify this work. 

One commenter suggested that 

landscape architects should also be 

aUowed to certify the construction and 

reconstruction of roads. The commenter 

noted that the education and experience 

of landscape architects coupled witii 

their registration would qualify them to 

develop plans and manage the 

construction of aU types of roads. 

associated with coal mining. - r:,~. 

OSMRE does not have the statutory 

authority to allow landscape architects 

to certify cross sections, maps and plans 

or to authorize them fo certify that tiie 

construction or reconstruction of 

primary roads was in accordance with . 

those plans. . 

Four commenters recommended that 

the requirement in g 816.151(a) to have 

the certified report sent to the regulatory 

authority should be changed to allow 

the report to be filed at the mine site or 

in a report to the regulatory authority. 

The commenters noted that the report 

should be available to the inspectors at 

the mine site and, by filing the report at 

the mine site, it would reduce the 

amount of paperwork that the regulatory 

authority would have to handle. 

OSMRE believes that it is necessary 

to have the certified report sent to the 

regulatory authority so that any 

problems can be brought to the State's 

attention and so that the State has the 

opportunity to adequately monitor 

conective action that may be necessary. 

Having the information on file in the 

State office also provides advance 

information to inspectors before 

beginning an inspection trip. Although 

OSMRE is sensitive to the concern that 

regulatory authorities' paperwork 

burdens should be reduced where 

possible, OSMRE does not agree that 

the limited time involved in handling 

this certified report outweighs the need 

to have it available at the regulatory 

authority's office. 

Sections 816.151(b)/817.151(b) Safety 

Factor 

Final § 816.151(b) requires that aU 

embankments have a minimum static 

safety factor of 1.3 or meet the 

requirements of g 780.37(c). This section 

applies only to primary roads. Rather 

than specifying particular design criteria 

for road embankments, the 1.3 factor of 

safety estabUshes a performance 

standard that must be attained. The 

operator has the flexibility to select the 

particular design for the road that meets 

this standard. Related g 780.37(c) 

enables the regulatory authority to 

establish engineering design standards 

through the State program approval 

process in lieu of engineering tests that 

would be performed to establish 

compliance with the safety factor. The 

language in final g 816.151(b) has been 

changed from the proposed language by 

adding a cross-reference to g 780.37(c) 

for clarity. 

One commenter did not agree that a 

safety factor for road embankments was 

necessary, except for large 

embankments and those embankments 

which could endanger life or property 

upon fatiure. The commenter suggested 

new language for g 816.151(b) that 

would remove the minimum safety 

factor requirement and require that 

primary road embankments be designed 

in accordance with standard engineering 

practice so as to be stable. 

Two commenters agreed that the 

safety factor should only be applicable 

to primary roads. The commenters noted 

that, in general, ancillary roads are 

much smaller and less frequentiy used 

than primary roads. They also noted 

that, if an ancillary road would 

experience a slope or fill stability 

problem, the extent of these failures and 

the significance of the associated 

environmental impacts would be 

minimal. 

One commenter argued that it is 

necessary to apply the minimum safety 

factor to ancillary as well as primary 

roads. The commenter argued further 

that the differentiation between primary 

and ancillary roads was not based on 

the potential for environmental effects 

to the point of being consistent with the 

concept in the 1979 rule, that minimum 

safety factors should apply only to 

roads that have greater environmental 

effects. The commenter specifically 

noted that the existence of high 

embankments, a factor specifically 

discussed by OSMRE as related to the 

degree of environmental risk from roads, 

is not a factor which is considered in the 

proposed distinction between primary 

and ancillary roads. As a result, the 

commenter concluded, ancillary roads 

with high embankments in steep slope 

areas, tiie failure of which could have 

serious environmental effects, would not 

be subject to static safety requirements. 

As discussed previously in the 

preamble to the road classification 

system, there are substantial differences 

between primary and ancillary roads 

concerning road width (and thus the 

amount of cut and fill involved in steep 

slopes), ground pressure from traffic, 

and vehicle frequency that justify the 

application of the static safety factor to 

ensure stable primary roads tiiat will 

meet the mandate of section 515(b)(17) 

of the Act. This reduces the potential for 

slips or failures on those heavily used 

roads. On the other hand, the nanow, 

lightly travelled ancillary roads do not 

typically have the high embankments 

associated with primary roads, even in 

steep slope areas, nor are they subject 

to the frequent impact of high ground 

pressures. Therefore, OSMRE is 

finalizing the rule as proposed. 

A commenter expressed confusion 

about the fact that proposed gg 780.37(c) 

and 784.24(c) appeared to allow the 

regulatory authority to develop design 

standards in lieu of the minimum safety 

factor. The commenter argued that the 

language in the proposal was confusing 

and should be clarified concerning the 

regulatory authority's flexibility to 

develop design standards under 

§ 780.37(c) in lieu of minimum safety 

factor requirements. Three additional 

commenters suggested language changes 

to § 818.151(b) to help clarify the fact 

that regulatory authorities can establish 

engineering design standards in lieu of 

the minimum safety factor requirement. 

Section 780.37(c) allows the regulatory 

authority to establish engineering design 

standards for primary roads in lieu of 
P.19 

the engineering tests that otherwise 

would be performed to establish 

compliance with the minimum static 

safety factor of 1.3 for all primary road 

embankments. This provision enables 

the regulatory audiority and the 

operator to save time and effort during 

the design and review of road plans and 

also ensures protection of the 

environment through the appUcation of 

standards that have proved effective for 

the conditions prevalent in that State. 

Section 780.37(c) was not crossreferenced in proposed § 816.151(b), and 

OSMRE recognizes, in response to the 

comments, that the connection needs 

emphasis. Final § 816.151(b) includes a 

cross-reference to § 780.37(c) to clarify 

that embankments must either have a 

minimum safety factor of 1.3 or, 

alternatively, meet the design standards 

developed in accordance with 

§ 78037(c). 

Sections 818.151(c)/817.151(c) Location 

Fmal § 818.151(c) requires primary 

roads to be located insofar as is 

practicable, on the most stable avaUable 

surfaces to minimize erosion. Section 

816.151(c)(2) prohibits primary roads 

from using stream fords on perennial or 

intermittent streams unless specifically 

approved by the regulatory authority as 

temporary routes during road 

construction. These provisions are 

identical to the proposed rule. 

One commenter was concerned about 

the difference inthe language of 

proposed g 816.151(c) and that of the 

1979 regulations (44 FR 15418, March 13, 

1979). The commenter noted tiiat the 

language in 816.151(c) states that 

primary roads are located insofar as is 

"practicable," on the most stable 

avaUable surface, while the 1979 

regulations require roads to be placed 

on the most stable surface insofar as 

"possible." TSe commenter proposed 

that, hrthe alternative, roads be 

required to be located on ridges. 

OSMRE disagrees. In developing the 

proposed rule, OSMRE chose to use the 

word "practicable" because it provides 

an adequate standard for road location 

to achieve the required stabUity when 

applied along witii the requirement for a 

IJ static safety factor. OSMRE is 

concerned that requiring location of 

primary roads, insofar as is "possible," 

on the most stable surface available 

could result in roads being 

unnecessarily lengthened. In the 

preambles to both the 1979 (44 FR 14901, 

15248, March 13,1S79) and 1983 (48 FR 

22110,22120, May 18,1983) suspended 

rules, OSMRE expressed concem that 

road location requirements might unduly 

lengthen roads as well. Concerning the 

commenter's alternative, OSMRE agrees 

that ridges are often the most stable 

surface available and should be used for 

roads where practicable. However, 

ridges are not always located where the 

road is intended to go. Additionally, in 

appropriate circumstances, wildlife 

disturbance can be reduced by locating 

roads below ridgelines (Ambrose, er ai., 

p. 14). Since this alternative would not 

allow sufficient flexibiUty in the location 

of roads, OSMRE did not accept it 

Sections 816.151(d)/817.151(d) Drainage 

Control 

Final § 816.151(d) requires that surface 

water drainage for each primary road be 

controUed in accordance with the 

approved reclamation and operations 

plan specified in § 789.37(a). 

Final section (d)(1) requires that 

primary roads be constructed or 

reconstructed and maintained to have 

adequate drainage control by using 

structures such as, but not Umited to, 

bridges, ditches, cross drains and ditch 

relief drains. Section (d)(1) also requires 

that at a minimum, drainage control 

systems be designed to safely pass the 

peak runoff from a ten-year, six-hour 

precipitation event, or greater event as 

specified by the regulatory authority. 

The language in final § 816.151(d)(1) has. 

been changed from the proposed 

language in an effort to clarify ito intent 

because proposed g 816.151(d)(1) could 

be read to mean that the regulatory 

authority may specify

 a lesser 

precipitation event than the ten-year, 

six-hour event To clarify that the tenyear, six-hour event is the minimum 

precipation event that the drainage 

control system must be able to handle, 

the final rule allows only modification to 

a higher standard by the regulatory 

authority. 

Final g 818.151(d)(2) requires that 

drainage pipes and culverts be instaUed 

as designed, and maintained in a free 

and operating condition and to prevent 

or control erosion at inlets and outlets. 

Final § 818.151(d)(3) requires that 

drainage ditches be constructed and 

maintained to prevent uncontrolled 

drainage over the road surface and 

embankment Final % 818.151(d)(4) 

requires that culverts be instaUed and 

maintained to sustain die vertical soil 

pressure, the passive resistance of the 

foundation, and die weight of vehicles 

using the road. Final § 818.(d){5) requires 

that natural stream channels not be 

altered or relocated without prior 

approval of the regulatory authority in 

accordance with %% 818.41 through 

816.43 and 816.57. 

Final § 816.151(d)(6) requires that, 

except as provided in section (c)(2), 

stream channel crossings for perennial 

and intermittent streams be 

accomplished using bridges, culverts, 

low-water crossings, or other structures 

designed, constructed and maintained 

using current prudent engineering 

practices. The requirement for drainage 

structures at perennial and intermittent 

streams is included to ensure 

consistency with § 818.150(d)(1) of this 

part. By using current, prudent 

engineering practices to design, 

construct, and maintain crossings, the 

hydrologic and environmental balance 

of the stream is protected while the 

crossing is in place. Section 816.151(d)(6) 

includes language referring to perennial 

and intermittent streams for consistency 

with the language of perfonnance 

standard in g 818.150(d). 

Several commenters requested a 

clarification ao to the intent of proposed 

§ 818.151(d)(1) which stated, "The 

drainage contiol system shaU be 

designed to safely pass the peak runoff 

from a ten-year, six-hour or greater 

precipitation event unless otherwise 

specified by the regulatory authority." 

The confusion involved whether the 

regulatory audiority could specify only a 

precipitation event greater than tiie tenyear, six-Show atarm. or any greater or 

lesser precipitation event. One 

comment®? suggested that die words "or 

greater pjedpitBtiom" be deleted so the 

regulatory authority could based on 

site-cpsdEc conditions, reduce the 

design storm.betorw the ten-year, sixhour event 

Fimal 8 818.151(dJ(l) provides 

flexibility to regukitcsy authorities to 

account fo? particular situations likely to 

be encountered ows? the life of the mine 

or related to specific dcamstream 

conditions. The rule allows for 

modification by the regulatory authority 

in those situations when the ten-year, 

six-hour precipitation- event is not 

appropriate. In order-to eliminate the 

confusion created by the language in 

proposed § 818.151(d)(1), OSMRE has 

changed the final rule to read "(1) Each 

primary road shall be constructed or 

reconstructed and maintained to have 

adequate draimags control, using 

structures o^dn ao, mst not limited to, 

bridges, ditches, cross drains, and ditch 

relief drams. The drainage control 

system shall be designed to safely pass 

the peak runoff from a ten-year, six-hour 

precipitation event or e greater event as 

specified by me regulatory authority." 

This will ensure diat reductions in tiie 

required storm event are not made. 

Several commenters suggested that 

the design precipitation event for the 

drainage control system should be 

modified from the ten-year, six-hour 

event in the proposed rule. One 

commenter suggested the use of the 25-

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year, 24-hour storm event tiie ten-year, 

six-hour event or another event 

specified by the regulatory authority. 

The commenter maintained that the 25-

year, 24-hour event is consistent with 

current local practices and has not 

caused any problems. Another 

commenter stated that the ten-year, sixhour event is excessive, and the oneyear, 24-hour event should be used to 

design the drainage control system. The 

commenter argued that no problems 

have been experienced witii excessive 

water overtopping the road surface 

during major storm events when the 

one-year, 24-hour standard was used. 

Two other commenters were satisfied -

that die ten-year, six-hour storm would 

be appropriate. . 

Another commenter contended that 

the drainage control systems should be 

designed for a fen-year, 24-hour storm 

event rather than a ten-year, six-hour 

event because better data is avaUable 

for tiie 24-hour events. Also, the. 

commenter indicated that the peak 

flows for ten-year, 24-hour events and 

ten-year, six-hour events do not differ 

significantly. One commenter beUeved 

that the ten-year, six-hour eventstandard could create compliance 

problems since some states currently 

design for a 25-year, 24-hour event. If the 

ten-year, six-hour event produces higher 

peak runoff volumes than the 25-year, 

24-hour event tiie commenter . ... , 

maintained tiiat existing approved roads 

could be found ia non-compUance. (See 

the discussion imdss General Comments 

concerning existing structures.) 

OSMRE beUeves diat the ten-year, 

six-hour precipitation event is . 

appropriate for drainage control systems 

for primary roads. This design event 

makes the road rules consistent with the 

rules for diversions in g 816.43. OSMRE 

recognizes that for some basins,, 

depending on location, the 24-hour 

duration storm may result in a runoff 

volume somewhat higher than the sixhour storm for die same area (44 FR. «j 

15207, March 13,1979). However, for 

most mining situations, a six-hour event 

is more likely fo result in a higher peak -• 

flow. See die Final Environmental - • * ' 

Statement OSM-EIS^-1: Supplement, , 

Volume 1: Analysis, p. IV-17. For a'<--

given storm frequency, the time of • 

concentration and watershed shape canbe more influential in determining the 

peak flow than the storm duration. 

Therefore, in most cases the differences 

in any increased volume of peak flow 

will be minor from a practical design 

and construction standpoint. Any 

computed increase in peak flow volume 

would most likely not result in any 

significant change in flow depthor flow 

velocity and, conespondingly, any 

alteration in the design of the drainage 

control system. Thus, OSMRE did not 

find any compelling reasons to change 

the proposed design event standard in 

response to comments on the proposed 

rule. 

One commenter asserted that 

drainage control systems designed to 

pass the peak runoff from a ten-year, 

six-hour or greater precipitation event 

as required in proposed g 816.151(d)(1), 

would be inadequate. The commenter 

argued that drainage control systems for 

ancillary roads, especially those with 

high embankments and those in steep 

slope areas, should be required to be 

designed to safely pass the peak runoff 

from some precipitation event that is 

greater than the ten-year, six-hour 

storm. The commenter was also 

particularly concerned with long-term or 

permanent roads where there is 

potential danger to health and/or safety 

or significant environmental impacts. 

The commenter suggested that drainage 

control systems for long-term roads 

have a minimum of a 25-year 

precipitation event, and permanent 

roads have a minimum of a 100-year 

precipitation event. The commenter also 

suggested that drainage control systems 

on roads with high potential for injury or 

significant environmental damage 

should be designed to appropriate 

precipitation event standards. 

Another commenter suggested that 

there should be a distinction made in the 

design precipitation events for 

temporary water crossings versus 

permanent structures. The commenter 

argued that permanent structures have a 

longer intended life and should be 

designed accordingly. The commenter 

suggested that the design precipitation 

event for permanent structures should 

be the 100-year, six-hour event, with the 

exception for low-water crossings since 

they are designed to be overtopped. 

OSMRE believes that a minimum 

standard of a ten-year, six-hour 

precipitation event for the design of 

drainage control system is adequate to 

protect the public and the environment 

from sigmficant damage. The U.S. Army 

Corps of Engineers and State highway 

departments use ten-year storms for 

design purposes. The regulatory 

authority may specify a greater 

precipitation event as appropriate for 

site-specific conditions and situations. 

Concerning ancillary roads, OSMRE 

considers that the standards in final 

§ 816.150(b) (2) through (6) are adequate 

to protect the environment without 

details associated with the standards for 

primary roads. The standards in 

§ 816.150(b) allow the operator and the 

regulatory authority to use a variety of 

methods to minimize adverse 

environmental impacts from ancillary 

roads. 

One commenter suggested that 

proposed g 816.151(d)(1) be revised to 

delete the word "reconstructed." The 

commenter argued that roads in 

existence at the time that this 

rulemaking is adopted should not be 

required to be reconstructed. 

OSMRE does not agree. The word 

"reconstructed" in the context of this 

rule refers to those situations where an 

operator on his own initiative decides to 

upgrade or improve significantly a road 

by reconstructing it The application of 

these standards to existing roads is 

covered by the provisions of 30 CFR 

701.11(e), concerning existing structures. 

One commenter suggested that the 

word "avoid" in proposed 

§ 816.151(d)(2) be replaced by the word 

"control." The commenter noted that, 

because some erosion is unavoidable, 

the use of the word "avoid" makes it 

possible for an operator to meet this 

requirement. 

Since the language of section 

515[b)(17) of the Act requires control or 

prevention of erosion, not avoidance of 

erosion, OSMRE has deleted the word 

"avoid" and replaced it with "prevent or 

control" in the .final rule. 

One commenter noted that the 

performance standards for diversions 

are found in 30 CFR 816.43, but the 

definition of "diversion" in 30 CFR 701.5 

does not explicitly include stream 

channel crossings. The commenter 

suggested revising the definition of 

"diversion" to clarify that stream 

channel crossings (i.e., culverts, bridges, 

fords, etc.) are included in the definition 

and that the requirements of § 816.43 

apply to roads. The commenter also 

suggested that specific reclamation 

design criteria for restoration of channel 

crossings be added. 

The definition of "diversion" does not 

include stream channel crossings, and 

OSMRE does not agree that the 

definition should be changed. Culverts, 

bridges, and fords are man-made 

structures that cross a stream and do 

not "divert" water to a channel in a new 

location. OSMRE does not agree that 

specific design criteria for restoration of 

stream channel crossings should be 

Included in the final rule. The 

performance standards adopted today 

and other permanent program 

regulations, e.g. 30 CFR 816.43, are 

adequate to minimize environmental 

harm. Further, specific design criteria 

would limit the regulatory authority's 

flexibility in approving effective 

reclamation designs. 

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..... . —..••.•.. . 
P.21 

\ 

.Fsdegal RagteSag.-/ VoL 53. No. 218 / Tuesday, November. 8,4988; / Rules- aadS-Regtele^ons 

One commenter felt that the addition 

of low-water crossings to the Ust of 

structures that are allowed for stream 

crossings was not acceptable because of 

potential problems with erosion and 

increased sediment, and the fact that 

they are inundated by high flows. The 

commenter noted further that there is a 

need for detailed national standards for 

erosion prevention and sediment 

control. 

OSMRE notes that the regulations 

require that the operator prevent erosion 

and sediment problems with low-water 

crossings. Final g 818.151(d)(6) 

specifically states that "the regulatory 

authority shaU ensure that low-water 

crossings are designed, constructed, and 

maintained to prevent erosion of the 

structure or streambed and additional 

contributions of suspended solids to 

streamflow." OSMRE agrees that by 

design, low-water crossings will be 

inundated during high flows which will 

restrict their use. OSMRE does not agree 

that this creates a problem except that it 

necessarily will cause the operator to 

alter mining operations to accommodate 

the inundation. 

One commenter was concerned with 

the use of the word "prevent" in 

proposed g 816.151(d)(6) with respect to 

erosion associated with low-water 

structures. The commenter suggested 

that the word "prevent" be replaced by 

the word "control" because an operator 

cannot prevent erosion entirely. 

OSMRE kept the word "prevent" in 

final g 816.151(d)(8) because by design, a 

low-water structure will be inundated 

during high-water flow periods, and this 

high-water flow will have greater 

velocities and erosion potential than 

during periods of low water. Therefore, 

the design, construction, and 

maintenance of low-water structures 

must prevent erosion of the structure 

and streambed during aU anticipated 

flow conations. 

One commenter inquired if it was the 

intent of OSMRE to allow retention of 

low-water crossings as permanent 

structures.

 !'4-

OSMRE believes that the decision on 

. retention, of low-water crossings as 

permanent structures is the 

responsibility of the regulatory " 

authority/This decision must consider 

the requirements of 30 CFR 816.133 and 

other associated permanent structure 

performance requirements. 

Sections 816.151(e)/817.151(e) 

Surfeiting^ 

Filial g 816.151(e) is identical to the 

proposed rule and requires that primary 

roads be surfaced witii material 

approved by the regulatory authority as 

being sufficiently durable for the 

anticipated volume of trafic and the 

weight and speed of vehicles using the 

road. The final rule does not specify the 

kinds of materials which must be used 

for surfacing primary roads and does not 

list routine maintenance responsibilities 

for primary roads. Since the regulatory 

authority may approve only surfacing 

materials that meet the requirements of 

this section, it is not necessary to list the 

materials that may be used. The 

regulatory authority should have the 

flexibility to approve any material 

which will satisfy these requirements. 

The final rule establishes adequate 

maintenance requirements for all roads 

and. therefore, it is not necessary to 

establish separate requirements for 

primary roads. The regulatory authority 

may specify additional maintenance 

criteria for primary roads, as necessary. 

One commenter was concerned that 

the requirements in proposed 

§ 816.151(e) were too general. The 

commenter questioned if economics 

would be taken into account when the 

regulatory authority comes to a decision 

on the type of material that will be 

"sufficiently durable." The commenter 

raised the possibility that appropriate 

surface materials may not be available 

at or near the mine site, and the costs to 

obtain the required materials could be 

prohibitive. Two commenters argued 

that proposed § 816.151(e) was a 

"blanket" surfacing requirement that 

would, in every case, require some type 

of additional surface material. The 

commenters contended that, in many 

instances, the natural surface of the 

road may be sufficient to meet the 

performance standards. The 

commenters suggested that the language 

in § 816.151(e) be changed by taking out 

the phrase "approved by the regulatory 

authority." 

OSMRE does not foresee that a 

regulatory authority would take 

economics into account in approving 

road surfacing material. In the first 

place, the regulatory experience OSMRE 

has accumulated over the past ten years 

indicates that durable surfacing material 

is usually present in sufficient quantities 

at the vast majority of coal mining 

operations, particularly when used in 

association with periodic chemical 

treatment to maintain a compacted, 

dust-free surface. Secondly, the purpose 

of the provision is to protect the 

environment, that is, to ensure that the 

road surfacing material is sufficiently 

durable to avoid problems with 

excessive dust and erosion due to 

breakdown of the road surface. While 

OSMRE agrees that, in some instances, 

the natural surface of the road may be 

sufficient to meet the performance 

standards, the commenter's suggested 

change was not accepted. Final 

g 816.151(e) does not preclude the 

acceptability of the natural road surface 

in meeting the durability requirement 

One commenter objected to the lack 

of a justification for the requirement to 

have the surface materials approved in 

advance. 

OSMRE believes that the regulatory 

authority must review the type of 

surface material proposed for the 

construction of each primary road prior 

to the construction of the road. From a 

practical standpoint, prior approval will 

ensure that environmental damage does 

not result from surfacing with 

substandard material and will avoid the 

problems and costs associated with 

having to remove any substandard 

material and/or resurface the road. 

H. References 

In addition to the literature cited with 

previous rulemakings on this subject (43 

FR 41739, September 18,1978; 44 FR 

15245. March 13,1979; and 47 FR 16595, 

April 16,1982) which was used as 

general background material, the 

following items were used in the 

preparation of this final rule: 

Ambrose, R.E.. C.R. Hinkle, and C.R. 

Wenzel, 1983, Practices for protecting and 

enhancing fish and wildlife on coal surfacemined lands in the Southcehtral U.S., U.S. 

Department of the Interior, Fish and Wildlife 

Service, FWS/OBS-83/ll, 229 pp. 

Kaufman, W.K. and J.C. Ault, 1977, Design 

of Surface Mine Haulage Roads—A Manual, 

U.S. Department of the Interior, Bureau of 

Mines, Information Circular No. 8758, 88 pp. 

U.S. Department of the Interior, Office of 

Surface Mining Reclamation and 

Enforcement, 1983, Proposed revisions to the 

Permanent Program Regulations 

Implementing section 501(b) of the Surface 

Mining Control and Reclamation Act of 1977, 

Final Environmental Statement. OSM-EIS-1: 

Supplement, 3 vols. 

III. Procedural Matters 

Effect in Federal Program States and on 

Indian Lands 

The rule applies through crossreferencing, to those states with Federal 

progams. This includes CaUfomia (as of 

August 12,1988; 53 FR 26570, July 13. 

1988), Georgia, Idaho, Massachusetts, 

Michigan, North Carolina, Oregon, 

Rhode Island, South Dakota, Tennessee, 

and Washington. The Federal programs 

for these States appear at 30 CFR Parts 

905. 910. 912, 921, 922, 933, 937, 939, 941. 

942, and 947, respectively. The rule also 

applies, through cross-referencing, to 

Indian lands under the Federal program 

for Indian lands as provided in 30 CFR 

Part 750. 

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4EfoO Federal Register /, Vol. 58;{No. 218 / Tuesday. November 8, 1988 / Rules and Regulations 

Effect on State Programs 

FoUowing promulgation of die final 

rule, OSMRE wUl evaluate permanent 

State regulatory programs approved 

under section 503 of SMCRA to 

' determine whether any changes in these 

programs wtil be necessary. If the 

Director determines that certain State 

program provisions should be amended 

in order to be made no less effective 

than the revised Federal rules, the 

individual states wtil be notified in 

accordance with the provisions of 30 

CFR73&17. 

Executive Order 12291 

The Department of the Interior has 

examined tins final rule according to the 

criteria of Executive Order 12291 

(February 17,1981) and has determined 

that this is not a major rule and does not 

require a regulatory impact analysis. 

The final rule wtil impose only minor 

costs on the coal industry and coal . 

consumers because it emphasizes the 

use of performance standards instead of 

design criteria which wtil aUow 

operators to use the most cost-effective 

means of achieving die minimiim 

standards. 

Regulatory Flexibility Act 

The Department of.the Interior has 

also determined, pursuant to the 

Regulatory FlexibiUty Act 5 U.S.C. 801 

et seq., that diis final rule will not have 

a significant economic impact on a 

substantial number of small entities. The 

funds that a small operator will have to 

- invest in die construction of roads to 

comply, widi this final rule will only be 

minimally increased over what would 

normaUy be spent to ensure efficient 

transportation and minimal vehicle 

damage. The cost of building roads wtil 

be defrayed by lowered maintenance 

costs for roads and vehicles. The 

operator wiU also avoid losses from a 

shutdown of operations due to 

impassable roads. 

Federal Paperwork Reduction Act 

The information coUection 

requirements contained in S § 780.37 and 

78038 have been approved by die Office 

of Management and Budget (OMB} . 

under 44 U.S.C 3501 et seq. and 

assigned clearance number 1029-0038. 

The information coUection requirements 

contained in SS 784.24 and 784.30 have 

been approved by OMB under 44 U.S.C 

3501 et seq. and assigned clearance 

number 1029-0039. 

PubUc reporting burden far this 

information is estimated to average as 

foUows: S 780-37—17.0 hours, 3 780.38— 

12.0 hours, S 784.24—0.7 hours, and 

S 784.30—12.0 hours, per response, 

including die timre for reviewing 

instructions, searching existing data 

sources, gathering and maintaining the 

data needed, and completing and 

reviewing the coUection of information. 

Send comments regarding this burden 

estimate or any other aspect of this 

coUection information, including 

suggestions for reducing the burden, to 

Information Collection Clearance 

Officer, OSMRE, 1951 Constitution 

Avenue, NW., Washington, DC 20240; 

and the Office of Information and 

Regulatory Affairs, OMB, Washington, 

DC 20503. 

National Environmental Policy Act 

OSMRE has prepared an 

environmental assessment and has 

made a finding that the final rules wtil 

not significantly affect the quality of the 

human environment under section 

102(2) (C) of the National Environmental 

Policy Act of 1969, 42 U.S.C. 4332(2)(C). 

The environmental assessment is on file 

in the OSMRE Administrative Record, 

Room 5131,1100 L Street NW., 

Washington, DC. 

Agency Approval 

Section 516(a) requires that with 

regard to rules directed toward the 

surface effects of underground mining, 

OSMRE must obtain written 

concurrence from the head of the 

department which administers the 

Federal Mine Safety and Health Act of 

1977, the successor to the Federal Coal 

Mine Health and Safety Act of 1969. 

OSMRE has obtained the written 

concurrence of the Assistant Secretary 

for Mine Safety and Health. U.S. 

Department of Labor. 

Authors 

The authors of this rule are Robert A. 

Wiles, P.E.. and Donald E. Stump, Jr., 

P.E., with assistance from Patrick W. 

Boyd; OSMRE, 1951 Constitution 

Avenue, NW., Washington, DC 20240; 

Telephone: 202-343-1502 (Commercial 

or FTS). 

List of Subjects 

30 CFR Part 701 

Law enforcement Surface mining, 

Underground mining. 

30CFRPart780 

Reporting and recordkeeping 

requirements. Surface mining. 

30CFRPart784 

Reporting and recordkeeping 

requirements, Underground mining. 

30 CFR Part 815 

Reporting and recordkeeping 

requirements, Surface mining. 

30 CFR Part 818 

Environmental protection. Reporting 

and recordkeeping requirements. 

Surface mining. 

30 CFR Part 817 

Coal mining, Environmental 

protection, Reporting and recordkeeping 

requirements, Underground mining. 

Accordingly, 30 CFR Parts 701.780, 

784,815,818, and 817 are amended as 

set forth below: 

Dated: September 14,1988. -

). Steven Griles, 

Assistant Secretary—Land and Minerals 

Management 

PART 701—PERMANENT 

REGULATORY PROGRAM 

1. The authority citation for Part 701 is 

revised to read as foUows: 

Authority: Pub. L 95-87, 30 U.S.C 1201 et 

seg, as amended, and Pub. L. 100-34. 

§701.5 [Amended] 

2. In S 701.5, the definition of road is 

reinstated and revised to read as 

follows: 

Road means a surface right-of-way for 

purposes of travel by land vehicles used 

in surface coal mining and reclamation 

operations or coal exploration. A road 

consists of the entire area within the 

right-of-way, including the roadbed, 

shoulders, parking and side areas, 

approaches,Jitructures. ditches, and 

surface. The term includes access and. 

haulroads constructed, used, 

reconstructed, improved, or maintained 

for use in surface coal mining and 

reclamation operations or coal 

exploration, including use by coal 

hauling vehicles to and from transfer, 

processing, or storage areas. The term 

does not include ramps and routes of 

travel within the immediate mining area 

or within spoU or coal mine waste 

disposal areas. 

PART 780—SURFACE MINING PERMIT 

APPLICATIONS-MINIMUM 

REQUIREMENTS FOR RECLAMATION 

AND OPERATIONS PLAN 

3. The authority citation for Part 780 is, 

revised to read as foUows: 

Authority: Pub. L. 95-67, 30 U.S.C 1201 et 

seq., as amended; sec. 115 of Pub. L. 98-148, 

30 U.S.C. 1257; 16 U.S.C 470 et seq-: and Pub. 

L. 100-34. 

4. Section 780.37 is revised to read as 

follows: 
P.23 

f'V, 

•'•V 

eg / Vol. 53. NO. 218 /Tuesday, November 8,-1088/ Rules -and- Regulations 415211 

§780.37 Road oyotomo. . 

(a) Plans and drawings. Each 

applicant for a surface coal mining and 

reclamation permit shall submit plans 

and drawings for each road, as defined 

in g 701.5 of this chapter, to be 

constructed, used, or maintained within 

the proposed permit area. The plans and 

drawings shall— 

(1) Include a map, appropriate cross 

sections, design drawings and 

specifications for road widths, gradients, 

surfacing materials, cuts, fill 

embankments, culverts, bridges, 

drainage ditches, low-water crossings, 

and drainage structures; 

(2) Contain the drawings and 

specifications of each prpposed road 

that is located in the channel of an 

intermittent or perennial stream, as 

necessary for approval of the road by 

the regulatory authority in accordance 

witii g 818.150(d)(1) of this chapter; 

(3) Contain the drawings and 

specifications for each proposed ford of 

perennial or intermittent streams that is 

used as a temporary route, as necessary 

for approval of the ford by the 

regulatory authority in accordance with 

g 818.151(c)(2) of this chapter; 

(4) Contain a description of measures 

to be taken to obtain approval of the 

regulatory authority for alteration or 

relocation of a natural stream channel 

under g 816.151(d)(5) of this chapter; 

(5) Contain the drawings and 

specifications for each low-water 

crossing of perennial or intermittent 

stream channels so that the regulatory 

authority, can maximize the protection of 

the stream in accordance with 

g 816.151(d)(6) of this chapter and 

(6) Describe the plans to remove and 

reclaim each road tiiat would not be 

retained under an approved postmining 

land use, and the schedule for this 

removal and reclamation. 

(b) Primary road certification. The 

plans and,.drawings for each primary 

road shall be prepared by, or under the 

direction of, and certified by a qualified 

registered professional engineer, or in 

any State which authorizes land 

Surveyors to certify the design of. 

' primary roads a qualified registered 

. professional land surveyor, with 

experience inthe design and 

construction of roads, as meeting the 

y requirements of this chapter; current, 

. ra prudent engineering practices; and any 

design criteria established by the 

regulatory authority. 

(c) Standard design plans. The 

regulatory authority may establish 

engineering design standards for 

primary roads through the State program 

approval process, in lieu of engineering 

tests, to establish compliance with the 

minimum static safety factor of 1.3 for 

all embankments specified in 

§ 818.151(b) of this chapter. 

5. Section 780.38 is added to read as 

follows: 

§780.38 Support facilltloa 

Each applicant for a surface coal 

mining and reclamation permit shall 

submit a description, plans, and 

drawings for each support facility to be 

constructed, used, or maintained within 

the proposed permit area. The plans and 

drawings shall include a map, 

appropriate cross sections, design 

drawings, and specifications sufficient 

to demonstrate compliance with 

§ 816.181 of this chapter for each facility. 

PART 784—UN0ERGROUN© MMM©' 

PERMIT APPUCATIOMS=MIMIKlUM 

REQUIREMENTS FORI RECLAMATION 

AND OPERATIONS PLAN 

6. The authority citation for Part 784 is 

revised to read as follows: 

Authority: Pub. L. 95-87, 30 U.S.C. 1201 et 

seq., as amended; sec. 115 of Pub. L. 98-140, 

30 U.S.C. 1257; 18 U.S.C. 470 et seq.; and Pub. 

L. 100-34. 

7. Section 784.24 is revised to read as 

follows: 

§ 780.20 Road cystoma 

(a) Plans and drawings. Each 

applicant for an underground coal 

mining and reclamation permit shall 

submit plans and drawings for each 

road, as defined in g 701.5 of this 

chapter, to be constructed, used, or 

maintained within the proposed permit 

area. The plans and drawings shaU— 

(1) Include a map, appropriate cross 

sections, design drawings, and 

specifications for road widths, gradients, 

surfacing materials, cuts, fill 

embankments, culverts, bridges, 

drainage ditches, low-water crossings, 

and drainage structures; 

(2) Contain the drawings and 

specifications of each proposed road 

that is located in the channel of an 

intermittent or perennial stream, as 

necessary for approval of the road by 

the regulatory authority in accordance 

with § 817.150(d)(1) ofthis chapter; 

(3) Contain the drawings and 

specifications for each proposed ford of 

perennial or intermittent streams that is 

used as a temporary route, as necessary 

for approval of the ford by the 

regulatory authority in accordance with 

§ 817.151(c)(2) of this chapter; 

(4) Contain a description of measures 

to be taken to obtain approval of the 

regulatory authority for alteration or 

relocation of a natural stream channel 

under § 817.151(d)(5) of this chapter; 

(5) Contain the drawings and 

specifications for each low-water 

crossing of perennial or intermittent 

stream channels so that the regualtory 

authority can maximize the protection of 

the stream in accordance with 

g 817.151(d)(6) of this chapter; and 

(6) Describe the plans to remove and 

reclaim each road that would not be 

retained under an approved postmining 

land use, and the schedule for this 

removal and reclamation. 

(b) Primary road certification. The 

plans and drawings for each primary 

road shaU be prepared by, or under the 

direction of, and certified by a qualified 

registered professional engineer, or in 

any State which authorizes land 

surveyors to certify the design of 

primary roads a qualified registered 

professional land surveyor, experienced 

in the design and construction of roads, 

as meeting the requirements of this 

chapter; current, prudent engineering 

practices; and any design criteria 

established by the regulatory authority. 

(c) Standard design plans. The 

regulatory authority may establish 

engineering design standards for 

primary roads through the State program 

approval process, in lieu of engineering 

tests, to establish compliance with the 

minimum static safety factor of 1.3 for 

aU embankments specified ln 

g 817.151(b) of this chapter. 

8. Section 784.30 is added to read as . 

follows: 

g 78&SQ SujRpDrt fccHoo. 

Each appUcant for an underground 

coal mining and reclamation permit 

shall submit a description, plans, and 

drawings for each support faciUty to be 

constructed, used, or maintained within 

the proposed permit area. The plans and 

drawings shall include a map, 

appropriate cross sections, design 

drawings, and specifications sufficient 

to demonstrate compliance with 

§ 817.181 of this chapter for each facility. 

PART ©15—PERMANENT PROGRAM 

STANDARDS—COAL EKPLORATOON 

9. The authority citation for Part 815 is 

revised to read as follows: 

Authority: Pub. L. 95-87, U.S.C 1201 else., 

as amended; and Pub. t» 100-34. 

10. Section 815.15 is amended by 

revising paragraph (b) tojead as 

follows: 

§ 815.19 Portosroortco otejitfosreto Vc? cod 

(b) All roads or other transportation 

facilities used for coal exploration shall 

comply with the applicable provisions of 

gg 816.150 (b) through (f), 816.180, and 

818.181 of this chapter. 

v-
45212 Fsdtarsi! Keglstei? / VoL 53, No. 21® / Tuesday. November 8, 1983 / Rules and Regulations 

PERFORMANCE STAMDARDS= 

SURFACE MINING ACTMTISS 

11. The authority citation for Part 818 

is revised to read as follows: 

Authority: Pub. L 95-87, 30 U.S.C 1201 et 

seq., as amended; sec 115 of Pub. L 88-148, 

30 U.S.C. 1257; and Pub. L lCtt-34. 

12. Section 816.150 is reinstated and 

revised to read as follows: 

§610.15® Roods: garcarcflL 

(a) Road classification system. (1) 

Each road, as defined in g 701.5 of this 

chapter, shaU be classified as either a 

primary road or an ancUlary road. 

(2) A primary road is any road which 

is-

(i) Used for transporting coal or spoil; 

(ii) Frequentiy used for access or otiier 

purposes for a period in excess of six 

months; or 

(iii) To be retained for an approved 

postmining land use. 

(3) An ancillary road is any road not 

classified as a primary road. 

(b) Performance standards. Each road 

shall be located, designed, constructed, 

reconstructed, used, maintained, and. 

reclaimed so as to: 

(1) Control or prevent erosion,-

siltation, and the air poUution attendant 

to erosion, including road dust as weU 

as dust occurring on other exposed 

surfaces, by measures such as 

vegetating, watering, using chemical or 

other dust suppressants, or otherwise 

stabilizing aU exposed surfaces in 

accordance with current prudent 

engineering practices; 

(2) Control or prevent damage to fish, 

wildlife, or their habitat and related 

environmental values; 

(3) Control or prevent additional 

contributions of suspended solids to 

stream flow or runoff outside the pennit 

area; 

(4) Neither cause nor contribute to, 

directly or indirectly, the violation of 

State or Federal water quality standards 

applicable to receiving waters; 

(5) Refrain from seriously altering the 

normal flow of water in streambeds or 

drainage channels; 

(8) Prevent or control damage to 

public or private property, including die 

prevention or mitigation of adverse 

effects on lands within the boundaries 

of units of the National Park System, the 

National Wildlife Refuge System, die 

National System of Trails, the National 

Wilderness Preservation System, the 

Wild and Scenic Rivers System, 

including designated study rivers, and 

National Recreation Areas designated 

by Act of Congress; 

(7) Use nonacid- and nontoxic-forming 

substances in road surfacing. 

(c) Design and construction limits and 

establishment ofdssign criteria. To 

ensure environmental protection 

appropriate for their planned durational 

and use, including consideration of die 

type and size of equipment used, the' 

design and construction as 

reconstruction of roads shall incorporate 

appropriate Umits for grade, widui, 

surface materials, surface drainags 

control, culvert placement and culvert 

size, in accordance with current prudent 

engineering practices, and any 

necessary design criteria established by 

uie regulatory audiority. 

(d) Location. (1) No part of any road 

shall be located in die channel of an 

intermittent or perennial stream unless 

specificaUy approved by die regulatory 

audiority in accordance widi appUcable 

§§ 818.41 dirough 818.43 and 818.57 of 

this chapter. 

(2) Roads shall be located to minimize 

downstream sedimentation and 

flooding. 

(e) Maintenance. (1) A road shall be 

maintained to meet the perfonnance 

standards of tins part and any 

additional criteria specified by die 

regulatory authority. 

(2) A road damaged by a catastrophic 

event such as a flood or earthquake, 

shall be repaired as soon as is 

practicable after the damage has 

occurred. 

(f) Reclamation, A road not to be 

retained under an approved postmining. 

land use shaU be reclaimed in 

accordance witii die approved 

reclamation plan as soon as practicable 

after it is no longer needed for mining 

and reclamation operations. This 

reclamation shall include: 

(1) Closing the road to traffic; 

(2) Removing aU bridges and culverts 

unless approved as part of the 

postmining land use; 

(3) Removing or otherwise disposing 

of road-9urfacing materials diat are 

incompatible with the postmining land 

use and revegetation requirements; 

(4) Reshaping cut and fill slopes as 

necessary to be compatible witii the 

postmining land use and to complement 

die natural drainage pattern of die 

surrounding terrain; 

(5) Protecting the natural drainage 

patterns by installing dikes or erosa 

drains as necessary to control surface 

runoff and erosion; and 

(6) Scarifying or ripping die roadbed; 

replacing topsoil or substitute material, 

and revegetating disturbed surfaces in 

accordance with gg 816.22 and 816.111 

through 816.116 of this chapter. 

12. Section 816.151 is reinstated and 

revised to read as follows: 

Primary roads shall meet die 

requirements of section 818.150 and tiie 

additional requirements of thio section. 

(a) Certification. The construction or 

reconstruction of primary roads shall be 

certified in a report to uie regulatory 

authority by a qualified registered 

professional engineer, or in any State 

which autiiorizes land surveyors to 

certify the construction ©? 

reconstruction of primary roads, a 

qualified registered professional land 

surveyor witii experience in die design 

and construction of roads. The report 

. shaU indicate diat the primary road has 

been constructed or reconstructed ao 

designed and in accordance with the 

approved plan. 

(b) Safety Factor. Each primary road 

embankment shall have a minimum 

static factor of 1.3 or meet die 

requirements estabUshed under 

§ 780.37(c) of this chapter. 

(c) Location. (1) To minimize erosion, 

a primary road shaU be located, insofar 

as-is practicable, on the most stable 

available surface. 

(2) Fords or perennial or intermittent 

streams by primary roads are prohibited 

unless they are specifically approved by 

the regulatory audiority as temporary 

routes during periods of road 

construction. 

(d) Drainage control. In accordance 

with the approved plan— 

(1) Bach primary road shall be 

constructed or reconstructed, and 

maintained to have adequate drainage 

control, using structures such as, but not 

limited to bridges, ditches, cross drains, 

and ditch relief drains. The drainage 

control system shaU be designed to 

safely pass the peak runoff from a 10-

year, 8-hour precipitation event, or 

greater event as specified by die 

regulatory audiority; 

(2) Drainage pipes and culverts shall 

be installed as designed, and 

maintained in a free and operating 

condition and to prevent or control 

erosion at inlets and outlets; 

(3) Drainage ditches shaU be 

constructed and maintained to prevent 

uncontrolled drainage over the road 

surface and embankment; 

(4) Culverts shaU be instaUed and 

maintained to sustain the vertical soil 

pressure, the passive resistance of the 

foundation, and the weight of vehicles 

using the road; 

(5) Natural stream channels shaU not 

be altered or relocated without the prior 

approval of die regulatory authority in 

accordance with applicable g 818.41 

through 816.43 and 816.57 of this chapter; 

and 
P.25 

Federal Register / Vol. No. 216 / Tuesday, Novej.'o.;r 8, V_J8 j Rules and Regulations 45213 

-riTg-gw—a—ar—a—•——MraaciaBSftifl MIIII i <r^jsMmse^^2sxammBmMmmmmmmtmmmmmmmmmaamrmmmtmmgmrr^a 

„. (6) Except as provided in paragraph 

(c)(2) of this section structures for 

perennial or intermittent stream channel 

crossings shall be made using bridges, 

culverts, low-water crossings, or other 

structures designed, constructed, and 

maintained using current, prudent 

engineering practices. The regulatoiy 

audiority shall ensure diat low-water 

crossings are designed, constructed, and 

maintained to prevent erosion ofthe 

structure or streambed and additional 

contributions of suspended solids to 

steamflow. 

(2) Surfacing. Primary roads shall be 

surfaced with material approved by the 

regulatory authority as being sufficiently 

durable for the anticipated volume of 

traffic and the weight and speed of 

vehicles using the road. 

PART 817—PERMANENT PROGRAM 

PERFORMANCE STANDARDSUNDERGROUND MINING ACTIVITIES 

13. The audiority citation for Part 817 

is revised to read as follows: 

Authority: Pub. 1_. 95-87, 30 U.S.C. 1201 et 

seq., as amended; sec. 115 of Pub. L. 98-146, 

30 U.S.C. 1257; and Pub. L 100-34. 

14. Section 817.150 is reinstated and 

revised to read as follows: 

§817.150 Roads: general. 

(a) Road classification system. (1) 

Each road, as defined in § 701.5 of this 

chapter, shall be classified as either a 

primary road or an ancillary road. 

(2) A primary road is any road which 

is— 

(i) Used for transporting coal or spoil; 

(ii) Frequentiy used for access or other 

purposes for a period in excess of six 

months; or 

(iii) To be retained for an approval 

postmining land use. 

(3) An ancillary road is any road not 

classified as a primary road 

(b) Performance standards. Each road 

shall be located, designed, constructed, 

reconstructed, used, maintained, and 

reclaimed so as to: 

(1) Control or prevent erosion, 

siltation. and the air pollution attendant 

to erosion, including road dust and dust 

occurring on other exposed surfaces, by 

measures such as vegetating, watering, 

using chemical or other dust 

suppressants, or otherwise stabilizing all 

exposed surfaces in accordance with 

current prudent engineering practices; 

(2) Control or prevent damage to fish, 

wildlife, or otheir habitat and related 

environmental values; 

(3) Control or prevent additional 

contributions of suspended solids to 

streamflow or runoff outside the permit 

area; 

(4) Neiuier cause nor contribute to. 

directly or indirectly, the violation of 

State or Federal water quality standard 

appUcable to receiving waters; 

(5) Refrain from seriously altering the 

normal flow of water in streambeds or 

drainage channels; 

(6) Prevent or control damage to 

public or private property, including the 

prevention or mitigation of adverse 

effects on lands within the boundaries 

of units of die National Park System, die 

National Wildlife Refuge System, the 

National System of Trails, die National 

WUderness Preservation System, the 

Wtid and Scenic Rivers System, 

including designated study rivers, and 

National Recreation Areas designated 

by Act of Congress; and 

(7) Use nonacid- and nontoxic-forming 

substances in road surfacing. 

(c) Design and construction limits and 

establishment of design criteria. To 

ensure environmental protection 

appropriate for their planned duration 

and use, including consideration of the 

type and size of equipment used, the 

design and construction or 

reconstruction of roads shall incorporate 

appropriate limits for grade, width, 

surface materials, surface drainage 

control, culvert placement, and culvert 

size, in accordance widi current, prudent 

engineering practices, and any 

necessary design criteria established by 

the regulatory authority. 

(d) Location. (1) No part of any road 

shaU be located in the channel of an 

intermittent or perennial stream unless 

specifically approved by the regulatory 

authority in accordance with applicable 

§§ 817.41 through 817.43 and 817.57 of 

this chapter. 

(2) Roads shall be located to minimize 

downstream sedimentation and 

flooding. 

(e) Maintenance. (1) A road shall be 

maintained to meet the performance 

standards of this part and any 

additional criteria specified by the 

regulatory authority; 

(2) A road damaged by a catastrophic 

event such as a flood or earthquake, 

shall be repaired as soon as is 

practicable after the damage has 

occurred. 

. (f) Reclamation. A road not to be 

retained under an approved postmining 

land use shall be reclaimed in 

accordance with the approved 

reclamation plan as soon as practicable 

after it is no longer needed for mining 

and reclamation operations. This 

reclamation shall include: 

(1) Closing the road to traffic; 

(2) Removing aU bridges and culverts 

unless approved as part of the 

postmining land use; 

(3) Removing or otherwise disposing 

of road-surfacing materials that are 

incompatible with the postmining land 

use and revegetation requirements; 

(4) Reshaping cut and fill slopes as 

necessary to be compatible with the 

postmining land use and to complement 

the natural drainage pattern of the 

surrounding terrain; 

(5) Protecting die natural drainage 

patterns by installing dikes or cross 

drains as necessary to control surface 

runoff and erosion; and 

(6) Scarifying or ripping the roadbed, 

replacing topsoil or substitute material 

and revegetating disturbed surfaces in 

accordance with g§ 617.22 and 817.111 

through 817.116 of this chapter. 

15. Section 817.151 is reinstated and 

revised to read as follows: 

§ 817.151 Primary roads. 

Primary roads shall meet the 

requirements of _ 817.150 and the 

additional requirements of this section. 

(a) Certification. The construction or 

reconstruction of primary roads shaU be 

certified in a report to the regulatory 

authority by a qualified registered 

professional engineer, or in any State 

which authorizes land surveyors to 

certify the construction or 

reconstruction of primary roads, a 

qualified registered professional land 

surveyor, with experience in the design 

and construction of roads. The report 

shall indicate that the primary road has 

been constructed or reconstructed as 

designed and in accordance with the 

approved plan. 

(b) Safety Factor. Each primary road 

embankment shall have a minimum 

static factor of 1.3 or meet the 

requirements established under 

§ 784.24(c). 

(c) Location. (1) To minimize erosion, 

a primary road shall be located, insofar 

as is practicable, on the most stable 

available surface. 

(2) Fords of perennial or intermittent 

streams by primary roads are prohibited 

unless they are specifically approved by 

the regulatory authority as temporary 

routes during periods of road 

construction. 

(d) Drainage control. In accordance 

with the approved plan— 

(1) Each primary road shall be 

constructed or reconstructed, and 

maintained to have adequate drainage 

control, using structures such as, but not 

limited to bridges, ditches, cross drains, 

and ditch relief drains. The drainage 

control system shall be designed to 

safely pass the peak runoff from a 10-

year, 6-hour precipitation event, or 

greater event as specified by the 

regulatory authority; 
45214 Federal Register / Vol. 53, No. 216 / Tuesday, November 8, 1988 / Rules and Regulations 

(2) Drainage pipes and culverts shall 

be installed as designed, and 

maintained in a free and operating 

condition and to prevent or control 

erosion at inlets and outlets; 

(3) Drainage ditches shaU be 

constructed and maintained to prevent 

uncontrolled drainage over the road 

surface and embankment; 

(4) Culverts shaU be instaUed and 

maintained to sustain the vertical soU 

pressure, the passive resistance of the 

foundation, and the weight of vehicles 

using die road; 

(5) Natural stream channels shall not 

be altered or relocated witiiout the prior 

approval of the regulatory authority in 

accordance with applicable §§ 818.41 

through 816.43 and 816.57 of diis chapter; 

and 

(6) Except as provided in paragraph 

(c)(2) of diis section, structures for 

perennial or intermittent stream channel 

crossings shaU be made using bridges, 

culverts, low-water crossings, or other 

structures designed, constructed, and 

maintained using current prudent 

engineering practices. The regulatory 

authority shaU ensure tiiat low-water 

crossings ara designed, constructed, and 

maintained to prevent erosion of die 

. structure or streambed and additional 

contributions of suspended solids to -

streamflow. 

(e) Surfacing. Primary roads shall be 

surfaced widi material approved by the 

regulatory authority as being sufficiently 

durable for the anticipated volume of 

traffic and the weight and speed of 

vehicles using the road. 

(FR Doc. 88-25688 Filed 11-7-68; 8:45 amj 

BlUJNa CODE 4310-OS-M