FEDERAL REGISTER: 48 FR 43956 (September 26, 1983)

DEPARTMENT OF THE INTERIOR

AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM)

30 CFR Parts 701, 779, 780, 783, 784, 816, and 817

Surface Coal Mining and Reclamation Operations; 

Permanent Regulatory Program Hydrology Permitting and Performance Standards; Geology Permitting

ACTION: Final rules. 

SUMMARY: The Office of Surface Mining Reclamation and Enforcement (OSM) is issuing final rules governing the 

hydrology and geology permitting requirements and hydrology performance standards under the Surface Mining Control 

and Reclamation Act of 1977 (the Act). The rules consolidate previously scattered requirements and clarify the 

hydrologic and geologic requirements stipulated in the Act. The rules focus primarily on premining data collection and 

analysis, monitoring, reclamation planning to ensure protection of the hydrologic balance, and design of diversion 

structures. Greater flexibility is provided to both the operator and the regulatory authority to design and implement 

surface mining and reclamation operations which address site-specific hydrologic and geologic conditions. 

EFFECTIVE DATE: This regulation is effective October 26, 1983. The incorporation by reference of the publication 

listed in the regulations is approved by the Director of the Federal Register as of October 26, 1983. 

FOR FURTHER INFORMATION CONTACT: John Mosesso, Division of Engineering Analysis, Office of Surface 

Mining, U.S. Department of the Interior, 1951 Constitution Avenue, NW., Washington, DC 20240; (202) 343-2168. 

SUPPLEMENTARY INFORMATION: 

I. Introduction 

II. Background 

III. Discussion of Comments and Rules Adopted 

 A. Definitions 

 B. Geologic Information 

 C. General Comments on Hydrology Rules 

 D. Hydrology Permitting Rules 

 E. Hydrologic Balance Protection Performance Standards 

 F. Diversions 

IV. Procedural Matters 

 

I. INTRODUCTION 

 Protection of the integrity of the Nation's surface- and ground-water resources from the potential adverse impacts of 

coal mining is one of the major objectives of the Surface Mining Control and Reclamation Act of 1977, 30 U.S.C. 1201

et seq. (the Act). SECTIONS 507 (b)(11), (b)(14) and (b)(15), 508 (a)(5), and (a)(13), 510(b)(3), 515(b)(10), 516 

(b)(4), (b)(9) and (b)(12), 517 (b)(2), and 717 of the Act are the primary hydrologic and geologic requirements for 

permitting, mining, and reclaiming a surface coal mining operation. 

 Hydrologic and geologic systems are, in most cases, exceedingly complex, and their protection from the adverse 

impacts of mining activities is often difficult and subject to uncertainty. OSM believes that the best approach to meeting 

the goals of the Act is through a premining analysis of the potential impacts of mining on the hydrologic balance, 

application of environmentally protective mining and reclamation practices, and monitoring. To this end, the final rules 

establish basic permitting and performance standards with nationwide applicability, provide operators the opportunity to 

apply cost-effective hydrologic and engineering techniques to their particular mining situation, and provide the regulatory 

authority latitude to prescribe, on a case-by-case basis, additional elements for permit conditions which it deems 

necessary to protect the hydrologic balance. 

 The protections prescribed by the Act for surface- and ground-water resources from both surface and underground 

mining are similar. The final permitting requirements for hydrologic and geologic information for surface mining (Part 
780) and underground mining (Part 784) are essentially identical. The hydrologic performance standards for surface 

mining activities (Part 816) and underground mining activities (Part 817) for the most part are also identical. The primary 

differences appear in the performance standards for discharges from underground mines and in not requiring the 

identification and replacement of water supplies that may by impacted by underground mine operations. The following 

discussion of the rules adopted and the public comments received will reference surface mining requirements unless a 

specific issue concerning underground mining was raised or is otherwise appropriate. However, the discussion is equally 

applicable to the requirements for both surface and underground mines. 

 

II. BACKGROUND 

 On June 25, 1982 (47 FR 27712), OSM proposed rules for hydrology and geology permitting requirements and

hydrology performance standards. This action was taken primarily to clarify the essential hydrologic and geologic 

concepts contained in the Act, to reorganize the rules so that hydrology and geology requirements would be set in 

distinct sections rather than being dispersed throughout the permanent program, and to take advantage of the experience 

gained by OSM over the years by way of updating the rules and providing improved direction to the regulatory 

authorities and applicants. 

 The proposed rules were based upon and referenced OSM's Permanent Regulatory Program promulgated on March 

13, 1979 (44 FR 14902, 15311). Readers should consult the cited Federal Register notices for additional background 

information regarding hydrologic and geologic requirements and supporting technical references. The reader should also 

note that, as a result of the district court's decision in In re: Permanent Surface Mining Regulation Litigation, C.A. No. 

79-1144 (D.D.C. May 16, 1980), certain of the March 13, 1979, permanent program rules for hydrology were amended 

or suspended. See 45 FR 51548, August 4, 1980. Where appropriate these final rules address the court's decision in that 

case. 

 Numerous modifications to the rules affecting hydrology were proposed in the June 25 Federal Register notice 

referenced above. Discussion of the public comments received are addressed in Part III of this preamble. 

 Public meetings were held in Washington, D.C., on July 1, 20, 23, and 27, 1982 and in Pittsburgh, Pennsylvania, on 

July 22 and 23, 1982. On July 13, 1982 (47 FR 30266), OSM issued a notice closing the public comment period for the 

hydrology and geology rules, effective August 25, 1982. During the comment period, OSM received comments from 

sources representing industry, environmental groups, associations, and Federal and State agencies. The OSM 

Administrative Record for these rules was reopened to allow insertion of the comments made at the oversight hearings 

held by the House Interior and Insular Affairs Committee on September 9 and 10, 1982. 

 

III. DISCUSSION OF COMMENTS AND RULES ADOPTED 

A. Definitions 

B. Geologic Information 

C. General Comments on Hydrology Rules 

D. Hydrology Permitting Rules 

E. Hydrologic Balance Protection Performance Standards 

F. Diversions 

 

A. DEFINITIONS (SECTION 701.5) 

 Definitions for the terms "cumulative impact area" and "gravity discharge" were proposed in the June 25, 1982, 

rulemaking. A third term, "potentially impacted offsite areas," was proposed in an earlier OSM rulemaking (47 FR 42-43,

January 4, 1982). The phrase "potentially impacted offsite areas" was used throughout the June 25, 1982, proposed rules. 

However, in response to comments, OSM did not adopt the proposed definition. Rather, the final rule uses the term 

"adjacent area," which was defined in a Federal Register notice issued on April 5, 1983. (48 FR 14814-14822). The 

reader is referred to the preamble on that final rule for a discussion of the comments received and the meaning of the 

term "adjacent area." 

 1. CUMULATIVE IMPACT AREA. Final Section 701.5 defines "cumulative impact area" to mean "the area, 

including the permit area, within which impacts resulting from the proposed operation may interact with the impacts of all 

anticipated mining on surface- and ground-water systems." The definition for "cumulative impact area" also contains an 
explanation of "anticipated mining" as including, at a minimum, the entire projected lives through bond release of the 

proposed operation; all existing operations; any operation for which a permit application has been submitted to the 

regulatory authority; and all operations required to meet diligent development requirements for leased Federal coal for 

which there is actual mine development information available. 

 Thus, the final definition for "cumulative impact area" consists of two parts: The first sets out the extent of the area 

which the regulatory authority will evaluate when preparing the required cumulative hydrologic impact assessment 

(CHIA). This area will include those areas where there would be an interaction between the hydrologic impacts from the 

proposed operation and the impacts of all other anticipated mining. The second part of the definition clarifies the meaning 

of the term "anticipated mining" and identifies the minimum extent of mining, both existing and proposed, which must be 

included in the CHIA evaluation. 

 The final definition modifies the proposal to clarify the definition and to emphasize the delineation of minimum 

boundaries for the area to be covered by the CHIA. Included among the changes are the following: The introductory 

phrase in the proposal referring to "the assessment of probable cumulative hydrologic impacts" has been removed as 

unnecessary. OSM has chosen the phrase "may interact with" to describe the relationship between the impacts on 

hydrology which the proposed operation may have with the impacts of all anticipated mining. This addresses criticism 

that OSM used the same words in the definition that it was attempting to define. The proposed phrase "surface- and 

ground-water basin(s)" has been replaced with the phrase "on surface- and ground-water systems." The former phrase 

was inappropriate as it suggested consideration of areas which could be well beyond the reach of any impacts on 

hydrology that need be studied by the regulatory authority in order for it to fulfill its statutory obligations. The phrase 

adopted is flexible enough to allow the evaluation of the full reach of impacts on hydrologic systems without suggesting 

unnecessary analysis. 

 Several alternatives were included in the preamble to the proposal for the definition of "anticipated mining" as follows: 

 The proposed language, which included all existing operations, the proposed operation over its entire projected life, 

and any operations which the regulatory authority reasonably expected to be permitted during the projected life of the 

proposed operation. 

 Limiting anticipated mining to the operation covered by the permit and other existing operations. 

 Including only those operations for which a permit has been issued or for which a permit has been officially applied. 

 Including the entire life of the proposed mine and other existing operations. 

 In the West, including any leased Federal coal. 

 Comments were specifically requested on these and any other alternatives a commenter felt should be considered. 

 In the final rule, OSM adopts a technically and environmentally sound definition for "anticipated mining" that avoids 

requiring the regulatory authority to attempt to assess the hydrologic impacts of operations that are merely speculative 

rather than actually anticipated, while assuring that all operations receive thorough analysis prior to commencement of 

mining. The definition includes all operations which have a reasonable expectation of receiving regulatory authority 

approval to mine and for which there is sufficient mine development information available to allow adequate analysis. 

 OSM recognizes that under the definition adopted some person could submit a permit application to conduct a future 

mining operation which was not included in an earlier CHIA. However, any such future operation or operations could 

not be permitted until after the completion of a new CHIA which would have to consider the newly proposed operation 

and any other "anticipated" mines. "Thus, any cumulative risk to the environment will be identified and could be 

mitigated." (47 FR 27714.) If any material damage would result to the hydrologic balance from the cumulative impacts of 

a newly proposed operation and any previously permitted operation, the new operation could not be permitted. 

 Several commenters have confused the relationship between the definition for "cumulative impact area" and the 

analysis performed by the regulatory authority known as the cumulative hydrologic impacts assessment. As described 
above, the cumulative impact area refers to the area of concern, that is, the areal extent of cumulative hydrologic impacts. 

The CHIA refers to the required assessment of cumulative impacts. 

 The major provisions defining the scope of the required CHIA are contained in sections 507(b)(11) and 510(b)(3) of 

the Act. These sections require data for the "mine site and surrounding areas" so that the regulatory authority can make 

the CHIA (section 507(b)(11)); specify that this assessment not be required until the necessary information on the 

"general area" is available, but that the permit not be approved unless such information is available (section 507(b)(11)); 

and require the assessment of the cumulative impact of "all anticipated mining in the area" (section 510(b)(3)). These 

provisions are implemented in Section 782.21(g). 

 The term "cumulative impact area" is not defined in the Act, but, as used in these rules, it is intended to be in accord 

with the use of the terms "mine site and surrounding area" and "general area" appearing in section 507(b)(11) of the Act. 

These terms define the areal extent of baseline data requirements for the CHIA. 

 The term "general area," in previous Section 770.5, is being deleted as part of the revised permitting rule which 

removes 30 CFR Part 770. This rule uses the term "cumulative impact area" to circumscribe the baseline data 

requirements for the CHIA. The use of the new term in the rules is not intended to change the scope of the Act's 

requirements. Rather, it is intended to help clarify the extent of the area for which a CHIA must be completed and to 

reduce some of the confusion resulting from the application of the term "general area" in the previous rules. The nature 

and scope of cumulative hydrologic impact assessments will be discussed in greater detail later in this preamble. 

 One commenter viewed the previously used term "general area" as more precise for describing the area of concern for 

protection of hydrologic resources than the proposed definition of "cumulative impact area." Also, the commenter 

believed that the proposed definition would not cover area-type operations or account for long-term ground-water 

impacts. 

 The final definition for "cumulative impact area" will prove to be workable and can effectively replace the term 

"general area" in the previous rules. The final definition for "cumulative impact area" allows for the delineation of an area

which must be analyzed for cumulative impacts occurring outside the permit area of the proposed operation. 

Furthermore, because the definition encompasses offsite impacts from all anticipated mining, all hydrologic resources 

which may be impacted will be included in the assessment regardless of the type of coal mining operation. Long-term 

impacts are no different under either the definition for "cumulative impact area" or the previously used term "general 

area." The definition adopted provides the regulatory with the necessary flexibility and guidance to protect the hydrologic 

balance of an area. This, coupled with monitoring information and predicative methodologies, will allow detection of 

potential problems and suggest remedial or preventive actions. 

 Several commenters considered the proposed definition of "cumulative impact area," and particularly the explanation 

of the term "anticipated mining," to be too broad. Most focused on the speculative nature of hydrologic predictions, the 

scarcity of hydrologic data for many areas of the country, the difficulty in obtaining data considered proprietary, and the 

ease and benefits associated with basing a cumulative assessment on data available through the permitting process. Some 

commenters argued that the proposed broad-based assessment would be ambiguous, beyond statutory requirements, 

unscientific, and open to challenge because it would lack reasonable standards to guide the applicant and the regulatory 

authority. Others contended that the regulatory authority would have an impossible burden in assessing cumulative 

impacts, especially in situations where rapid development was possible. They believed that without the benefit of permit 

data, the regulatory authority would be forced to rely on clairvoyance. Also, they viewed the definition as encompassing 

areas that would make the analysis meaningless. 

 Suggestions for changing the definition of "cumulative impact area" included limiting "anticipated mining" to existing 

operations and those for which a permit application had been filed. State commenters who objected to the breadth of 

the proposed definition, nevertheless wanted the regulatory authority to have the discretion to include additional areas in 

the assessment. Advocates for limiting the definition believed that since a cumulative hydrologic impact assessment must 

be completed for each new permit application prior to issuing a permit, remedial and mitigative efforts for new impacts 

could be addressed at that time. Some commenters thought the definition should not require the assessment to cover the 

entire life of the proposed mine. Others believed that life-of-the-mine impacts could be reasonably projected. 
 Some commenters felt the proposed definition was too narrow and suggested other changes. Some viewed the phrase 

"projected life of the proposed operation" as too restrictive because it did not include postmining operation impacts. 

Another commenter thought that limiting the scope of "anticipated mining" to the projected life of the mine, as proposed, 

ran contrary to congressional intent. A State commenter suggested that the definition should establish a uniform national 

minimum standard but allow the regulatory authority to consider a period of analysis longer than the life of the operation. 

Another commenter thought that reasonably anticipated mining would include coal areas under diligent development 

requirements. 

 OSM has considered all of the comments submitted and has revised the proposal as indicated above. The final rule 

does not require the regulatory authority to speculate or to use "clairvoyance" to evaluate potential impacts. Rather, it 

provides a definition which will allow a meaningful technical analysis, while ensuring that mining will not be permitted 

until the hydrologic impacts of all operations have been assessed. 

 The definition of "cumulative impact area" is structured to allow the regulatory authority to delineate an area of 

concern within which impacts from coal mining upon hydrologic systems will be assessed. Consideration of which mining 

operations must be included in the CHIA can be divided into three parts, as follows: 

 Pre-existing operations which have completed mining and reclamation; 

 Existing operations; and 

 Future operations. 

 The final does not specifically require that preexisting operations be identified and included in the cumulative impact 

area. Inclusion of such operations is unnecessary since any preexisting hydrologic impacts would become part of the 

baseline hydrologic conditions. Data covering such conditions will be provided with the permit application. 

 Both the proposed and final definitions include all existing operations. No comments were received which suggested 

that existing operations be excluded. Some difference of opinion among commenters existed with respect to potential 

future development at existing operations. OSM believes that future activities of existing operations should be included 

as "anticipated" operations. For such operations a plan for future mining will be available, along with hydrologic data 

submitted with the permit application for the existing mine. The comments suggesting that postmining operation impacts 

be considered has also been accepted. The final rule requires consideration of the entire life through bond release of all 

operations which are considered anticipated mining. Upon bond release all reclamation requirements of the Act must be 

fully met. 

 OSM rejects those comments suggesting that the definition be limited to operations already permitted. Moreover, the 

impacts of unpermitted operations such as operations of less than two acres for which a permit may not be required, must 

be included in the assessment. 

 In addition to future stages of existing operations, the definition also includes certain other "anticipated" future 

operations. Specifically, the definition includes the proposed operation; any other operations for which a permit 

application has been submitted to the regulatory authority; and any operations required to meet diligent development 

requirements for leased Federal coal and for which there is actual mine development information available. This definition 

is not intended to preclude the regulatory authority from including additional areas in the assessment at its discretion. 

 The basis for including the proposed operation and other operations with a permit application pending over their 

entire projected lives is the same as the reasoning behind including future stages of existing operations; that is, for such 

operations a plan for mining will be available as well as data submitted with the permit application and there will be a 

reasonable "anticipation" that such operations would receive permits and commence mining. 

 In the case of operations mining leased Federal coal, OSM thought it necessary to modify its proposal (47 FR 27714)

in order to exclude operations for which data are speculative. Only operations for leased Federal coal which have 

hydrologic, geologic and mine development information available (for example: planned mining and reclamation 

techniques, processes, schedules) will allow for accurate hydrologic impact assessments. 
 The language of the proposed definition could have been read to require consideration of operations for which there 

was no plan for the mine and for which projected impacts were highly speculative. To focus analysis, instead, on 

non-speculative operations, OSM has listed operations which reasonably can be evaluated in interaction with the impacts 

of the proposed operation. The definition for anticipated mining does not, however, include merely possible or 

speculative operations for which the regulatory authority reasonably has no available information upon which to base its 

assessment. 

 One commenter thought that the limited definition of "cumulative impact area" might result in the exclusion from the 

CHIA of some watersheds which might be mined. Other commenters felt that this definition focused too much on 

anticipated mining rather than on all areas which might be impacted. 

 In proposing the definition it was not OSM's intent to exclude the consideration of any hydrologic system that might 

be impacted. The final rules require that, before approval of any permit for a surface coal mining and reclamation 

operation, a CHIA must be completed to determine whether the proposed operation has been designed to prevent 

material damage to the hydrologic balance outside the permit area. No exclusion of areas which may be impacted as 

stated or implied. The proposed definition was revised to allow consideration of all areas outside the permit area which 

would likely be impacted. 

 One commenter suggested that the use of the term "basin(s)" in the definition posed an impractical, if not impossible, 

task for the regulatory authority. Because of the vast size of some surface- and ground-water basins, the lack of 

information regarding boundaries and hydrologic properties and the overall complexity of large systems, the commenter 

thought that assessments of basins would be of little value, extremely costly, and time-consuming. Other commenters 

suggested that because mining impacts might be localized, the regulatory authorities should have discretion to delineate 

areas of analysis without set spatial limits and should focus attention on areas with overlapping impacts. 

 OSM agrees with these comments and has revised the final definition by substituting the more general term "systems" 

for the word "basin." This substitution conforms with usage in section 507(b)(11) of the Act and signifies that impacts 

are to be assessed on the hydrologic resources which may be impacted without set spatial limits which may be 

unmanageable. This change, however, will not restrict the area of analysis. It will allow the regulatory authority flexibility 

to define a meaningful cumulative impact area. 

 Other commenters thought the language of the proposed definition was confusing as to whether the CHIA was 

confined to the permit area. Changes have been made to the definition to clarify that the cumulative hydrologic impacts, 

both inside and outside of the proposed permit area, must be considered in the CHIA. Probable hydrologic impacts within 

the permit and adjacent areas which derive solely from the proposed operation will be included in the probable hydrologic 

consequences (PHC) determination for that mine. 

 One commenter suggested that the proposed definition was unworkable because it established a "circular test" by 

defining the cumulative impact area to be the area in which cumulative impacts may occur. Further, the commenter noted 

that the definition assumed that one might predict what the cumulative impacts would be prior to the analysis. 

 OSM has made changes in the language of the definition to address the commenter's first criticism. However, OSM 

disagrees with the commenter's second point. 

 OSM believes that the commenter has misunderstood the purpose of the "cumulative impact area" definition. 

Application of the definition will help a regulatory authority to establish the boundaries of the area to be analyzed. In 

establishing the physical scope of the cumulative impact area, the regulatory authority will look at the likely areas 

affected by the proposed operation, the likely areas affected by all anticipated mining and the likely areas to be affected 

by the interaction of impacts among the various operations. At this stage of establishing the area of concern, the 

regulatory authority need not determine the cumulative impacts on the hydrology of the area. Such analysis will occur 

during the CHIA process. 

 This is a workable approach. An educated judgment based upon available hydrologic, geologic and mine development 

information is the most feasible way to delineate an area in which there may be cumulative impacts. Furthermore, 
boundaries established for the assessment can later be changed by the regulatory authority if subsequent analyses or data 

reveal impacts beyond those in the area initially described. 

 One commenter thought that the cumulative impact area should be defined by the regulatory authority as the area of 

probable impacts developed through the use of standard hydrologic prediction techniques (modeling). 

 The cumulative impact area definition must be as specific as possible to reflect the intent of Congress but need not 

specify analytical techniques to be used in the CHIA. OSM expects that regulatory authorities will use modeling 

techniques, where appropriate, as tools for assessing cumulative impacts during the CHIA process. 

 One commenter wanted OSM to make it clear that when a proposed mine would be the first in an area, there would be 

no cumulative impacts and therefore no need for a CHIA. 

 While it may be possible that for a single hydrologically isolated mine the probable hydrologic consequences 

determination made by the operator would be adopted by the regulatory authority as the CHIA, nevertheless such a 

conclusion must be reached by the regulatory authority on a case-by-case basis. 

 Several commenters did not think that the proposed definition clarified the responsibility for preparation of the CHIA. 

 Responsibility for preparation of the CHIA lies with the regulatory authority as provided in Section 780.21(h). This

requirement does not, however, preclude the applicant from submitting information on the cumulative impact area as part 

of a permit application ( Section 780.21(d)). 

 2. GRAVITY DISCHARGE . The term "gravity discharge" is defined in the final rule as mine drainage in 

underground mines that flows freely in an open channel downgradient. It does not include mine drainage that occurs as a 

result of flooding a mine to the level of the discharge. 

 Several commenters disagreed with the second sentence of the proposed definition which excluded mine drainage 

occurring solely as a result of hydrostatic pressure from a mine flooded to the level of discharge. Various suggested 

changes were offered. Some recommended deleting the words "solely" and "flooded to the level of discharge." These 

commenters felt the proposed language could be misinterpreted in two aspects: First, the words "solely" and "flooded to 

the level of discharge" could be read to mean that a mine could not be flooded above the level of discharge; and, second, 

the term "solely" could be interpreted to preclude "elbow" shaped mines where the lowest part of the roof at the elbow 

was below the level of the discharge. Such mines inhibit the free flow of fresh air into the mine workings, but do not 

result in all workings being flooded after mining ceases. 

 OSM agrees with these comments and has revised the final definition of gravity discharge to help eliminate these 

ambiguities. The word "solely" has not been adopted. OSM does not agree, however, with the commenters' suggestion to 

delete the words "flooded to the level of discharge." Since all water flows through a mine as a result of hydrostatic 

pressure, defining gravity discharge in terms of only hydrostatic pressure could result in exactly the form of 

misinterpretation the commenters sought to avoid. For this reason, the final definition retains these words, but does not 

include the words "hydrostatic pressure" in the final language. 

 One commenter stated that sufficient evidence was not available to be sure that acid mine drainage would not occur in 

flooded mines. According to this reviewer, the second sentence of the proposed definition would allow the development 

of mines which would discharge and therefore could produce acid mine drainage. Two commenters stated that the 

proposed definition would not stop the discharge, but would block air return and restrict channel flow only until section 

516(b)(12) of the Act no longer applied. The commenters felt such a result would be contrary to congressional intent. 

 OSM believes that Congress did not intend to ban all mining of potentially acid- or toxic-forming coal seams or to 

have all discharges from underground mines considered as gravity discharges. Section 516(b)(12) of the Act is concerned 

primarily with "up-dip" mining in the Appalachian coal fields that results in an open channel with water flowing 

downgradient unimpeded to the mine opening. That provision requires mine planning that will result in the creation of 

barriers to air and water flow through the mine by selective placement of mine openings and sound mine drainage 

control. 
 Because the availability of air is a major factor in the production of acid mine drainage, mine flooding is a generally 

accepted technique to minimize this problem. Congress did not prohibit the use of this control practice. The definition 

adopted is consistent with this approach. It is not, however, intended to preclude the use of "elbow" mines or the 

flooding of mines above the level of discharge. 

 Merely because a mine will discharge water is an insufficient basis to conclude that the mine should not be permitted. 

Since as a practical matter all mines do discharge water, such a provision would amount to a complete prohibition on 

underground mining, a result Congress clearly did not intend. As indicated above, mine flooding is a generally accepted 

technique to minimize acid and toxic discharges from underground mines. The final regulations encourage this technique. 

As one commenter noted, fresh air is an important ingredient in the formation of acid mine drainage. A principal objective 

of the second sentence of the definition of "gravity discharge" is to minimize the free flow of oxygen within a mine after 

closure and thus minimize the amount of oxidation. While it may not be possible, with existing technology, to totally 

prevent oxidation from occurring, a properly designed mine should be able to minimize the rate of oxidation of acid- or 

toxic-forming materials within a mine. 

 The latter commenters apparently felt that the proposed rule would allow a gravity discharge after a mine is closed. 

This is unfounded. Under section 516(b)(12) of the Act, mine openings for new drift mines in acid-producing or 

iron-producing seams must be located to prevent gravity discharge. OSM interprets this provision and the final rule to 

require the mine to be designed to prevent such discharges both during mining operations and after mine closure. 

 One commenter felt that OSM was expressing a preference for "wet seals." Another commenter felt the proposal 

would allow discharge past "ineffective seals." These conclusions are incorrect. While OSM is expressing a preference 

for mine flooding after closure, the final rule is not intended to encourage "wet seals." Rather, mine design that would 

allow flooding of potentially acid- or toxic-forming material, while allowing dry seals, may in most cases be preferable. 

The rules for mine seals, either "wet" or "dry," however, are contained in Sections 817.14 and 817.15. These 

requirements are unaffected by the definition of gravity discharge. Thus, the definition will not restrict the effectiveness of 

mine seals. 

 

B. SECTIONS 780.22 AND 784.22 - GEOLOGIC INFORMATION. 

 The geologic information required by these rules will give the regulatory authority an adequate geologic description of 

all lands that may be affected throughout a surface coal mining and reclamation operation. They will also assist the 

regulatory authority in determining whether compliance with a number of performance standards can be achieved, and, 

after permit issuance, whether the standards are being met. Principal among these performance standards is protection of 

the hydrologic balance. Others include casing and sealing of drilled holes, coal recovery, backfilling and grading, etc. 

 

SECTIONS 780.22(a) and 784.22(a) 

 Paragraph (a) establishes the general requirements for submission of geologic information and sets forth the purposes 

for which the specific information required in paragraph (b) is to be used. The general purposes for the data are: (1) To 

assist the applicant in the preparation of the probable hydrologic consequences (PHC) determination; (2) to identify 

locations for surface- and ground-water monitoring and to develop the monitoring and hydrology protection plans 

required under Sections 780.21 and 784.14; (3) to identify potentially acid- or toxic-forming strata within the permit area 

down to and including the stratum immediately below the lowest coal seam to be mined; (4) to assist the regulatory 

authority in its permit review responsibilities under section 510(b) of the Act to determine whether reclamation as 

required by the permanent regulatory program can be met and whether the proposed operation has been designed to 

prevent material damage to the hydrologic balance outside the permit area; and (5), in the case of underground mining 

operations, to assist in determining whether a subsidence control plan under 30 CFR 784.20 is required. 

 Paragraph (a) differs from proposed paragraph (a) in several ways. First, it contains a more complete list of uses for 

the geologic information, thus emphasizing the relationship which the data will have with certain responsibilities of the 

applicant and the regulatory authority. This change was made in response to a commenter suggestion that the rule 

indicate the contexts in which the geologic data will be used to fulfill statutory requirements. 

 Final paragraph (a)(1) differs from proposed paragraph (a)(1) by utilizing the terms "permit and adjacent areas," rather 

than "potentially impacted offsite area." Several commenters objected to use of the phrase "potentially impacted offsite 
area" which appeared in the proposed rules for hydrology and geology information. As discussed elsewhere in this 

preamble, OSM has not adopted the proposed phrase. The areal coverage of the PHC determination is the "permit area" 

and the "adjacent area", which are terms defined in Section 701.5, and the language of the geology rule has been changed 

to conform to the use of these terms. 

 Final paragraph (a)(2) is adopted from proposed paragraph (a)(2) and requires the geologic information to be 

sufficient to determine all potentially acid- or toxic-forming strata down to and including the stratum immediately below 

the lowest coal seam to be mined. For underground mines, the requirement includes both the permit area and the area 

covered by underground workings to ensure that all potentially acid-forming or toxic-forming seams that may be mined 

are identified in the permit application. 

 Paragraph (a)(3) summarizes how the regulatory authority will use the information being provided. Paragraph (a)(4) 

of Section 784.22 is based on proposed Section 784.22(a)(3) and links the collection of the baseline geologic information 

with the preparation of the subsidence control plan. 

 Several commenters objected to the adoption of the proposed subsidence information collection requirement. They 

thought relevant information would be supplied in the subsidence control plan. OSM disagrees. The general geologic 

information required by Section 784.22 is applicable generally to subsidence concerns as well as to hydrology. The 

subsidence control plan will supplement this information with information more specifically related to subsidence. 

 One of these commenters thought that the proposed language, "conditions that may influence ground subsidence * * 

*," was alarmingly open-ended and could result in unwarranted requests for information. OSM disagrees. Paragraph (a) 

generally outlines the general objectives to be achieved in the submission of geologic information. However, since 

Section 784.20 more precisely describes the subsidence control permitting requirements, the final rule adopts more 

precise language which focuses attention and limits the scope of the information to be requested to that necessary to 

prepare the subsidence control plan. 

 OSM did not adopt the recommendation of several commenters to include language in paragraph (a) authorizing 

operators to "reference" geologic information in the application. OSM is sympathetic to the concern raised by the 

commenters about supplying voluminous data already in the possession of the regulatory authority. However, the waiver 

provided for in paragraph (d) is broad enough to address this situation. 

 

SECTIONS 780.22(b) and 784.22(b). 

 Except for certain differences in the information collection requirements for underground operations where the strata 

above the coal seams to be mined will not be removed, the requirements of paragraph (b) for surface and underground 

mining activities are similar. Paragraph (b) sets forth the minimum requirements for the collection, analysis, and 

description of geologic information. 

 Sections 780.22(b)(1) and 784.22(b)(1) require the permit application to include a general description of the geology 

of the proposed permit area and adjacent areas. Final paragraph (b)(1) combines the requirements of proposed 

paragraphs (b)(1) and (b)(2) to simplify the wording of the regulation and make the requirements more easily understood. 

The description must extend to all strata down to and including the deeper of either the stratum immediately below the 

lowest coal seam to be mined or any aquifer below the lowest coal seam to be mined which may be adversely impacted 

by mining. The description is to include the areal and structural geology as well as other parameters which influence the 

required reclamation and the occurrence, availability, movement, quantity, and quality of potentially impacted surface and 

ground waters. It is to be based upon the cross sections, maps, and plans required by Sections 779.25 and 783.25; drill 

holes, core samples, and other data required under paragraphs (b)(2), (b)(3) and (c); and geologic literature and 

practices. 

 One commenter suggested that surface- and ground-water quantity be added to the list of features that should be 

considered in describing the geology of the permit and adjacent areas. This comment was accepted and paragraph (b)(1) 

has been revised accordingly. 

 Sections 780.22(b)(2) and 784.22(b)(2) deal with the analysis of samples collected from portions of the permit area 

where the overburden has been or must be removed. In such situations the samples may be collected from test borings; 
drill cores; or from fresh, unweathered, uncontaminated samples from the rock outcrops. The depth of the samples to be 

taken must extend to the deeper of either (1) the stratum immediately below the lowest coal seam to be mined or (2) any 

aquifer below the lowest coal seam to be mined which may be adversely impacted by mining. 

 Paragraphs (b)(2) (i) to (iii) identify the information which must be provided from the collection and analysis of the 

various overburden and coal samples and are adopted from proposed paragraph (b)(3). The data to be obtained will show 

the lithologic characteristics of the strata, including physical properties and thickness. The chemical analyses of each 

stratum will provide information on the potential presence and content of acid-, toxic- or alkaline-forming materials. The 

regulatory authority may determine that analysis for the presence and content of alkaline-forming material is unnecessary. 

The coal seams will be analyzed for the presence of acid- and toxic-forming materials, including total sulfur and pyritic 

sulfur. In case of pyritic sulfur, the regulatory authority may find that determining its content is unnecessary. Finally, the 

resulting data will indicate the location of all ground water, including aquifers. 

 Redundancy as to the location for sample collection has been eliminated. Under paragraph (b)(2), samples are to be 

obtained from the permit area. In addition to obtaining samples from test borings or drill cores, the rule allows the 

collection of "fresh, unweathered, uncontaminated samples from rock outcrops * * *." This addition was made in 

response to the suggestion of two commenters to allow collection by hand from rock outcrops or excavations at or near 

the faceup areas, especially at existing mines. While authorizing such a practice, OSM considers it important that the 

samples be fresh or recently collected before analysis. Also, the sample must be taken from rocks that are in place and 

have not naturally slumped or been weathered. Under such circumstances, the carefully collected samples should be 

representative of the rock in the overburden. 

 In keeping with the intent expressed in the June 25, 1982, preamble to the proposed rule (47 FR 27719) and with 

modifications made in the hydrology information rule, OSM has adopted language which describes the depth for sample 

collection. The prior rule at Section 779.14(a) was vague and subject to differing interpretation. The language of the 

proposed rule did not carry out fully the intentions as expressed in the June 25, 1982, preamble to include in the geologic 

description and analysis all strata down to the stratum below the lowest coal seam to be mined or a lower aquifer that 

may be impacted by mining. 

 Commonly, the stratum immediately below a coal seam consists of very fine grained, sedimentary rock which has a 

low transmissivity or does not have the hydrologic properties necessary to transmit or yield ground water. This stratum 

may range in thickness from less than 2 feet to several feet and has been variously referred to locally as "underclay" or 

"fire clay." Although this "underclay" or "fire clay" stratum is generally not considered an aquifer, the next lower (i.e., 

underlying) stratum commonly has improved hydraulic capabilities and may be an aquifer. Depending upon site geology 

and operating procedures, such an aquifer may have the potential of being adversely impacted by surface coal mining 

activities such as blasting, which may fracture any stratum between this aquifer and the coal seam (44 FR 15031).

Therefore, the applicant has the responsibilities for determining the presence or absence of such an aquifer below the coal 

seam "underclay" and for assessing its potential for being adversely impacted by the mining activity. 

 The language of the final rule clarifies the applicant's responsibilities. It sets forth the vertical depth for geologic 

information collection. It requires data from the deeper of either the stratum immediately below the lowest coal seam to 

be mined or any aquifer below the lowest coal seam to be mined which may be adversely impacted by mining. 

 In paragraph (b)(2)(i), some commenters objected to combining the collection of geologic and hydrologic data from 

the same drilling program. As one pointed out, combining the two requirements would require drilling to be halted, the 

well bore to be cleaned and developed, and the well allowed to stabilize before meaningful data could be obtained. Well 

stabilization could take a considerable amount of time before drilling for lithologic information could resume. OSM 

agrees that requiring water quality to be included with the drill hole or core sample logs may not be reasonable. 

Ground-water quality analysis is covered by a separate section and need not be repeated here. The final rule still requires, 

however, the drill logs to include identification of the occurrence of ground water. Such identification does not require 

special preparation of the drill hole and stabilization to collect samples. 

 One commenter objected to the deletion of the requirement for data on the compaction and erodability properties of 

strata within the overburden which appeared in the prior rules at Sections 779.14(b)(1)(iii) and 783.14(a)(1)(iii). The 

commenter thought this omission would preclude some potential for postmining variations in land use. However, the 
commenter did not explain how having such information about the overburden would be relevant to variations in the 

postmining use of the overburden material. 

 Collecting information on compaction and erodability of the undisturbed overburden is not precluded by the language 

of the final rule at paragraph (b)(2)(i), which requires information about the "physical properties* * * of each stratum * * 

*." However, obtaining such information about every stratum may be unnecessary. Usually obtaining information about 

the geotechnical engineering properties of overburden is relevant when designing certain engineered structures. The 

professional engineer who plans the structures must determine if testing overburden materials is needed and the kinds of 

tests to be performed. 

 Two commenters proposed deleting entirely the requirement in paragraph (b)(2)(ii) to collect data on alkaline-forming 

materials because the Act does not specifically call for alkalinity information. This suggestion has been rejected. Knowing 

the alkaline-forming potential of the overburden and substrata will be helpful when planning revegetation efforts in arid 

and semi-arid areas of the country and when determining the buffering capacity of the strata to neutralize or mitigate acid 

drainage. (See Chapter 1 of the U.S. Department of Agriculture Handbook No. 60 (1954); and 44 FR 15032-15033,

March 13, 1979). 

 While the Act does not specifically list potential alkalinity, Section 508(a)(12) does call for "an analysis of chemical 

properties * * * of the mineral and overburden * * *." OSM views this language, coupled with section 507(d) and 

508(a)(14), as sufficient authority for this regulatory requirement. To the extent that information on potential alkalinity 

may not be relevant in a particular situation, the final rule allows the regulatory authority to waive the requirement. 

 Proposed paragraph (b)(3)(iii) called for the preliminary analysis of the coal seam for total sulfur content. This analysis 

would have been followed by analyses for sulfate sulfur, pyritic sulfur, and organic sulfur when the regulatory authority 

considered such action to be necessary because the total sulfur content was sufficiently high to indicate the likely 

presence of acid-forming materials (47 FR 27720). In response to a comment which pointed out the important 

relationship between the presence of pyritic materials and the acid-forming potential of coal, OSM has modified the final 

rule so that final paragraph (b)(2)(iii) requires the chemical analysis of the coal seam for the presence and contents of 

acid- and toxic-forming materials including total sulfur and pyritic sulfur. As written, the regulation assumes analysis for 

pyritic material except in those instances when the applicant can demonstrate to the regulatory authority that providing 

such information is unnecessary. 

 When analyzing coal for acid- and toxic-forming potential, determining the total sulfur content will include the sulfur 

chemically combined as part of organic matter and as part of inorganic sulfides (such as pyrite and marcasite) and 

inorganic sulfates (such as calcium sulfate and iron sulfate). Therefore, analysis for the contents of total sulfur and pyritic 

sulfur according to established procedures, such as those developed by the American Society for Testing Materials 

(1981), will provide sufficient baseline information about the acid-producing potential of the coal. If the regulatory 

authority finds it to be necessary, it can require additional analysis for sulfate sulfur or organic sulfur under paragraph (c). 

 OSM has not adopted a commenter recommendation to require analysis for the mineral marcasite. Being the less 

stable orthorhombic form of iron disulfide, marcasite generally changes to the mineral pyrite, the more stable isometric 

form. The additional procedures that would be needed to determine the separate content of each mineral would involve 

x-ray and/or optical techniques. Yet, the results would provide no more information on the acid-producing potential of 

the coal seam than is learned from the combined pyritic sulfur (pyrite and marcasite) content. 

 Section 784.22(b)(3) in the underground mining regulations takes into account certain differences posed by those 

operations for areas in which overburden is not removed. It is based on proposed Section 784.22(b)(4). In contrast to 

Sections 780.22(b)(2) and 784.22(b)(2), it requires the collection of samples only from test borings or drill cores taken 

from strata that may be impacted by the underground mining activities above and below the coal seams to be mined, 

including impacts to the hydrologic balance. Samples must be taken from the adjacent area as well as the permit area. In 

addition to providing physical and chemical analyses similar to that required for surface operations, where standard 

room-and-pillar mining methods will be used, the application must contain information on the thickness and engineering 

properties of those strata immediately above and below the coal seams to be mined if they contain clays or soft rock such 

as clay shale. This information is intended to assist in evaluating roof and floor rock characteristics that may affect 

subsidence. 
 One commenter recommended deleting the entire proposed Section 784.22(b)(4). The commenter argued that the 

decision in In re: Permanent Surface Mining Regulation Litigation, C.A. No. 79-1144 (D.D.C., May 16, 1979) at page 

12, ruled against such an information collection requirement because underground mining activity only disturbs the 

surface with respect to surface facilities and roads. 

 OSM rejects this limited interpretation for a number of reasons. First, surface impacts from underground mining 

activities occur from more than roads and support facilities. Section 516 of the Act recognizes this fact. Second, the 

commenter misstated the effect of the court's decision in In re: Permanent Surface Mining Regulation Litigation. The 

court did not rule on this matter. Rather, in response to the plaintiff's allegation of overbreadth in the regulatory language 

of 30 CFR 783.14(a) (44 FR 15363 (1979)), OSM amended the rule to narrow its application (45 FR 51550, August 4, 

1980). The language of final Section 784.22(b)(3) is consistent with the approach adopted by OSM in 1980 in that it calls 

for geologic information about particular strata above and below the coal seam to be mined as opposed to all strata, 

down to the coal seam. And third, Section 784.22(b)(3) will assist the underground mining operator and the regulatory 

authority to meet various other statutorily imposed responsibilities as well. 

 Proposed Section 784.22(b)(4)(iv) generated favorable and unfavorable comments. One commenter applauded the 

requirement to determine the engineering properties of the clay or soft rock underlying the coal seam. The commenter 

suggested that the information be collected for the life of the mine. OSM has not adopted this suggestion for the reasons 

outlined below. 

 Another commenter objected to the requirement for the engineering properties of materials underlying the coal seam. 

The commenter thought that this kind of information had in most cases already been obtained. Another commenter 

believed this information would be addressed in the subsidence control plan. OSM agrees that the requirements of 

proposed Section 784.22(b)(4)(iv) could have been required in the subsidence control plan rather than in the general 

geology section. However, OSM does not agree that this requirement should be deleted entirely. The engineering 

properties of materials underlying coal seams vary. The objective of the requirement is to alert the regulatory authority 

and the operator of possible bearing-capacity failure of the pillars and excessive deformation of the floor beneath the 

pillars. (See Cummins (1973).) 

 One commenter thought the information requirement should apply to materials overlying as well as underlying the 

coal seam. The final rule adopts this suggestion. 

 Some commenters believed that the geologic description and information collection requirements should extend to an 

area covering the life of the mine. These commenters thought that such an extension was necessary for the PHC 

determination and CHIA which in the commenter's opinion also covered the life of the mine. Another commenter argued 

that the Act only requires operators to obtain hydrologic information from outside the permit area in relation to issues of 

hydrology. 

 OSM has specified that the minimum area from which geologic information must be gathered is the permit area and 

permit and adjacent areas as appropriate. The language of sections 507(b)(15) and 508(a)(12) of the Act point to the 

"permit area" as the site for test borings or core samples. To the extent that geologic information collected from off the 

permit area is needed to fulfill the statutory requirements to protect the hydrologic balance, to minimize or prevent 

subsidence, or to meet other performance standards which may have offsite effects, this serves as the basis for Section

784.22(b)(3) and for the regulatory authority requiring the collection of such additional information under Section

780.22(c) and Section 784.22(c). 

 OSM does not accept the argument that the data automatically should be collected from an area covering the life of 

the mine. As is discussed in Parts C and D of this preamble, the applicant is responsible for collecting information 

sufficient to make the PHC determination. This determination is required for the permit and adjacent areas. While OSM 

agrees that geologic information covering the life-of-the-mine area will likely be necessary to complete the CHIA, this 

information is not specifically required to be submitted by the applicant until it is available from an appropriate Federal or 

State agency. On the other hand, the permit may not be approved under section 507(b)(11) of the Act until this 

information is available. Recognizing that the lack of such information may delay permit approval, Sections 780.21 (c) 

and (g) and 784.21 (c) and (f) provide that this information may be submitted by the applicant with the permit 

application. The reader is referred to the preamble to those sections for additional discussion of this issue. 
 

SECTIONS 780.22(c) and 784.22(c) 

 Final paragraph (c) makes clear that the regulatory authority may require supplementation of the baseline geologic 

information to be collected, analyzed, and described pursuant to paragraph (b). The regulatory language for the surface 

and underground rules are essentially identical. The final rule establishes the test that the regulatory authority must apply

when deciding whether any supplemental information is needed. 

 Three commenters objected to the latitude in proposed paragraph (c) that would allow the regulatory authority to 

require the collection of samples outside the permit area. They argued that an operator cannot be required to go on land 

not covered by the bond or not controlled by the operator. OSM disagrees. The final rule establishes a test which the 

regulatory authority must apply before requiring the additional information. Because there is considerable potential for 

impacts to the hydrologic balance and to surface areas outside the permit area resulting from underground mining 

operations, the regulatory authority must be able to obtain adequate information concerning these areas if it is to perform 

its permit application review responsibilities effectively. 

 One commenter was concerned that proposed paragraph (c) would allow the regulatory authority to require the 

collection of nonessential information from greater depths resulting in loss of time and great expense. OSM rejects the 

assertion that regulatory authorities will seek nonessential information. Having the flexibility provided in paragraph (c) is 

important because geologic conditions and the proximity of aquifers to mining operations may lead to serious impacts on 

water quality and quantity which, in turn, could affect the hydrologic balance. In order to develop meaningful PHC 

determinations, deeper analyses may be necessary. The final language of paragraph (c) is not expected to result in abuse 

of that discretion by the regulatory authorities. 

 

SECTIONS 780.22(d) and 784.22(d) 

 Paragraph (d) allows the regulatory authority to waive, in whole or in part, the requirements of Sections 780.22(b)(2) 

and 784.22 (b)(2) and (b)(3), upon the request of an applicant, provided the regulatory authority makes a written finding 

that the information is unnecessary because other equivalent information is available to it in a satisfactory form. When 

making this request, the applicant should provide appropriate references in the application to identify the sources of the 

substitute information. 

 As written, the language of the final rule is more precise than the proposal which would have allowed a waiver if the 

information was unnecessary. The rule makes clear that the waiver applies only to the collection and analysis 

requirements for test borings and drill cores. The rule specifies the rationale derived from section 508(a)(12) of the Act 

which the regulatory authority must apply before approving any waiver. It is retained from previous Sections

779.14(b)(3) and 783.14(b), with editorial changes. 

 One commenter misunderstood the purpose of the waiver provision. The commenter believed it applied when 

overburden analysis was unnecessary because of the nature of the surface mining activities (i.e., gob piles, loading 

facilities, processing plants). However, the geology rule does not require test borings or drill cores of strata that will 

likely be unaffected by particular mining activities. For example, if the surface mining activity consisted solely of a 

loading facility, the breadth and depth of the geologic information to be collected would reflect this fact. 

 One commenter thought that the proposal relaxed the requirement for the regulatory authority to have access to 

equivalent information. The commenter feared the substitution of irrelevant data. The language of the final rule takes into 

account the requirements of both sections 507(b)(15) and 508(a)(12) of the Act. OSM does not construe the word 

"equivalent" which appears in section 508(a)(12) as simply meaning "identical." Rather, the substitute material to be 

considered by the regulatory authority must be of equal value or effect. 

 As was pointed out in the June 25, 1982, preamble, regulatory authorities may have access to other kinds of relevant 

information, such as past mining and reclamation experience with particular areas or strata, which would make part or all 

of the information collection and analysis unnecessary (47 FR 27720). The regulatory authorities should be able to judge 

whether material to be substituted has the same significance as the material being replaced. This degree of flexibility is 

consistent with the Act. 
 Another commenter wanted it made clear that analyses are necessary and must be available in the application. The 

commenter thought section 507(b)(15) of the Act only authorized waivers from collecting data anew. 

 OSM disagrees with the commenter's reading of the statutory language. Neither section 507(b)(15) nor the legislative 

history prohibit waiver of analysis as well as data collection where the regulatory authority finds that it has access to 

material having a corresponding value. Section 507(b)(15) is quite specific that all the requirements appearing in the 

provision are eligible for waiver. This includes data collection and analysis. OSM has not, however, included the general 

geologic description requirements in the paragraph (d) waiver. 

 

C. GENERAL COMMENTS ON HYDROLOGY RULES 

 When referring to the analyses required by the Act, OSM has adopted the nomenclature of the Act. These analyses are 

now referred to as the "probable hydrologic consequences determination" (PHC) and the "cumulative hydrologic impact 

assessment" (CHIA). 

 Many commenters supported the proposed hydrology rules, citing improved clarity and organization, a more logical 

approach to permit requirements, greater flexibility for the regulatory authority, reduced burdens for operators, and 

emphasis on performance standards rather than design criteria. 

 Other commenters had general criticisms for the proposed changes. One disagreed with OSM's determination that the 

proposed rules would not have a "significant economic impact on a substantial number of small entities." The commenter 

thought the studies which the operator must perform were unnecessary and unrealistic with no benefit other than to 

satisfy the regulation. 

 OSM rejects these assertions. The analysis conducted under the Regulatory Flexibility Act was based upon the 

proposed changes from the previous rules and was thorough and accurate. Further, the information and analytical 

requirements included in the rule are based on requirements of the Act and are aimed at protection of hydrologic 

resources, and therefore cannot be considered unnecessary or unrealistic. 

 One commenter objected to all of the proposed rules which authorized the regulatory authority to prescribe 

requirements. This commenter feared that the regulatory authority would have too much latitude and would make 

"frivolous requests for non-essential information * * *." 

 OSM disagrees. There is no basis to believe that regulatory authorities will make frivolous requests for information. It 

is important for the regulatory authority to be able to prescribe the necessary conditions for any coal mining operation. 

This flexibility allows response to unique or unusual situations without the need for across the board requirements 

affecting all operators. 

 One commenter believed that the rules focused on areas of the country where surface water availability was low. The 

commenter thought that the rules should emphasize local and regional differences as required by the Act. Another 

commenter wanted the rules to provide the regulatory authority with greater flexibility to prescribe geologic, hydrologic, 

and monitoring requirements because it would be in the best position to evaluate need. 

 The final rules call for basic permitting baseline information, specific analyses, and performance standards in 

accordance with the requirements of the Act. The hydrologic, geologic, and monitoring data required represent a 

framework of detail needed by the operator and the regulatory authority for the design and evaluation of a mining and 

reclamation plan. These requirements are consistent with sections 507, 508, 510, 515, 516, and 717 of the Act. At the 

same time, the rules give the regulatory authority flexibility to fill information gaps in response to site-specific conditions 

when the national requirements are insufficient. 

 One commenter asserted that all hydrology information requirements and assessments made should cover the life of 

the mine and should include offsite areas. 
 OSM agrees that the CHIA required under sections 507(b)(11) and 510(b)(3) of the Act should cover the life of the 

mine and should include offsite areas. Otherwise, hydrologic and geologic permitting data are required, under the rules, 

for the permit area and any adjacent areas which may be impacted by the proposed mining operation. This is consistent 

with the ruling of the U.S. District Court for the District of Columbia in In re: Permanent Surface Mining Regulation 

Litigation, No. 79-1144 (D.D.C.), Slip op. at pp. 35-36 (February 26, 1980) and Slip op. at pp. 57-58 (May 16, 1980). 

 The following provides an outline of the timing and areal extent of required hydrologic information and assessment 

requirements. 

 (1) Baseline hydrologic information is collected prior to the mining operation, is included in the permit application, 

and describes the existing conditions in the proposed permit and adjacent areas ( Section 780.21(b)). 

 (2) The probable hydrologic consequence determination is included in the permit application and covers all mining 

authorized under the permit until bond release ( Section 780.21(f)) and describes any impacts of that mining in the permit 

area and adjacent areas. 

 (3) Information for the cumulative hydrologic impact assessment is compiled from existing sources where such 

information is available. In the event sufficient data are not available, the applicant may provide the necessary 

supplemental material. The information and assessment, at a minimum, cover the cumulative impact area for the life of 

the proposed operation and all anticipated mining ( Section 780.21 (c) and (g)). 

 (4) The monitoring plans for surface-and ground-water resources appear in the application. They reflect the PHC 

determination and the CHIA. They cover impacts both within the permit area as well as outside the permit area ( Section

780.21 (i) and (j)). 

 (5) The plan to protect the hydrologic balance is described in the application. The steps to be taken are based on the 

PHC determination and CHIA. The goal of the plan is to minimize disturbance to the hydrologic balance in the permit 

area and adjacent area, and to prevent material damage outside the permit area. The plan remains in effect until bond 

release ( Section 780.21(h)). 

 One commenter wanted it made clear that the PHC determination and the CHIA were required for each application 

for a permit or revision. 

 A PHC determination and CHIA must be made for each new permit application. Under the revised final regulations 

concerning applications for permit revisions, the regulatory authority will determine whether a new or updated PHC 

determination and CHIA are necessary. 

 Several commenters stated that the proposed rules deleted critical data requirements and sufficient detail necessary for 

reclamation and operating planning. In their opinion, this, coupled with weakened monitoring requirements, would make 

permit review more difficult and adverse hydrologic impacts more likely. 

 OSM disagrees with both assertions. While the reorganization of the hydrology rules has resulted in fewer parameters 

being listed and fewer analyses or plans required across the board, nevertheless all changes are in keeping with provisions 

of the Act, and sound environmental practices. Furthermore, the rules authorize the regulatory authority to add 

requirements, as necessary, to assure that each operation is designed, operated, and reclaimed to protect the hydrologic 

balance. Moreover, as described below, monitoring is not weakened. 

 One commenter suggested that design criteria developed at a State level might be very useful, especially to small 

operators, and that OSM should make this point in the preamble to the hydrology rules. 

 OSM has included some basis design criteria. It has authorized regulatory authorities to provide additional design 

criteria where such would be appropriate. For further discussion about OSM's position on performance standards and 

design criteria, the reader is referred to the "Final Environmental Impact Statement OSM-EIS-1: Supplement," Volume 

1, pp. IV 5-7. 
 One commenter believed that the complexity of the information process had been increased by separating the 

hydrology and geology information requirements from other resource information sections. 

 To the contrary, the information process has been enhanced by pulling together all hydrologic and geologic 

information requirements and relating them to each other. However, none of the information collection requirements for 

the permit application should be treated in a vacuum. Operators and regulatory authorities should rely on all relevant 

information at their disposal. 

 The same commenter thought that the concept of creating a body of baseline information on which to evaluate 

compliance with performance standards had the defect of relying on the regulatory authority's ability to foresee problems 

in order to frame its response in the application analysis. 

 The baseline hydrologic and geologic information will be sufficient to provide the regulatory authority with 

information from which to determine operator compliance with required performance standards. Moreover, the rules 

allow for the regulatory authority to require additional information should that prove necessary. While it may be difficult 

at the permit review stage to predict all possible environmental problems that could develop, the regulatory authority will 

be applying its best judgment that the operation has been designed to prevent material damage to the hydrologic balance 

outside the permit area. The ongoing monitoring will provide the regulatory authority with operational data so that 

adjustments to the hydrologic protection plan or other permit conditions may occur. 

 Generally, commenters believed that the proposed standards for sampling and analyses would improve the quality of 

permit applications. However, two commenters suggested, in keeping with the spirit of proposed Section 780.21(a), that 

OSM inspectors, contractors and others be required to follow the prescribed procedures and methodologies as well as to 

make split samples available to operators and to file them for verification of their quality. 

 OSM agrees that hydrologic information should be collected and analyzed according to standard procedures by all 

parties. All OSM inspectors are required to follow prescribed agency procedures; and State regulatory programs are 

required to be consistent with OSM regulations. In most cases this will result in the use of the methodologies listed in 

Section 780.21(a). Although OSM cannot set requirements for "other" parties, including permit challengers, scientifically 

sound information is imperative to evaluate compliance with the regulatory standards. However, requiring a regulatory 

authority to retain samples for every inspection of every operation and to make sample splits available would place an 

unreasonable burden upon regulatory authorities. If a person has reason to question the validity of an analysis or sample, 

he or she may request appropriate administrative and judicial review. Additionally, any citizen who believes a violation 

may continue to exist may request that further inspections be made. 

 The U.S. Environmental Protection Agency (EPA) has asked OSM to clarify that these rules do not supersede EPA's 

regulations pertaining to non-coal mine waste under the Resource Conservation and Recovery Act of 1976, as amended 

(RCRA), 42 U.S.C. 6921 et seq. Operators are required to comply where applicable. As for coal mine waste, OSM and 

EPA have undertaken a joint study under Subtitle C of RCRA. Until that study is completed, OSM has no responsibility 

for regulating coal mine waste under Subtitle C of RCRA. 

 In a number of instances, activities subject to the hydrology regulations may involve discharges of dredged or fill 

material into surface waters, including wetlands, subject to section 404 of the Clean Water Act. A question was raised 

whether, in those instances, OSM would itself determine whether the activity complied with the requirements of section 

404 or whether OSM instead expected the applicant to furnish evidence that the Corps of Engineers had made such a 

determination. 

 The Corps of Engineers has issued an interim final nationwide permit for certain surface mining activities. OSM is in 

the process of reviewing the requirements of the Surface Mining Regulatory Program, including permitting requirements 

and performance standards, to determine if they are sufficient to satisfy the requirements of section 404. OSM expects to 

work with EPA and the Corps of Engineers to ensure that if the nationwide permit for surface mining activities is 

retained, OSM's regulations are consistent with such a permit. 

 
D. HYDROLOGY PERMITTING RULES (SECTIONS 780.21 AND 784.14) 

 Generally, comments addressed both sets of rules for surface and underground mining. Unless otherwise indicated, the 

following discussion will be deemed applicable to both. The references provided will be made to the rules for surface 

mining activities. 

 Section 780.21 has ten paragraphs; Section 784.14 has nine. Paragraph (a) prescribes water quality sampling and 

analysis methodologies. Paragraph (b) prescribes the baseline hydrologic information to accompany each permit 

application. Paragraph (c) describes the baseline cumulative impact area information. Paragraph (d) allows the use of 

modeling techniques. Paragraph (e) specifies alternative water source information for surface mining activities only (and 

is not required in Part 784). Paragraph (f) specifies the requirements for the PHC determination. Paragraph (g) describes 

the CHIA. Paragraph (h) includes the requirements for the hydrologic reclamation plan. Paragraph (i) specifies the 

ground water monitoring plan. Paragraph (j) specifies the surface water monitoring plan. Each of these paragraphs is 

described in detail below. 

 

SECTIONS 780.21(a) and 784.14(a) - SAMPLING AND ANALYSIS METHODOLOGY. 

 Paragraph (a) incorporates by reference the 15th edition of "Standard Methods for the Examination of Water and 

Wastewater" and references 40 CFR Parts 136 and 434 which rely upon EPA's publication "Methods for Chemical 

Analysis of Water and Wastes". These water-quality sampling and analysis methodologies are to be used when providing 

the baseline hydrologic information for the proposed permit and adjacent areas in the application. Either of these 

methodologies must be used for all required water-quality analyses. These are to be used for required water-quality 

sampling when feasible. References to baseline information which appeared in the proposed paragraph have been deleted. 

The requirements for baseline information are set out in paragraph (b). 

 One commenter suggested that OSM should not reference "the most current editions" in the rule but should provide 

the date of publication for each reference. 

 OSM agrees with the commenter and notes that the Office of the Federal Register requires the current edition be 

specified. OSM will publish a notice in the Federal Register of any change in these publications (i.e., a new edition of a 

reference or a new reference). 

 One commenter objected to OMS's use of the term "feasible" in connection with the collection of water-quality 

sampling, believing the word could be interpreted as providing a "loophole" for operators from doing water-quality 

sampling. 

 OSM disagrees. Paragraph (a) merely provides guidance on methods of data collection and analysis, and does not 

diminish an applicant's responsibility under the other paragraphs of Section 780.21 to submit information and analysis. 

Sampling methodologies may vary based upon the water source being sampled and other site-specific conditions. The 

documents referenced on sampling procedures were not developed to provide strict methods for hydrologic data 

collection. Rather, they establish guidance and general standards for good practice. As these publications become more 

widely accepted and revised to cover all circumstances, it may be appropriate to make their use mandatory in all cases. 

However, at this point the rules appropriately acknowledge that the sampling procedures outlined may not be feasible in 

all circumstances where sample collection may be necessary. 

 One commenter criticized OSM's use of the phrase "hydrologic data representative of * * *", pointing to the March 

13, 1979, preamble to the permanent regulatory program which stated that modeling had not yet reached a state of art to 

be a universally accepted tool. The commenter viewed the proposed rule as allowing modeling everywhere. 

 Although the final paragraph describing the baseline information no longer includes this language, paragraph (d) 

continues the principle of previous Section 779.13(c) to allow use of modeling where appropriate. The comment appears 

to be based on two misconceptions. First, the language cited in the March 1979 preamble was an extraction from 

commenter ideas regarding modeling techniques. It was not an OSM position. Second, OSM is not promoting the use of 

modeling techniques in all cases. The application of modeling techniques may be acceptable based on site-specific 

conditions, the parameter being modeled, and what other data may be available. All techniques used by an applicant will 
be reviewed by the regulatory authority who has the option to require actual data even when modeling techniques are 

used. 

 Another commenter felt that OSM provided no defined procedure for determining what data to include in the baseline 

information collection effort and that use of the phrase "representative of" in the proposal rendered the rule vague and 

uncertain. 

 OSM disagrees with this assertion because guidance is provided regarding hydrologic information requirements in 

paragraphs (b), (c), (d), and (f). Also, the regulatory authority may set additional site-specific information requirements. 

Authorizing the use of "representative data" allows for the use of cost effective methods for describing some hydrologic 

conditions without collecting additional data. The limitations on the use of such data are discussed under paragraphs (d) 

and (f). However, OSM agrees that the proposed rule caused confusion by including both a general statement on data 

requirements and specific requirements for collection and analysis methodologies in the same paragraph. For this reason 

the first sentence of proposed paragraph (a) is not included in the final rule. This sentence was unnecessary since data 

requirements are set out in subsequent paragraphs. 

 

SECTIONS 780.21(b) and 784.14(b) - BASELINE GROUND-WATER INFORMATION AND BASELINE 

SURFACE-WATER INFORMATION. 

 Many commenters addressed both surface- and ground-water baseline information requirements jointly. OSM agrees 

that there is some redundancy between the requirements for surface- and ground-water baseline hydrologic information 

requirements. 

 To simplify the rule and reduce unnecessary wording, the final rule combines proposed paragraphs (b) and (c) in one 

paragraph (b) dealing with baseline data. No substantive change is intended by this reorganization. However, the initial 

sentence does specify that the regulatory authority may call for additional information beyond that specified as minimum, 

because site-specific conditions may necessitate such additional data. This preamble combines the comment responses 

on the two proposed information collection requirements. 

 Final paragraph (b) describes the baseline information requirements for ground- and surface-water resources in 

paragraphs (b)(1) and (b)(2), respectively. Paragraphs (b)(1) and (b)(2) call for certain fundamental information of all 

applicants. Under paragraph (b)(1), an applicant shall provide information for the proposed permit and adjacent areas 

about the location and ownership of existing wells, springs and other ground-water resources; water usage; as well as 

specific descriptive parameters relating to ground-water quantity and quality, including total dissolved solids (TDS) or 

specific conductance corrected to 25 deg. C, pH, total iron, and total manganese. These requirements differ from the 

proposal in that ground-water quantity information must include "approximate rates of discharge or usage and depth to 

the water in each water bearing stratum" rather than "discharge rate and depth to water in each significant water-bearing 

strata * * *." The first change was made because calculating water usage will generally provide an adequate gauge for 

determining the status of the resource without the more costly and environmentally disruptive process of always 

calculating the discharge rates. The second change, i.e., deletion of the word "significant," was made in response to 

comments and to ensure the collection of all necessary information. 

 Under paragraph (b)(2) an applicant must provide fundamental information about surface-water location, usage, 

quality and quantity. The requirement differs from the proposal in that an applicant is asked to provide information about 

ownership of surface-water bodies, and the location of any discharges into them. Identification of ownership will make 

paragraph (b)(2) consistent with (b)(1) and meet information requirements of section 507(b) of the Act. Identifying the 

location of discharges is necessary to fulfill effluent limitation requirements. Surface water quality baseline information 

must describe total suspended solids (TSS) in addition to the parameters enumerated for ground water. Baseline acidity 

and alkalinity information must be provided if there is a potential for acid drainage from the proposed mining information. 

Water quantity description must include, at a minimum, baseline information on seasonal flow rates. 

 Paragraph (b)(3) calls for certain supplemental information if an operator finds in the probable hydrologic 

consequences (PHC) determination that adverse impacts on or off the permit area may occur to surface-water resources 

or to strata that serve as aquifers which significantly ensure the hydrologic balance, or that acid-forming or toxic-forming 

materials are present that could result in contamination of ground- or surface-water supplies. 
 The requirements for supplemental information have been revised in response to comments, to specify that any 

supplemental information which is necessary to complete the PHC determination and evaluate adverse impacts on the 

hydrologic balance and potential contamination of water supplies must be included in the permit application. The 

requirement extends to both surface-water and ground-water resources, because both make up the hydrologic balance 

and because they often interconnect. 

 One commenter thought that the preamble to the final rule should point out the relationship between the hydrology 

and geology information requirements and that the permit application should contain appropriate cross-references and 

maps. 

 A thorough understanding of the geologic setting is necessary to understand the hydrologic systems encountered. 

Although OSM has separated these information requirements for clarity in the permitting process, the two are 

interrelated and have been emphasized throughout the permitting rules. Hydrologic/geologic cross-sections and maps 

remain part of the application as required by existing Sections 779.24, 780.14, 784.23, and other rules in 30 CFR 

Chapter VII. No further cross-references are necessary. 

 One commenter approved of OSM's emphasis in the proposed rules on significant water resources but suggested that 

it might be more expedient for the operator to collect more data and perform more analyses than the stated minimum to 

supplement the regulatory authority's cumulative hydrologic impacts assessment. 

 As was described above, OSM has modified the test for supplemental baseline information to extend to all adverse 

impacts on the hydrologic balance and not just significant water resources. The more general statement is deemed 

appropriate since the PHC determination is an analysis of impacts generally. It should be noted, however, that this section 

merely relates to hydrologic impact analysis and does not set standards for environmental protection of nonsignificant 

water resources. With respect to the question of an operator providing additional information for purposes of the CHIA 

process, both paragraphs (c) and (g) authorize this. It is important to point out the differences between baseline 

information collection and cumulative impact area information collection. The first will give the regulatory authority 

specific data about the proposed permit and adjacent areas so that impacts of the operations proposed to be authorized 

by the permit can be determined. The second will enable the regulatory authority to evaluate the interaction of the 

proposed operation with all anticipated mining on the hydrology of the area and to predict cumulative hydrologic 

impacts. 

 One commenter questioned the relationship of baseline information to the PHC determination and the completeness of 

a permit application. 

 Baseline information on surface- and ground-water resources is intended to provide a description of existing 

hydrologic conditions at a particular proposed mine site and in the adjacent area. This information in conjunction with the 

operator's specific mining and reclamation plans will be used to develop the PHC determination by the applicant. Both 

the baseline information and the PHC determination must be included in the permit application. Although the rules set 

minimum requirements for baseline hydrologic information, the regulatory authority's familiarity with the hydrologic and 

geologic conditions of a particular area and the proposed design and operation submitted in the mining and reclamation 

plans will dictate the type and amount of information necessary for a "complete and accurate permit application" as that 

term has been defined at 30 CFR 701.5. The completeness of a permit application is determined by the regulatory 

authority prior to approval. 

 Two commenters saw the proposed rules as cutting back too far on initial baseline analyses. One thought proposed 

paragraphs (b)(1) and (c)(1) omitted information requirements which would be essential for completing the PHC 

determination and CHIA. By way of example the commenter claimed that surface-water information must be collected 

showing water quality as related to seasonal, peak, and low-flow conditions in order to relate quality to quantity. The 

other commenter believed that the regulatory authority would not be able to determine if performance standards were 

being met. 

 OSM disagrees with these conclusions. Final paragraph (b) is more complete and flexible than previous baseline 

information requirements. All essential information requirements from the previous rules have been incorporated in the 

final rules. Moreover, the regulatory authority has the prerogative to expand information requirements when necessary. 

Along with basic information and analysis, the final rules also require supplemental information when necessary in the 
PHC determination process. This approach assures protection of the hydrologic balance without placing unnecessary 

burdens on all operators. Adjustments in proposed monitoring and hydrologic protection plans may be included if 

necessary to eliminate any potential material damage outside the permit area based on the regulatory authority's CHIA. 

Preparation of the CHIA in many cases may involve data beyond that obtained for the PHC determination. However, 

since preparation of the analysis is the responsibility of the regulatory authority from available information, such 

cumulative impact area data have not been included as a mandatory permit application requirement. 

 One commenter interpreted proposed paragraph (b)(2) as creating a mechanism whereby an operator could avoid 

gathering hydrologic data necessary to determine whether a resource was significant or currently used. 

 The baseline information called for under paragraph (b)(1) will be collected for each water-bearing stratum. Data 

obtained under paragraph (b)(3) do not supplant the data collection requirements of paragraph (b)(1). The information 

collected under paragraphs (b)(1) and (b)(2) will aid the regulatory authority when it evaluates the likely adverse effects 

of the proposed operation and when it examines the proposed hydrologic protection plan for adequacy. 

 One commenter wanted the minimum information requirements eliminated because in some cases the commenter 

thought they would be unnecessary and burdensome. 

 Although the regulatory authority must have the prerogative to specify information requirements for each proposed 

permit area. there is a minimum of information which will be necessary for descriptive and monitoring purposes as well as 

for serving as a basis for the PHC determination. The minimum requirements specified are essential for most operations 

and they likely will be expanded by the regulatory authority to account for local hydrologic conditions. 

 Several commenters supported use of the proposed phrase "currently used or significant" to modify ground-water 

information requirements. Some viewed it as a screening process in the development of sound data bases. Other 

commenters objected to the application of this test prior to requiring an operator to secure supplemental data. They 

noted that the term "significant" was not defined, that there was no indication that enough data could be collected to 

determine significance and that the Act required protection of the hydrologic balance without regard to the significance 

or use of the water. 

 OSM has taken all of these comments into account and modified the final rule to eliminate vagueness and yet retain 

the limited distinction it believes should be made. As revised, baseline information is mandated for all water-bearing 

strata. The only kind of ground-water resource that may not require the securing of supplemental information is one that 

does not affect the overall hydrologic balance, for example, a hydrologically isolated water zone. 

 One commenter feared that failure to obtain relevant data to establish the need for monitoring would be compounded 

because proposed paragraph (g) allowed the operator in making the PHC determination "to use only data statistically 

representative of the site or data collected near (but not on) the site." 

 OSM believes that the relationship between the requirements of final paragraphs (b), (f) and (i) is reasonable. Under 

final Section 780.21(f), the PHC determination must be based on the baseline information collected under paragraph (b). 

Adequate onsite data will be available for the operator to make the PHC determination. Under Section 780.21(i), waivers 

from the general requirement to monitor will be sufficiently restricted. 

 Two commenters thought proposed paragraph (b)(2), related to supplemental information requirements, was a 

problem since the requirement was based on a finding in the PHC determination of likely adverse impacts. However, the 

commenters were concerned that this finding could not be made without the information required in paragraph (b)(2). 

Thus, the commenters viewed OSM as putting "the cart before the horse" by requiring the operator to make the PHC 

determination before deciding whether or not to collect certain data. 

 This comment reflects an incomplete understanding of the content and purpose of the hydrology permitting rules. The 

necessary baseline information for all operations is outlined in the final rules and is intended to serve as a reference point 

of existing conditions. It is entirely appropriate to provide for a relationship between the baseline data requirements and 

the required analytical evaluation, in this case the PHC determination. Otherwise, the operator would either be required 

to collect an insufficient or an excessive amount of data to make the necessary determinations. Since no area of the 

country is totally without some hydrologic and geologic information being available, qualified professionals should be 
able to determine baseline data needs to complete the PHC determination early in the permit application preparation 

process. Further, variations in hydrologic and geologic conditions from site to site and in different regions render it 

virtually impossible to write a rule of nationwide applicability that covers all possible baseline conditions and types of 

mining. If an applicant is uncertain as to the conditions in a particular locale and the extent of information required, he or 

she may consult with the regulatory authority to receive additional guidance. 

 The regulatory authority has the option to expand these basic requirements if necessary to protect the hydrologic 

balance or otherwise to understand the potential impacts of the operation. Moreover, the preparation of the PHC 

determination should reflect the input of any other relevant information requirements provided for in the rules. 

 The information requirements listed in final paragraphs (b)(1), (b)(2), and (e), in combination with the geologic 

information required by Section 780.22, are sufficient to prepare the initial PHC determination. Moreover, throughout 

the application stage the regulatory authority may require additional information necessary to assure that the proposed 

operation will protect the hydrologic balance. All hydrologic information and evaluations by the operator in the PHC 

determination are subject to review and approval by the regulatory authority (30 CFR 773.15(c)(1)). If deemed 

warranted, additional information requirements or conditions to the mining and reclamation plans may be established. 

 Commenters thought that since iron and manganese did not usually represent a health hazard and, that since these 

elements in a dissolved state might be carried away from the mine site, analysis should focus on dissolved rather than 

total concentrations. 

 Total concentrations serve as an appropriate nationwide requirement because they can indicate potential problems 

with both dissolved and suspended constituents. As a practical consideration, both manganese and iron tend to precipitate 

out of solution upon storage so that dissolved concentrations are more difficult to determine than total levels. 

 In a related vein, another commenter stated that the combination of total plus dissolved iron provided information 

previously determined by OSM to be necessary (43 FR 41695, 41839, September 18, 1978). The commenter viewed the 

reasoning in the preamble to the proposed rule for requiring only total concentrations as insufficient in comparison to the 

earlier analysis. 

 The individual and relative merits of the various iron analyses are not specifically discussed in the earlier preamble. 

While analysis for both total and dissolved iron may be appropriate in some situations, the objective of the requirements 

of paragraphs (b)(1) and (b)(2) is to alert the regulatory authority and the operator to problems that may be encountered 

at the site. Since the total analyses include both suspended and dissolved constituents, adequate information will be 

provided for this purpose. If additional analysis is necessary to complete the PHC, it will be furnished under paragraph 

(b)(3). No adverse consequences are expected as a result of this change, especially since the regulatory authority can 

obtain additional analytical information if total levels appear high. 

 One commenter offered two suggestions. First, the term "ground water" should not include mere infiltration or 

percolation of rainfall but only permanent bodies of underground water. Second, ground water should be evaluated for 

quality in comparison to the quality of its source. 

 No changes have been made based on these comments. First, the definition of ground water found in the existing rules 

at Section 701.5 is environmentally sound and workable in the context of surface mining activities. This definition 

includes all saturated rock or soil materials but does not include percolating water in the zone of aeration. Second, quality 

comparisons between a ground-water resource and its origins may be appropriate in some circumstances but in most 

cases would likely be irrelevant to the goal of predicting impacts on the hydrologic balance from a proposed mining 

operation. If adverse impacts are possible, monitoring of changes from baseline conditions will usually be a better 

measure of the impacts from mining than comparisons of baseline conditions with water origins. 

 Two commenters were concerned that the requirement for "discharge rates" as part of the ground-water baseline 

information might result in unproductive expense and significant environmental disturbance. 

 OSM agrees and has reworded the final rule to require "approximate rates of discharge or usage." This modification 

will give the regulatory authority an idea of the quantity of water in each water-bearing stratum and the importance of 
this quantity to various users without adversely affecting the environment or placing an undue burden on the applicant 

where there is an existing water usage. 

 One commenter suggested that the minimum requirements for ground-water information be expanded to include 

temperature and direction of ground-water movement. The commenter gave no reason for the suggested change. 

 OSM disagrees with the commenter's suggestions. Its intent in listing required parameters is to provide a basic 

understanding of hydrologic conditions and to alert the operator and regulatory authority to potential problems and 

impacts on the hydrologic balance that may occur due to mining. Temperature changes do not generally result from coal 

mining and, therefore, no general requirement relating to temperature has been included in the final rule. On the other 

hand, analysis for specific conductance levels does require consideration of temperature. Therefore, in accordance with 

the references cited in paragraph (a), paragraphs (b)(1) and (b)(2) have been revised to clarify that specific conductance 

levels are to be corrected to 25 deg. C. This will necessitate a temperature reading of the sample to determine any 

necessary correction. If additional temperature data are appropriate in a particular situation, these may be required by the 

regulatory authority. Further, while flow direction is possible to estimate through water-level fluctuations and knowledge 

of geologic formations, it is a most difficult parameter to measure accurately. Also, determining flow patterns in complex 

geologic settings would be costly and would likely produce inexact data of questionable value to the operator or 

regulatory authority. Since flow direction can generally be determined from information otherwise required, no change 

has been made to the final rule based on this comment. 

 Two commenters suggested modifying the requirements for seasonal ground-water quantity and quality information 

with the phrase "when obtainable." They thought that this information might be difficult to determine and verify because 

of well construction and filters. 

 OSM understands that certain wells may pose problems for sampling. However, seasonal variation is essential to an 

understanding of the dynamic nature of the hydrologic regime. And seasonal variation data are required by sections 

507(b) and 508(a) of the Act. 

 One commenter believed that drawdown effects resulting from mining and ground-water development associated with 

mining should not be considered adverse impacts unless protected by State law. 

 Water-rights issues, especially in the Western States, may complicate surface mining activities. In some instances, 

State requirements pertaining to such issues have been incorporated into State regulatory programs. Nevertheless, the 

Act prescribes protection of the hydrologic balance. Since water-level drawdown may affect both onsite and offsite areas, 

the impacts of ground-water development or dewatering will have to be considered in the PHC determination and may 

result in supplemental information requirements as noted in paragraph (b)(3). These steps are necessary so that the design 

and conduct of mining activities will protect the hydrologic balance. 

 Two commenters suggested substituting the word "or" for the word "and" with respect to additional information 

requirements specified by the regulatory authority in proposed paragraph (b)(2). The commenters noted that all of the 

listed information may not be necessary in every case. 

 OSM agrees with this comment and has rephrased paragraph (b)(3). 

 Two commenters suggested that OSM emphasize the use of extrapolation and interpolation techniques especially with 

respect to seasonal variation and clarify that permit approvals were not precluded in areas where actual low-flow and 

seasonal-variation information was unavailable. 

 Flow and seasonal variation information is required for all permit applications as prescribed in the Act. If this 

information is unavailable, the applicant must obtain it. OSM agrees that the use of modeling and other techniques are 

useful to the applicant for predictive and descriptive purposes. Their use is authorized in paragraphs (d) and (f), but use 

of modeling is at the discretion of the regulatory authority. 

 One commenter suggested that the reference to impoundments in proposed paragraph (c)(1) be qualified by the phrase 

"important or significant." 
 The intent of the Act is to protect and understand the nature of all surface-water resources. The final rule calls for 

basic information regarding these resources. This does not impose undue hardships on the applicant and has been retained 

in the final rule. 

SECTIONS 780.21(c) and 784.14(c) - CUMULATIVE IMPACT AREA INFORMATION. 

 Paragraph (c) describes the kind of hydrologic and geologic information that the regulatory authority must consider 

when preparing the cumulative hydrologic impacts assessment (CHIA) required by paragraph (g). The provision has been 

modified to reflect changes made to the final definition for "cumulative impact area." References to geologic information 

have been included in response to commenter requests for integration of the two kinds of data requirements. As with the 

proposed rule, the regulatory authority may obtain the information from appropriate State or Federal agencies. In order 

to help expedite the permitting process, the operator may gather and submit the necessary information as part of the 

permit application. As required by section 507(b)(11) of the Act, a permit cannot be approved until the necessary 

information is available to the regulatory authority. 

 Several commenters thought the proposed provision allowing an applicant to gather and submit data on the 

cumulative assessment could be construed as being mandatory. Also, they thought the assessment was not cost-effective 

and of questionable value. 

 Paragraphs (c) and (g) make it clear that preparation of the CHIA is the responsibility of the regulatory authority. 

Under paragraph (c)(1), however, the operator is required to identify and provide to the regulatory authority data 

available from appropriate Federal or State agencies on the cumulative impact area. Submission of these data is 

mandatory and will be used by the regulatory authority in preparing the CHIA. Paragraph (c)(2) gives operators the 

option to collect and submit the cumulative impact area information with the permit application where the information is 

not available from such agencies. Generally, it is to the applicant's advantage, particularly with respect to timing, to assist 

the regulatory authority by providing the necessary hydrologic and geologic information when possible. Preparation of a 

CHIA prior to approval of a permit is mandated by the Act. 

 One commenter suggested rephrasing proposed paragraph (d) pertaining to cumulative impact area information to 

specify that the applicant would be responsible only for information regarding the potential consequences of his operation 

and that the CHIA would be limited to existing mines and potential aggravation of existing or predicted impacts resulting 

from those mines. 

 OSM disagrees. Sections 507(b) and 510(b) of the Act require a cumulative impact assessment (CHIA) for "all 

anticipated mining." As discussed above, the "anticipated mining" is defined to include more than just existing mines. 

Therefore, the CHIA cannot be limited to only existing mines. (See discussions for definition of "cumulative impact area" 

and paragraph (f). The final rule reflects this conclusion, but allows the operator to assist the regulatory authority in 

securing needed cumulative impact area information. 

 

SECTIONS 780.21(d) and 784.14(d) - MODELING. 

 Paragraph (d) allows an operator to use modeling techniques, interpolation, or statistical techniques when developing 

material for the permit application. However, the provision does not eliminate the possibility that actual surface- and 

ground-water information also may be required. Minor editorial changes have been made in the final rule from proposed 

paragraph (e). 

 One commenter thought that proposed paragraph (e) took no notice of the complexities associated with the modeling 

of hydrologic systems. The commenter viewed this coupled with the allowance for "representative data" in proposed 

Section 780.21(a) as adversely affecting the level of environmental protection. 

 OSM disagrees with this conclusion. The language of final paragraph (d) is basically the same as previous Section

779.13(c). OSM disagrees with the commenter's assessment that the new rule ignores the complexities of modeling or 

that OSM's allowance of modeling will have an adverse environmental effect. OSM recognizes the complexities 

associated with modeling and statistical analysis. However, the application of modeling may be acceptable based on 

site-specific conditions, the parameter being modeled, and what other data may be available. Techniques used by the 

applicant will be reviewed by the regulatory authority, who may require collection of actual data even when models are 
used. Under paragraph (f) statistically representative data may form the basis of the PHC determination only when used 

in conjunction with baseline hydrologic, geologic and other information collected for the permit application. 

 

SECTION 780.21(e) - ALTERNATIVE WATER-SOURCE INFORMATION. 

 Paragraph (e) of the final rule applies only to surface mining activities and aids in fulfilling the requirements of sections

508(a)(13)(C) and 717(b) of the Act. It requires the operator to provide information on water availability and 

alternative water sources if the PHC determination under paragraph (f) indicates that the proposed operation may 

proximately result in contamination, diminution, or interruption of water used for domestic, agricultural, industrial, or 

other legitimate use within the proposed permit or adjacent areas. Except for minor editorial changes, the paragraph for 

surface mining is adopted essentially as proposed. 

 The final rule requires alternative water-source information only for surface mining activities, since application of 

section 717(b) of the Act to underground mining was ruled improper in In re; Permanent Surface Mining Regulation 

Litigation, No. 79-1144 (May 16, 1989). The related performance standard at Section 817.54 of the March 1979 rules 

was suspended by OSM on August 4, 1980 (45 FR 51547). 

 Section 508(a)(13)(C) of the Act is one permitting standard which implements section 717(b) of the Act. Because 

section 717(b) applies only to surface mining activities, information on alternative water sources for underground mining 

activities, which would otherwise be required under section 508(a)(13(C) of the Act, is not needed and has not been 

provided for. This difference between Parts 780 and 784 is authorized by section 516(d) of the Act. 

 One commenter wanted proposed paragraph (e) to require information on the legal and physical availability of 

alternative water sources and assurance that water uses during mining would be recognized and protected. 

 The language of the paragraph is broad enough to cover adequately all legal and physical concerns which the 

regulatory authorities may have. Protection of water uses during mining operations is addressed by this and other 

provisions in the permitting and performance standard sections for surface coal mining operations. 

 

SECTIONS 780.21(f) and 784.14(e) - PROBABLE HYDROLOGIC CONSEQUENCES DETERMINATION. 

 Final paragraph (f) requires the operator to make a determination of the probable hydrologic consequences (PHC) of 

the proposed operation upon the quantity and quality of ground water and surface water under seasonal flow in the 

proposed permit and adjacent areas. This determination is a predictive estimate of potential impacts on the hydrologic 

balance. It serves as one source of basic information for the regulatory authority when preparing the CHIA. It will be 

used by the regulatory authority to evaluate whether the operation has been designed to minimize disturbances to the 

hydrologic balance both within and outside the permit area and to prevent material damage to the hydrologic balance 

outside the permit area. The paragraph specifies minimum analytical findings and estimates and allows the regulatory 

authority to expand the findings to be made. The findings which go into the PHC determination have a direct bearing on 

remedial measures, monitoring requirements, and supplemental baseline information requirements that will be set for an 

applicant. 

 A number of changes were made from the proposed rule. The areal coverage of this provision is specified in the first 

sentence, that is, the proposed permit and adjacent areas. Other references to spatial extent have been deleted as 

redundant. As mentioned earlier, the proposed phrase "potentially impacted offsite areas" has been replaced with the term 

"adjacent area." Under Section 780.21(f)(2) the PHC determination must rely upon the baseline hydrologic, geologic, and 

other information collected for the application. Statistically representative data may be used to supplement other baseline 

data collected for the permit application. 

 Specific findings to be included in the PHC determination and alluded to in other paragraphs of Section 780.21 have 

been summarized in Sections 780.21(f)(3) and 784.14(f)(3). The first two findings are required for both surface and 

underground mining. These are: (1) Whether adverse impacts may occur to the hydrologic balance, and (2) whether 

acid-forming or toxic-forming materials are present that could result in the contamination of surface- or ground-water 

supplies. The third finding requires a determination of whether the proposed operation may proximately result in 

contamination, diminution, or interruption of certain water uses. This finding is included only in Section 780.21, for 

surface mining activities since, as discussed earlier, the requirements of section 717 of the Act for replacement of such 
water uses is applicable only to surface mines and not to underground mines. The fourth finding under Section

780.21(f)(3) requires determination of impacts on sediment yield, total suspended and dissolved solids, flooding or 

streamflow alteration, ground-water and surface-water availability and other characteristics required by the regulatory 

authority. The finding related to ground-water and surface-water availability should pertain to impacts on future uses, 

where known, as well as to impacts on existing uses. 

 As noted above, paragraph (f)(3) includes a requirement that the PHC include a determination of the probable impacts 

of the mining operation on total dissolved solids. Salinity (total dissolved solids) predictions can be extremely useful as an 

indicator of potential problems for which remedial measures can be prescribed. Also, along with total suspended solids, it 

is one of the parameters specifically required by section 507(b)(11) of the Act. In order to clarify the actual analysis 

desired, OSM has modified the final rule to add a requirement for suspended solids and to replace the requirement for 

salinity with one of total suspended and dissolved solids. Other changes made between the proposed and final language 

are of an editorial nature. 

 To ensure that the probable hydrologic impacts of any changes to the original plan for mining are evaluated 

throughout the life of the mining and reclamation operation, paragraph (f)(4) clarifies that the regulatory authority must 

review applications for permit revisions to determine whether a new or updated PHC determination is necessary. This is 

consistent with the revised application review procedures of Section 774.13. 

 One commenter suggested that because the determination of probable hydrologic consequences (PHC) by the 

operator is limited to a 5-year period and because the CHIA is made for the life of the mine, a major data gap was 

created which made it difficult to assess individual impacts for the life of the mine. Another commenter thought that 

limiting the PHC determination to the 5-year term of the permit was contrary to congressional intent. 

 The commenter's interpretation of OSM's intent regarding the time frame of the PHC determination is incorrect. 

Section 507(b)(11) of the Act calls for a determination of probable hydrologic consequences both "on and off the mine 

site." OSM interprets this phrase as including the permit and adjacent areas. This is consistent with the previous rules (30 

CFR 780.21(c)). The activities whose impacts are examined in the PHC determination include the mining and 

reclamation activities proposed under the permit. However, the impacts resulting from such activities may extend beyond 

the time required to complete actual mining and reclamation. The predictive analysis in the PHC determination must 

cover the full extent of such impacts. The time frame for other areas and activities for the cumulative impacts of all 

anticipated mining will be covered by the CHIA. 

 Under the final rules, the regulatory authority is required to obtain the necessary information so that, through its 

CHIA process, it can determine whether the proposed operation has been designed to prevent material damage to the 

hydrologic balance outside the permit area. The CHIA must include consideration of all "anticipated mining"; as 

discussed above, the definition of anticipated mining includes the entire projected life of the proposed operation through 

bond release. 

 Possible gaps in data between those which may be required for the PHC and those which may be required for the 

CHIA, under section 507(b)(11) of the Act, cannot be required from the applicant until they are made available from an 

appropriate Federal or State agency. Nevertheless, the permit may not be approved until such information is available and 

incorporated in the application. If necessary information on likely impacts within the cumulative impact area is not 

available to the regulatory authority from State or Federal sources, then the applicant may gather and submit the data. 

 One commenter wanted it made clear that both the PHC determination and the CHIA were means to decide whether 

an operation was designed to prevent material damage to the hydrologic balance as required by section 507(b)(11) of the 

Act. 

 The PHC determination and CHIA are pre-mining analyses which allow the operator and regulatory authority to 

design an operation to minimize hydrologic impacts in the permit and adjacent areas and to prevent material damage to 

the hydrologic balance outside the permit areas. Their relationship to each other is covered in Section 780.21 (f), (g), and 

(h) of the final rules. Section 507 (b)(11) of the Act describes the relationship between the PHC determination and CHIA 

and requires this analysis to take place prior to application approval. 
 One commenter thought that proposed paragraph (g) did not require sufficient information to ensure that all 

performance standards would be met. 

 OSM disagrees. Final paragraph (f) is written broadly to cover all probable hydrologic impacts. This would cover the 

relevant performance standards of sections 515 and 516 of the Act. Also, additional information may be required by the 

regulatory authority. 

 One commenter considered the term "statistically representative" ambiguous in a regulatory sense because data from 

any coal field could be considered statistically representative and because such data could not be used responsibly as a 

substitute for actual analyses. This reviewer also commented that natural systems data were often statistically 

independent and that the proposed rule did not consider this fact or the needed precision when using these terms in a 

regulatory context. 

 In conjunction with the collection of actual baseline data, an applicant may use representative data from sites in close 

proximity to the proposed operation which have similar hydrologic and geologic conditions. While natural systems can 

vary from place to place, when sound statistical procedures are employed in conjunction with data from hydrologically 

and geologically similar sites and the baseline data for the proposed site, this variability can be recognized and accounted 

for so that accurate projections can be made and verified. Furthermore, the accuracy and usefulness of the PHC 

determination will be assured because the regulatory authority must review the use of the statistical and modeling 

methods and may require collection of actual information in addition. 

 Two commenters wanted OSM to provide a clearly stated methodology for conducting PHC determinations. 

 In the preamble to the proposed rule, OSM expressed general guidance regarding PHC analysis. Because OSM 

believes that analyses must be based on local hydrologic conditions, inclusion of PHC methodologies in a regulation of 

nationwide application would be inappropriate. The combination of the permit information requirements, knowledge of 

local conditions and typical surface mining impacts, and guidance from the regulatory authority can be used to prepare 

the PHC determination and to develop an environmentally sound mining and reclamation plan. 

 One commenter suggested that the PHC determination should be a "description" rather than an estimate of potential 

impacts. 

 OSM agrees that descriptions as well as numerical estimates can be used in the PHC determination depending upon 

the factor being considered and local conditions. Section 507(b)(11) of the Act gives guidance regarding the scope of the 

PHC determination. It is to be used as a tool for structuring a sound plan for mining and reclamation and must include a 

determination of probable impacts. The final rule has been revised to require such a determination. Some discretion is 

necessarily left to the regulatory authority regarding its precise content. However, OSM expects that the PHC 

determination will include numerical estimates of most impacts. 

 One commenter proposed the use of data from "more distant locations" if the data reflected regional trends or was 

otherwise useful in the PHC determination. 

 Data collected at a distance from a proposed operation may well be useful as an indicator of regional trends and could 

be used as part of the information used in the PHC determination or the CHIA conducted by the regulatory authority. 

However, the further one moves from the proposed permit site, the more difficult it is to correlate the data obtained to 

the proposed site or to estimate impacts from the proposed operation. In most cases, the utility of data used in the PHC 

determination will be inversely proportional to the distance from the proposed permit area. OSM believes that allowing 

the use of data "statistically representative of the site" is sufficiently flexible and workable. 

 One commenter concluded, after reading the preamble to the proposed rules, that OSM did not view the PHC 

determination as contributing to environmental protection. Instead it was treated as an exercise between the operator and 

the agency. However, the commenter believed that the PHC determination was intended for the benefit of the public's 

review. 

 OSM did not intend to give such an impression in the preamble to the proposed rules. The preamble to the proposal 

stressed the importance of baseline data and its relationship to an accurate and useful PHC determination. The specific 
requirements of final paragraph (f) and its direct links with other permitting and performance standard requirements 

clearly illustrate OSM's belief in the importance of the PHC determination. The main function of the PHC determination 

is to describe potential hydrologic impacts which can then be dealt with in the various plans prepared for the mining and 

reclamation operation and to serve as a basis for the broader cumulative hydrologic impacts assessment. OSM agrees 

with the commenter that it can serve as a useful document for public information and participation as well and must be 

included in the permit application which is available for public review. 

 

SECTIONS 780.21(g) and 784.14(f) - CUMULATIVE HYDROLOGIC IMPACT ASSESSMENT. 

 Final paragraph (g) requires the regulatory authority to prepare an assessment of the probable cumulative hydrologic 

impacts of the proposed operation and all anticipated mining upon the surface- and ground-water systems within the 

cumulative impact area. The assessment must be sufficient to determine, for purposes of permit approval, whether the 

proposed operation has been designed to prevent material damage to the hydrologic balance outside the permit area. 

 Changes were made in the regulatory language of proposed Paragraph (h) to make the final rule consistent with, and 

to emphasize its relationship to, the definition for "cumulative impact area" ( Section 701.5) and to the requirements of 

paragraph (c) for "baseline cumulative impact area information." 

 As with the requirements for the probable hydrologic consequences determination, a provision has been included in 

paragraph (g) to assure that the CHIA will be updated, if necessary, whenever there are changes to the approved permit. 

Thus, an application for permit revision must be reviewed by the regulatory authority to determine whether a new or 

updated CHIA is required. This is consistent with the revised application review procedures of Section 774.13. 

 OSM is aware of the complexities associated with the evaluation of existing and anticipated mining operations and the 

preparation of cumulative hydrologic impact assessments (CHIA). OSM's experience with cumulative assessments on 

Federal lands over the years has shown that sound hydrologic assessments can be made for potential mining impacts on 

both surface- and ground-water resources. Further, methodologies for making cumulative hydrologic impact assessments 

are steadily developing and improving as data bases expand. While OSM believes that the CHIA can be accomplished in 

an environmentally and scientifically sound fashion, the CHIA process cannot reasonably be extended to include remote 

and speculative impacts. Rather it should be based upon those impacts that have a reasonable likelihood of occurring and 

which are sufficiently defined to enable the regulatory authority to reach a decision for permit approval. 

 OSM agrees with some commenters that the Act envisions a portion of the process to be sequential rather than 

collective because an assessment is required for each application for a permit or permit revision. The cumulative 

hydrologic impact assessment for any given area will most likely be redefined with each new permit application because 

the scope of all anticipated mining will be changing. 

 Under the final rules, the cumulative hydrologic impact assessment need not be a land use planning tool nor result in 

judgments balancing current coal development and possible future development. The final rule allows a "first come first 

served" analysis with each subsequent operation being based upon its potential for material damage with respect to any 

preceding operations. This approach is not inconsistent with the Act's intent to protect the environment, because no later 

or revised operations can be approved until a cumulative hydrologic impact assessment is completed indicating that there 

will be no material damage to the hydrologic balance outside the permit area. 

 OSM is aware that some States may wish to use the CHIA process as a land use planning tool by accounting for 

impacts from possible future mining development in their permit reviews. The language of the final definition for 

cumulative impact area and the final rules for the CHIAs do not preclude regulatory authorities from establishing such a 

procedure. 

 One commenter wanted proposed paragraph (h) to allow the regulatory authority to establish criteria to measure 

"material damage." Others urged OSM to define the term or establish guidelines to evaluate whether material damage 

would occur from the proposed operation. 

 Evaluating the probable consequences of the proposed operation upon the hydrologic balance outside the permit area 

is a very important step in the review of a permit application by the regulatory authority. OSM agrees that the regulatory 

authorities should establish criteria to measure material damage for purposes of the CHIAs. 
 However, because the gauges for measuring material damage may vary from area to area and from operation to 

operation, OSM has not established fixed criteria, except for those established under Sections 816.42 and 817.42 related 

to compliance with water-quality standards and effluent limitations. 

 Several commenters opposed the proposal to allow the applicant to submit a draft CHIA with the permit application. 

For some, the proposal was unclear as to who was responsible to collect data and to prepare the assessment. For others 

the proposal had the potential for conflict between applicants and regulatory authorities regarding the validity of the draft

document, variation in assessment approach, availability of data, and expertise. Suggestions were made to delete the 

provision and to allow the applicant to submit relevant data. 

 In response to the comments, the final rule has been revised to allow submittal of data and relevant analysis. However, 

even where an applicant does submit analysis with the permit application, final responsibility for the CHIA rests with the 

regulatory authority. 

 One commenter thought that the preamble to the proposed rule pointed out difficulties with attempting to make 

cumulative impact assessments of future operations. The commenter believed that the proposed rules did not address the 

difficulties. 

 While projections of probable cumulative hydrologic impacts may be difficult, the Act requires the regulatory 

authority to make this effort. OSM has tried to address some of the problems of projection by developing the concept of 

the cumulative impact area which defines "anticipated mining" to include only non-speculative coal mining operations. 

 Two commenters thought that there were dissimilarities in intent between proposed paragraph (h) and previous 30 

CFR 786.19(c) and that because the proposed section was not one of findings relevant to the basic tenets of the Act, it 

violated the spirit and intent of the Act. 

 OSM has included final paragraph (g) in Section 780.21 because the section allows the operator to collect information 

which can be useful to the regulatory authority in its CHIA process. The concept of "findings" by the regulatory authority 

regarding compliance with the Act, especially with respect to the question of material damage, has been preserved in the 

revised general permitting procedure rules at Section 773.15(e)(5) as well as in Section 780.21(g). 

 Some reviewers suggested adding the phrase "outside the permit area" to the end of the second sentence to make the 

paragraph consistent with section 510(b)(3) of the Act. OSM has adopted this suggestion. 

 One commenter thought that this rulemaking provided an opportunity for delineating a methodology for preparing a 

CHIA and offered seven steps for OSM's consideration. 

 It is inappropriate to dictate methodologies of CHIA analysis in a regulation of nationwide application. Although some 

CHIA criteria will be generally applicable, others will be of local value. Therefore, each regulatory authority must adopt a 

CHIA methodology when reviewing a permit application which will reflect the particular hydrologic and geologic 

conditions in their area of concern. 

 

SECTIONS 780.21(h) and 784.14(g) - HYDROLOGY RECLAMATION PLAN. 

 Paragraph (h) sets out the elements to appear in the hydrology reclamation plan which must be submitted with the 

permit application. This plan must contain maps and descriptions indicating the steps to be taken during mining and 

reclamation through bond release to meet the requirements of Part 816, including Sections 816.41 to 816.43; to minimize 

disturbance to the hydrologic balance within the permit and adjacent areas; to prevent material damage to the hydrologic 

balance outside the permit area; to meet applicable Federal and State water quality laws and regulations; and, for surface 

mining activities, to protect the rights of present water users. Measures to be included among the steps to be outlined in 

the plan are those that will be implemented to: Avoid acid or toxic drainage; prevent, to the extent possible using the best 

technology currently available, additional contributions of suspended solids to streamflow; provide water-treatment 

facilities when needed; control drainage; restore approximate premining recharge capacity; and, for surface mining 
activities, protect or replace rights of present users. Also, the plan must specifically address any potential adverse 

hydrologic consequences identified in the PHC determination by including preventive and remedial measures. 

 The final rule reflects a number of editorial changes. The list of particular measures which must be addressed in the 

plan are based on the requirements of section 508(a)(13) of the Act and the performance standards outlined in section 

515(b)(10) of the Act. The relationship between the findings in the PHC determination and the coverage of the protection 

plan for the hydrologic balance has been made more specific. 

 A commenter recommended changing the language in proposed paragraph (i) from "onsite and offsite areas" to "mine 

site and associated offsite areas," in order to make the provision more consistent with sections 507(b)(14), 515(b)(10), 

516(b)(9), and 701(28)(B) of the Act. The same commenter thought that the water systems mentioned in section 

508(a)(13) referred to water delivery systems and, therefore, did not apply to most coal mining operations. The 

commenter considered OSM's reliance on this section to support offsite reclamation planning as inappropriate. 

 OSM agrees that the wording of proposed paragraph (i) should be clarified. However, rather than accepting the 

commenter's suggestion, the final rule is revised in accordance with terms defined elsewhere in the rules. Thus, the 

language used in final paragraph (h) revises the proposal to reflect the operator's responsibility to protect the hydrologic 

balance by minimizing disturbances within the permit and adjacent areas and by preventing material damage outside the 

permit area. This language is consistent with the intent of the Act in the sections cited by the commenter. OSM disagrees, 

however, with the commenter's interpretation of section 508(1)(13) of the Act. While this section does address the rights 

of water users and alternative water sources, OSM does not interpret the language "surface and ground water systems" 

to apply to "developed and operating surface and groundwater delivery systems for water uses." Rather, OSM interprets 

this language to refer to surface- or ground-water hydrologic units, such as a drainage basin, aquifer, soil zone, lake, or 

reservoir. The hydrologic balance is the relationship between the quality and quantity of water inflow to, water outflow 

from, and water storage in such systems. Thus, section 508(a)(13) requires the reclamation plan to include a description 

of the measures to be taken to assure the protection of such systems both within the permit area and the adjacent area. 

Neither the Act nor legislative history suggests a narrower interpretation for reclamation plan requirements. 

 One commenter thought that OSM was incorrect in requiring the PHC determination to occur prior to completion of 

the reclamation plan. 

 OSM disagrees. The order of the requirements for PHC determination and the reclamation plan in the regulation is 

inconsequential. The two requirements are naturally interrelated. An operator must determine what adverse impacts to 

the hydrologic balance are likely to occur from a planned operation and include protective steps to prevent or minimize 

such impacts. 

 

MONITORING PLANS 

 The following discussion covers the rules which prescribe how monitoring plans for surface and ground water must be 

developed and implemented so that adverse mining impacts can be minimized and so that those impacts due to mining 

will be distinguishable from those due to other causes. 

 

SECTIONS 780.21(i) and 784.14(h) - GROUND-WATER MONITORING PLAN. 

 Final paragraph (i)(1) requires the operator to develop a ground-water monitoring plan based upon the PHC 

determination and relevant information appearing in the permit application. It must provide for the monitoring of 

parameters that relate to the suitability of the ground-water for current and approved postmining uses and to the 

objectives set forth in the hydrology reclamation plan. The monitoring plan must identify the quantity and quality 

parameters, sampling frequency, and site locations. It must describe how the data may be used to determine the impacts 

of the operation upon the hydrologic balance. Minimum parameters are: total dissolved solids or specific conductance 

corrected to 25 deg. C, pH, total iron, total manganese and water levels. Reports for each monitoring location must be 

submitted every 3 months. The regulatory authority may require additional monitoring and may adjust monitoring 

frequency on a case-by-case basis. Specific conductance has been included as an alternative to TDS because it is a 

measurable parameter indicating the same constituents and may be correlated to TDS. 
 In certain limited circumstances monitoring may be unnecessary. Such cases may occur in an area having limited 

perched ground-water zones or where the resource is of marginal quality or quantity and where other ground-water 

resources are available for current and future uses. Under paragraph (i)(2), if an operator can demonstrate to the 

regulatory authority, using the PHC determination and other available data, that a particular ground-water resource fits 

into this narrow exception, then the regulatory authority may waive monitoring of that particular water. All such 

decisions must be carefully evaluated by the regulatory authority in view of the statutory requirements to maintain the

hydrologic balance, to protect water rights, and to replace water supplies. 

 Numerous commenters criticized the proposed rule for vagueness as to which ground-water resources need not be 

monitored. Section 517(b)(2) of the Act describes the characteristics of ground-water resources that must be monitored. 

They are all strata "that serve as aquifers which significantly insure the hydrologic balance * * *." 

 This statutory phrase, which has been included in Section 780.21(i)(2), properly directs the attention of the operator 

and the regulatory authority to the relationship of the ground-water resource to the hydrologic balance. 

 Several commenters criticized the proposed rule pertaining to ground-water monitoring for a number of other reasons. 

Some thought the reference to "significant ground-water resource" was vague. Others believed that the proposed rule 

would illegally limit the monitoring requirement. OSM has made adjustments in the language of the final rule to address 

these concerns. 

 Under the proposed rule, if the PHC determination indicated that adverse onsite or offsite impacts might occur to a 

significant ground-water resource or if required by the regulatory authority, then the application would include a 

ground-water monitoring plan. The preamble made clear that it was OSM's intent that such action would be approved by 

the regulatory authority only after careful evaluation and that the foregoing of monitoring would apply only to water 

supplies of "marginal use or when no appreciable adverse impacts are anticipated." [47 FR 27718]. 

 The final rule more clearly provides for OSM's expressed intention for a limited monitoring exemption with close 

review by the regulatory authority as to whether the particular resource at issue will not serve "as an aquifer which 

significantly insures the hydrologic balance within the cumulative impact area * * *." As an added protection, the 

regulatory authority has the discretion to deny a request for a waiver for a particular resource if it determines that the 

resource has significance for the hydrologic balance. 

 One commenter objected to eliminating the requirements for monitoring such parameters as ground-water levels, 

infiltration rates, subsurface flow, and storage characteristics. The reviewer thought that OSM was letting the 

post-mining land use be the controlling factor for monitoring. The commenter urged consideration of ground water in the 

support of fish and wildlife and other resources. 

 The final rules do not require analysis or monitoring of all the parameters specified by the commenter in every case. 

Rather, depending upon the results of the PHC determination, part or all of this kind of supplemental information may be 

necessary at the discretion of the regulatory authority as provided for in Section 780.21(b). As for the commenter's 

second point, the postmining land use is only one of several factors governing actions to protect ground water. 

 One commenter thought that adverse effects to "currently used" ground-water resources as well as "significant" 

resources should be included so that even lower yielding and/or quality aquifers would be protected, an important 

consideration in the western States. 

 OSM agrees with this reasoning. The final rule is broad enough to allow for such consideration. 

 Several commenters supported the proposed ground-water monitoring exclusion believing that it would result in a 

more realistic and workable monitoring program. 

 OSM believes that monitoring will be the general rule. It has defined the very limited circumstances when monitoring 

of a ground-water resource may not be required. 

 One commenter objected to deleting the general requirement for monitoring all water resources in order to determine 

the effects of surface mining activities, which appeared in previous Section 816.52(a) 
 Generally the final rules require the monitoring of ground-water resources. The exemption which OSM has provided 

has been narrowly drawn and requires the operator seeking the exemption to demonstrate to the regulatory authority that 

a particular resource has a limited effect, if any, on the hydrologic balance. In any event, baseline information will be 

available for all ground-water resources. 

 Numerous commenters suggested that although a ground-water resource may be determined not to be "significant" in 

its own right, nevertheless it may supply water to other ground-or surface-water resources that are significant. 

Commenters feared that relaxation of monitoring requirements might allow contamination of significant resources by the 

acidic, toxic, or other poor qualities of non-significant ground water. Commenters especially feared that these marginal 

resources might be the only supplies available for fish and wildlife. 

 As was discussed above, OSM has modified the final rule to focus on the relationship the ground-water resource has 

to the hydrologic balance. Issues of the interconnected nature of the water bodies and use by wildlife have to be resolved 

to the satisfaction of the regulatory authority. The number of ground-water resources eligible for the waiver will be 

limited. No lowering of environmental protection or loss of resources which will be useful in the future is expected. 

Finally, regardless of the site specific conditions which might appear to allow a ground-water monitoring exemption, the 

regulatory authority has the responsibility to require monitoring if it determines that such action is necessary to protect 

the hydrologic balance of the area. 

 Similarly, several commenters suggested that the ground-water monitoring exclusion should include consideration of 

surface-water resources as well as ground-water resources. They argued that this inclusion would help minimize potential 

for ground-water contamination through interconnected and contaminated surface waters. 

 OSM agrees with this reasoning. The final rule takes into account adverse effects to surface-water resources because 

they are part of the total hydrologic balance. 

 Several reviewers wanted OSM to provide guidance regarding the terms "significant" and "marginal" as used in the 

proposed rule and the preamble. Suggestions included using the term "ecologically significant" and taking into account 

both present and future uses of ground-water resources. 

 OSM has modified the rule so that the focus is on adverse effects to the hydrologic balance rather than the significance 

or marginality of an individual resource. Current and potential uses of the ground-water resource would be relevant to 

any decision for waiver of monitoring. 

 A number of commenters suggested that OSM replace the proposed quarterly monitoring requirements with a more 

flexible schedule. Reasons offered in support of this position included: the burden and expense of monitoring, the 

slowness of detectable changes in ground-water quality, the lack of quality changes following the first year of operation, 

variability of local hydrologic and seasonal conditions which affect monitoring such as ice and snow cover, and the 

regulatory authority's knowledge of local conditions. 

 OSM agrees that a variety of factors can affect schedules for monitoring. However, the quarterly monitoring 

requirement does not impose an undue burden on operators and it will help identify any hydrologic problems that may 

develop during mining. the final rule allows the regulatory authority to require more frequent monitoring on a 

case-by-case basis. Such decisions should rely on baseline hydrologic and geologic information, PHC findings and the 

CHIA. If during mining and reclamation the monitoring has demonstrated that the hydrologic protection requirements are 

met or that monitoring is no longer necessary to achieve its purposes, the monitoring frequency may be adjusted in 

accordance with Section 816.41(c)(3). 

 Three commenters wanted to see all ground-water resources monitored. They thought that the protection 

requirements of the Act could not be met without monitoring and that early-warning capabilities would be lost. 

 OSM disagrees with the commenter's characterization of Congress' intent with respect to the amount of required 

monitoring. Throughout the legislation, the focus is on the protection of the hydrologic balance as a whole. Therefore, 

attention to and individual water resource relates to its connection with this larger issue of protection of the hydrologic 

balance. 
 The narrow exception to monitoring, which the final rules provide, requires careful scrutiny of the effects such action 

may have on the hydrologic balance. The regulatory authority will be able to take into account a broad range of 

considerations before authorizing a particular waiver. Commenters have raised numerous areas of concern, for example, 

potential use, current use, wildlife, interconnectedness of resources, and early-warning factors. OSM views these as 

relevant to the regulatory authority's decision. 

 One commenter wanted to see the reporting requirements contained in previous Section 816.52(a)(3) added to the 

final rule. 

 The final rule includes provisions requiring operators to report both surface- and ground-water monitoring 

information to the regulatory authority. 

 Several commenters wanted OSM to delete the list of parameters to be monitored. Others thought the measurement 

for total manganese was inappropriate under alkaline conditions. They also suggested using "settleable solids" instead of 

suspended solids. 

 As was discussed previously, the monitoring required under the final rule is not considered to be excessive and will 

serve the operator and regulatory authority as a standard against which impacts can be measured. With respect to the 

analysis of manganese, the predictability of the occurrence of manganese does not directly correlate with typically 

"alkaline conditions." Although in many cases alkaline conditions make manganese less important, no clear line of 

applicability can be drawn. This, coupled with the relatively low cost of the analysis, lends support for the adoption of 

this test. 

 The suggestion to require monitoring of settleable solids has not been accepted where ground water is concerned. 

Settleable and suspended solids are associated almost exclusively with surface waters, but not ground water since they 

become naturally filtered by subsurface ground-water movement. Thus, the analysis of total dissolved solids is most 

applicable for routine ground-water evaluation. Analysis of total dissolved constituents along with other baseline 

information will serve as indicators of potential problems and may point to the need for additional or more specific 

analysis, which can be done at a relatively low cost. For surface waters, monitoring requirements for settleable solids will 

be established by the NPDES permitting authority. 

 Two commenters proposed deleting provisions allowing the regulatory authority to add monitoring requirements and 

instead only authorize considering "significant" impacts to water resources. The commenters thought that section 

517(b)(2) of the Act specified when ground water must be monitored and that since the regulatory authority approved 

monitoring plans the provision regarding additional requirements was redundant. 

 The commenters have misunderstood the meaning of section 517(b)(2) of the Act. It does not limit monitoring to 

situations where there are significant impacts to water resources. Instead it calls for monitoring when an operation will 

remove or disturb strata which serve as aquifers which have significance for the hydrologic balance. Given OSM's 

recognition of the importance of considering specific conditions, it is necessary for the regulatory authority to have the 

flexibility to require the appropriate level of monitoring. 

 

SECTIONS 780.21(j) and 784.14(i) - SURFACE-WATER MONITORING PLAN. 

 Final paragraph (j) requires the application to contain a surface-water monitoring plan. This plan will be based upon 

the findings of the PHC determination and analysis of the baseline hydrologic, geologic, and other relevant information 

included in the application. 

 The plan must relate to the suitability of the surface water for current and approved postmining land uses, to the 

objectives set forth in the hydrologic protection plan under paragraph (h), and to U.S. Environmental Protection Agency 

(EPA) effluent limitations found at 40 CFR Part 434. The application must identify the surface-water quality and quantity 

parameters to be monitored, sampling frequency, and monitoring site locations and must describe how the data collected 

will be used to determine the impacts of the operation upon the hydrologic balance. 
 At all monitoring locations in surface-water bodies which may be potentially affected by the impacts of the operation 

or into which water is to be discharged and at upstream monitoring locations, the following parameters must be 

monitored: total dissolved solids or specific conductance corrected to 25 deg.C, pH, total suspended solids, total iron, 

total manganese, and flow. Additionally, in the case of all point source discharges, monitoring must be conducted in 

accordance with EPA permitting and monitoring requirements (40 CFR Parts 122, 123 and 434) and as required by the 

National Pollutant Discharge Elimination System permitting authority. 

 These data must be reported to the regulatory authority every 3 months. The regulatory authority may require 

additional monitoring on a case-by-case basis. 

 Some changes were made to the language of the paragraph to clarify the interrelationship between the surface-water 

monitoring plan and certain other findings and data included in the permit application. In response to comment from the 

U.S. Environmental Protection Agency (EPA), monitoring of point source discharges must be conducted to accord with 

the requirements of 40 CFR Parts 122, 123, and 434 and as otherwise required by the National Pollutant Discharge 

Elimination System permitting authority. 

 One commenter thought that proposed paragraph (k) did not recognize the need, as stated in prior Section 816.52, for 

monitoring to be adequate to measure and record the quality and quantity of discharges from the permit area. The 

commenter feared that restricting required accuracy to that sufficient to meet postmining land uses would not recognize 

the continuing need to analyze changes in numerous parameters so as to anticipate and prevent unforeseen changes. The 

commenter also objected to an alleged deletion of a requirement for joint NPDES/OSM permits, contending that this 

flew in the face of regulatory reform. 

 The final rule for the surface-water monitoring plan does not inappropriately limit the degree of accuracy required for 

monitoring. Monitoring is to be based on the PHC determination and must be sufficient to measure the suitability of the 

surface water for current and approved postmining land uses, to meet the objectives for protecting the hydrologic balance 

as set forth in the plan required by paragraph (h), as well as to meet EPA effluent limitations. Monitoring for these 

objectives should result in the data necessary to indicate any unforeseen changes. In turn, this paragraph, coupled with 

the requirements of Section 816.41(e), will allow for prompt response to indications of changes in the form of 

noncompliance with permit conditions. Finally, previous Section 816.52 did not involve the issuance of joint permits 

between EPA and OSM. OSM has advanced the goal of regulatory reform by clarifying the monitoring procedures it will 

expect from an operator. 

 One commenter proposed deleting the monitoring locations for impoundments "into which water will be discharged." 

The commenter thought that potential impacts would have been brought out in the PHC determination and that 

impoundments would be monitored as point source discharges under the EPA rules adopted by OSM at Section 816.42. 

 The commenter misunderstands the intent of the referenced language. Whether or not monitoring is conducted of all 

impoundments into which water is discharged will be determined by the regulatory authority based upon the PHC and the 

need to protect the hydrologic balance. If monitoring of such bodies of water is appropriate, paragraph (j)(2) indicates 

the minimum parameters to be reported. Additionally, receiving waters may not always involve a point source discharge 

covered by an NPDES permit, and monitoring of discharges only may not indicate possible problems with meeting the 

water-quality standards of the receiving stream. Therefore, monitoring at such sites is included in the final rule. 

 

E. HYDROLOGIC BALANCE PROTECTION PERFORMANCE STANDARDS ( SECTION 816.41 AND 

817.41) 

 

SECTIONS 816.41(a) and 817.41(a) - GENERAL. 

 Paragraph (a) outlines the general goals for the hydrologic balance section which are to minimize disturbance to the 

hydrologic balance within the permit and adjacent areas, to prevent material damage to the hydrologic balance outside the 

permit area, and to support approved postmining land uses in accordance with the terms and conditions of the approved 

permit and other relevant performance standards in Parts 816 and 817. In the case of surface mining activities, the 

conduct of the operation must also assure the protection or replacement of water rights. (This distinction comports with 

the decision in re: Permanent Surface Mining Regulation Litigation, C.A. No. 79-1144 (D.D.C. May 16, 1979)). Also 
under paragraph (a), the regulatory authority may impose additional preventive, remedial, and monitoring measures to 

ensure that material damage outside the permit area is prevented. Finally, the rule indicates that mining and reclamation 

practices that minimize water pollution and changes in flow are preferable to water treatment. 

 The final rule highlights the distinction which the Act draws between minimizing disturbance to the hydrologic balance 

in the permit and adjacent areas and preventing material damage to the hydrologic balance outside the permit area. (See 

sections 510(b)(3) and 515(b)(10) of the Act.) 

 Two commenters raised an issue specific to the underground mining performance standard ( Section 817.41(a)). They 

recommended that the phrase "to assure protection of water rights" be deleted because section 516(b)(9) of the Act did 

not mention protection of water rights. The commenters referred to Judge Flannery's decision, In re: Permanent Surface 

Mining Regulation Litigation, C.A. No. 79-1144 (D.D.C. May 16, 1979), which ruled that operators of underground 

mines were not required to replace water if it were lost. A similar argument was raised for Section 817.41(c). These 

comments have been accepted and the appropriate deletions have been made. 

SECTIONS 816.41(b) and 817.41(b) - GROUND-WATER PROTECTION. 

 Paragraph (b) begins by stating the goals of this performance standard, namely to protect the hydrologic balance by 

following the plan approved under Section 780.21(h) or 784.14(g). 

 Ground-water quality must be protected by handling earth materials and runoff so as to minimize acidic, toxic or other 

harmful infiltration into the ground-water systems. Excavations and other disturbances must be managed to prevent or 

control the discharge of pollutants into such systems. Ground-water quantity must be protected by handling earth 

materials and runoff in order to restore the approximate premining recharge capacity of the reclaimed area, excluding 

coal mine waste disposal areas and fills, so as to allow for the movement of water to the ground-water system. 

 Changes have been made from the proposed rule to specifically include reference in the final rule to the hydrology 

protection plan required by Sections 780.21(h) and 784.14(g) and to simplify the language of paragraph (b)(2) by simply 

referencing restoration of the recharge capacity of the reclaimed area as required by the Act and as was provided in 

previous Section 816.51. 

 The proposed reference to "coal-processing wastes" has been replaced by the more general phrase "coal mine waste." 

This accords with OSM's revised rules dealing with disposal of coal mine waste. 

 Two commenters stated that the new provision which emphasized water availability rather than recharge capacity 

would have the potential to add significant new responsibilities for operators in restoring subsurface storage and flow 

capability. The commenters contended that OSM had not provided a justification in law or fact for the change. The 

commenters believed that restoration of recharge capacity was sufficient to assure that ground-water supplies would

continue to be adequate for meeting postmining land use needs. 

 Another commenter stated that OSM had not defined or explained the use of the term "water availability" in the 

proposed rules and questioned its use as a substitute for the term "recharge capacity." 

 The final rule has been revised to specify restoration of recharge capacity rather than water availability. This change is 

in accord with section 515(b)(10)(D) of the Act. OSM disagrees, however, with the commenter's reasoning on water 

availability. OSM's emphasis in the proposed rule on water availability rather than recharge capacity accords with 

Congress' intent for water availability in ground-water systems after mining and reclamation to be similar to that which 

existed prior to mining. This comports with the requirement of section 507(b)(11) of the Act that the regulatory authority 

assess "the probable cumulative impacts of all anticipated mining in the area upon the hydrology of the area and 

particularly upon water availability" prior to issuing a mining and reclamation permit. [Emphasis added] However, OSM 

has redrafted paragraph (b)(2) to specifically reference recharge capacity as was set forth in the previous rules and has 

included an introductory paragraph in final Section 816.41(b) referencing required compliance with the hydrology 

protection plan of Sections 780.21(h) and 784.14(g). Although recharge capacity is only one characteristic of the 

reclaimed area's ability to transmit water to ground-water systems, if this characteristic is assured, the availability of 

water in most cases will likewise be assured. Additional measures necessary to protect ground-water quantity beyond 
re-establishing premining recharge capacity will be identified in the PHC and CHIA for the mine and included in the 

hydrology protection plan. 

 One commenter suggested that the language in proposed paragraph (b)(2) should be rephrased to allow the regulatory 

authority to take into consideration the feasibility of restoring subsurface storage and flow capability of the reclaimed 

area. 

 Reclamation considerations are basic to the issue of whether a proposed operation can be permitted. Although 

requirements for restoration of subsurface storage and flow capability have not been included in the final rule, restoration 

of approximate recharge capacity is required. The requirement comports with the environmental protection performance 

standards of the Act, particularly section 515(b)(10)(D). Any additional requirements necessary to protect ground-water 

quantity will be included in the hydrology protection plan under Sections 780.21(h) and 784.14(g). 

 One commenter recommended that the proposed requirement to restore approximate premining water availability be 

modified to account for water level drawdown induced by ground-water development by other industrial, commercial, 

and residential users which occurred during the period of the mining operation. 

 Reference to "water availability" has been deleted from the final rule as explained above. However, if the situation 

described by the commenter were to occur, then the regulatory authority would take the baseline data on water 

availability and withdrawals by the mine operator into account at the time of reclamation. Obviously, the mine operator 

cannot be held responsible for water that has been withdrawn by other industrial, commercial, and residential users. 

 Two commenters recommended substituting the words "water resources" for "water availability" in proposed 

paragraph (b)(2). The commenters thought that this would clarify that the water resource must be protected. They 

contended that OSM did not have the authority to require restoration of private water supplies. 

 As indicated, the final rule deletes the use of the term "water availability." Replacement of private water supplies is, 

however, required under Section 816.41(h) and section 717 of the Act for surface mining activities. 

 One commenter suggested replacing the phrase "storage and flow capability" with the phrase "flow system" in 

proposed paragraph (b)(2). According to the commenter, since the overburden which is backfilled in place of the 

removed resource has different physical and chemical properties, its storage and flow capabilities would differ. 

 OSM agrees with the commenter's view regarding the character of backfilled materials. Under the final rule, these 

changes can be considered in completing the required PHC and CHIA for the mine. 

 

SECTIONS 816.41(c) and 817.41(c) - GROUND-WATER MONITORING. 

 Paragraph (c) requires that ground-water monitoring be conducted according to the approved monitoring plan. The 

regulatory authority may require additional monitoring. The monitoring data must be submitted on a quarterly basis or 

more frequently as prescribed by the regulatory authority. When the analysis indicates noncompliance with permit 

conditions, then the operator must promptly notify the regulatory authority and take the actions prescribed under revised 

Sections 773.17(e) and 780.21(h) or 784.14(g). 

 The ground-water monitoring must continue until bond release. Consistent with the permit revision rule ( Section

774.13), the regulatory authority may modify the requirements if the operator demonstrates, using the already collected 

monitoring data, that: (1) The operation has minimized disturbances to the hydrologic balance in the permit and adjacent 

areas and prevented material damage outside the permit area; the water quantity and quality are suitable for supporting 

approved postmining land uses; and the water rights of others have been protected or replaced (in the case of surface 

mining operations); or (2) monitoring is no longer necessary to achieve the purposes which were set out in the approved 

monitoring plan. Paragraph (c) also requires the proper installation, operation, maintenance, and removal of monitoring 

equipment or structures so that the landowners do not have to assume such costs. 

 The final rule is substantially similar to the proposed rule. Paragraph (c)(2) elucidates what the monitoring reports 

must contain. The language adopted appeared in proposed paragraph (e)(2) for surface-water monitoring. Paragraph 

(c)(2) also identifies what actions must be taken when the analysis from monitoring indicates noncompliance with permit 
conditions. This addition was prompted by a comment from the EPA. Such actions are spelled out generally in the 

permitting requirements at Section 773.17(e) and more particularly for hydrologic concerns in the hydrology protection 

plan under Section 780.21(h) (784.14(g)). The conditions to be met prior to regulatory authority approval for 

modification of monitoring requirements have been clarified. A reference to the permit revision requirements has been 

added to illustrate that modifications to the monitoring plan must be considered to be a permit revision. 

 One commenter suggested that the word "availability" in proposed paragraph (c)(3)(i) be replaced by "quantity." OSM 

has accepted this suggestion. 

 One commenter thought that OSM did not present any evidence to support the decision to allow the regulatory 

authority, in the absence of monitoring, to decide on bond release. The commenter observed that monitoring is 

conducted not only to meet the requirements of the monitoring plan but also to check on the mining and post-mining 

conditions on and off the site. 

 Section 816.41 does not establish standards for bond release. However, under paragraph (c)(3) monitoring is required 

to continue until bond release unless the operator demonstrates that monitoring is no longer needed for its intended 

purpose or to demonstrate compliance. Such a change may only be made in accordance with the requirements for permit 

revisions. If there are conditions or events on a specific site that require monitoring for longer periods of time, then 

continued monitoring would be required by the regulatory authority. 

 Standards for bond release are contained in section 519 of the Act and are implemented in 30 CFR 800.40 (48 FR 

32962, July 19, 1983). While monitoring is not specifically required to allow bond release, the regulatory authority must 

evaluate the completed reclamation operations, including considering whether pollution of surface or ground water is 

occurring and the probability of continuance of such pollution before releasing the bond. Section 816.41(c) provides the 

regulatory authority sufficient flexibility to require monitoring in support of this evaluation when necessary. Under 

Section 800.40(c)(3) no bond shall be fully released until reclamation requirements of the Act and permit are fully met. 

 

SECTIONS 816.41(d) and 817.41(d) - SURFACE-WATER PROTECTION. 

 The reorganization of paragraph (d) parallels that of the ground-water protection paragraph. The general goal and 

requirement to comply with the hydrology protection plan of Sections 780.21(h) and 784.14(g) are summarized at the 

beginning because they apply to surface-water quality and quantity protection. Some of the language of paragraph (d)(1) 

has been changed to follow the statutory language found at section 515(b)(10) of the Act. Also certain redundant 

language has been removed. Actions to protect surface-water quantity will be identified in the surface-water protection 

plan. The connection between this plan and the performance standard are made more clear. 

 Paragraph (d)(1) requires operators to protect surface-water quality by minimizing the formation of acidic or toxic 

drainage and by preventing, to the extent possible using the best technology currently available, the contributions of 

suspended solids to streamflow outside the permit area and by otherwise preventing water pollution. If reclamation and 

remedial practices are not adequate to meet the requirements of Sections 816.41 and 816.42, then water-treatment 

facilities or water-quality controls must be used. Surface-water quantity and flow rates must be protected by following 

the steps outlined in the approved surface-water protection plan. 

 One commenter thought that Congress intended to control erosion and suspended solids only during active mining. 

The commenter questioned why OSM was requiring perpetual sediment and erosion control after reclamation had been 

completed. 

 The commenter has misunderstood the intent of the Act and the rules. Section 701(27) of the Act coupled with 

section 515(b)(10)(B) make it clear that the responsibility of the operator to prevent additional contributions of 

suspended solids to streams continues through reclamation until bond release. 

 

SECTIONS 816.41(e) and 817.41(e) - SURFACE-WATER MONITORING. 

 Paragraph (e) requires that surface-water monitoring be conducted according to the approved monitoring plan. The 

regulatory authority has flexibility to require additional monitoring. The monitoring data must be submitted on a quarterly 

basis to the regulatory authority, or more frequently as prescribed by the regulatory authority. It must include analytical 
results from each sample taken during the reporting period. In the case of a permit violation, sampling results must be 

submitted promptly to the regulatory authority and the protective steps taken as set forth in Sections 773.17(e) and 

780.21(h). The reporting requirements of paragraph (e) in no way exempt an operator from complying with NPDES 

reporting requirements. 

 Monitoring must proceed through bond release. However, if certain conditions are met, the regulatory authority may 

modify monitoring requirements, except those required by the NPDES permitting authority. To allow a modification, the 

conditions which must be demonstrated by the operator using the monitoring data are: (1) That the operation has 

minimized disturbance to the hydrologic balance in the permit and adjacent areas and prevented material damage outside 

the permit area; that the quality and quantity of the water are suitable for approved postmining land uses; and that, in the 

case of surface coal mining activities, the water rights of other users have been protected or replaced; or (2) monitoring is

no longer necessary to achieve the purposes which were set out in the approved monitoring plan ( Section 780.21(j)). 

Finally, monitoring equipment and structures must be properly installed, operated, and maintained and must be removed 

by the operator when no longer needed. 

 Some commenters thought that in contrast to the prior rule, Section 816.52(b), the proposed rule lowered the 

standards for monitoring and thereby limited the ability of the regulatory authority to assess the impact of mining upon 

the hydrologic balance and to notice sub-critical changes in water quality and quantity that might be indicators of damage 

to other resources. 

 OSM disagrees. Monitoring must be conducted in accordance with the approved monitoring plan under which key 

parameters must be monitored to protect the hydrologic balance and which has to be based upon the PHC determination 

and other baseline information. The final rule gives more discretionary power to the regulatory authority to adjust 

monitoring requirements to match the conditions that may occur at an individual mine site. This flexibility will result in 

better protection of the environment because it allows site specific adjustments. Such action fully complies with the Act. 

 Two commenters opposed the proposed 3-month reporting requirement. One of these also suggested substituting the 

phrase "any surface-water sample" which appeared in proposed paragraph (e)(2) with the phrase "point source 

discharges." 

 These comments are rejected. First, it is reasonable to require monitoring on a quarterly basis to identify hydrologic 

impacts that may occur during mining and provide the operator with an opportunity to institute remedial measures if 

necessary. (Quarterly reporting was also required under previous Section 816.52(b)(1)(iii).) The final rule also gives the 

regulatory authority the discretion to require submission of monitoring data at a more frequent interval when appropriate. 

Second, use of the phrase "point source discharges" in this paragraph would not be sufficiently inclusive. OSM's intent is 

to have monitoring for point source discharges as well as other surface-water bodies. 

 Another commenter believed that the deletion of the requirement to report NPDES noncompliance would complicate 

both the applicant's and the regulatory authority's part in coal resource development. 

 The commenter has misinterpreted the intent of the proposed rules. Compliance with NPDES standards is part of the 

terms and conditions of a SMCRA permit. Noncompliance with any term or condition of a permit requires prompt 

notification of the regulatory authority. 

 One commenter questioned allowing the discontinuance of monitoring at bond release even when the disturbance to 

the hydrologic balance had been minimized, the post-mining land uses had been supported, and water rights were 

protected. The commenter feared that some areas could still show contamination of effluent quality that might be 

injurious to other resources or indicative of problems that were still unsolved. 

 Under the final rules for bond release, the regulatory authority must determine that disturbance to the hydrologic 

balance has been minimized in the permit and adjacent areas and that material damage has been prevented outside the 

permit area. While the performance standards for surface- and ground-water monitoring allow a regulatory authority to 

modify monitoring requirements based on certain showings, nevertheless it retains the responsibility to determine that the 

regulatory requirements have been met prior to bond release. 

 
SECTIONS 816.41(f) and 817.41(f) - DRAINAGE FROM ACID- AND TOXIC-FORMING MATERIALS. 

 Paragraph (f) appeared as Section 816.41(g) in the proposed rules. 

 The final rule requires that the drainage from acid- and toxic-forming material be avoided by identifying, treating or 

burying, and, when necessary, burying and treating such materials in order to prevent adverse effects to water quality, to 

vegetation, or to public health. Section 817.41(f) also applies to underground development waste. Storage of such 

materials must be limited to the period until burial and/or treatment first become feasible and so long as storage will not 

result in any risk of water pollution or other environmental damage. Storage or treatment must be conducted in a manner 

that will protect the surface water and ground water by preventing erosion and polluted runoff. The practices used for 

storage, burial, or treatment must be consistent with other material handling and disposal provisions of 30 CFR Chapter 

VII. 

 Paragraph (f) has been adopted substantially as proposed. By including the word "and" in the last sentence of 

paragraph (f)(1)(ii), OSM is emphasizing that in no case will storage be permissible if to do so will result in water 

pollution or other environmental damage. Paragraph (f)(2) points out that practices for dealing with acid- or 

toxic-forming materials must be consistent with other material handling and disposal provisions in the final rules. 

 Two commenters supported not setting the 30-day storage limitation which appeared in the previous rules at Section

816.48. They considered such a requirement as frequently impractical. 

 One of these also endorsed the concept that both treatment and burial of acid- and toxic-forming materials may not be 

required. 

 Under the previous rules, treatment and burial were not required in all cases. And temporary storage of spoil was 

permissible under Section 816.48 if approved by the regulatory authority upon a finding that such action would not result 

in any material risk of water pollution or other environmental damage. Although OSM has deleted the 30-day limit on 

storage, the final rule continues to require that water quality and the environment must be protected. 

 Noting the proposed elimination in the backfilling and grading rule of the requirement to cover toxic- and 

acid-forming materials with 4 feet of soil ( Section 816.103(a)), one commenter thought it would be difficult for the 

applicant to decipher what the regulatory authority would accept with regard to protection of the hydrologic balance 

from the adverse effects of offensive spoil. The commenter believed that the modifications proposed for Section

816.41(g), together with the elimination of the 4-foot cover requirement in Section 816.103(a) would have the 

cumulative effect of lowering the protection afforded the environment. 

 OSM disagrees with this conclusion. The final rule requires burial and/or treatment of acid- and toxic-forming 

materials so that no pollution of surface or ground water occurs, and so that no harm comes to the environment or public 

health and safety. Paragraph (f)(2) requires the management practices to be consistent with provisions that direct the 

handling and disposal of materials. 

 OSM is aware of the many potential problems that attend the proper disposal of toxic materials. However, a national 

standard for cover thickness is not the solution or solutions to these problems. Instead the regulatory authority should set 

whatever standards, specific or otherwise, provide the best solution or solutions within the State. In some instances, 4 

feet of cover may be inadequate to provide the requisite protection. The difficulties operators may have in understanding 

the requirements can be avoided by allowing the State regulatory authorities to set, and encouraging them to explain, 

standards designed for local conditions. 

 The same commenter opposed deleting the requirement that acid- or toxic-forming materials be stored on 

impermeable material (previous Section 816.48(c)), fearing that with proposed changes in the monitoring provisions the 

detection of environmental damage would be difficult. 

 This comment was rejected. The final rule requires storage of potentially acid- or toxic-forming material in a manner 

that will protect surface and ground water. While this may require impermeable liners in some cases, such a general 

requirement is overbroad and would impose undue expense and potential disturbance of otherwise undisturbed areas in 
order to obtain the impermeable material. Under the final rule, the regulatory authority can require impermeable liners 

where necessary. Additionally, the final rules require sufficient monitoring to ensure that the hydrologic balance is 

protected. 

 One commenter suggested including "treatment" along with storage as a method for dealing with the problem of 

drainage from acid or toxic materials. 

 OSM has accepted this suggestion because if storage of toxic- and acid-forming material is expected to cause water 

pollution or other environmental damage prior to its safe burial, then treatment of such material may be necessary. 

 

SECTION 816.41(g) and 817.41(g) - TRANSFER OF WELLS 

 Paragraph (g) appeared as Section 816.41 (h) in the proposed rule. The final rule provides that exploratory or 

monitoring wells must either be sealed in accordance with Sections 816.13 to 816.15, or, with the prior approval of the 

regulatory authority, be transferred to another party for further use. The conditions of the transfer must comply with 

State and local law. The permittee will remain responsible for the proper management of the transferred well until bond 

release in accordance with the requirements of Sections 816.13 to 816.15. 

 One commenter observed that unlike the prior rule the proposed rule did not address the question of liability. The 

commenter argued that under the proposal, determinations of liability based on local and State laws would be difficult 

because of confusion or deliberate maneuverings. 

 Based on the language of section 515(b)(10)(A)(iii) of the Act, the permittee retains responsibility for the proper 

casing, sealing, and managing of wells during all surface coal mining and reclamation operations. So long as the permittee 

remains responsible, there is no need for the rule to address the responsibility of the transferee or to establish categories 

of primary and secondary liability. The final rule does not preclude the permittee and the transferee from entering into 

private arrangements whereby the transferee could assume contractual obligations regarding the well. Similarly the final 

rule does not prevent a State from imposing additional obligations on a transferee. The final rule clarifies the operator's 

responsibility by specifying that the permittee remains responsible under the Act for proper management of the well until 

bond release. 

 

SECTIONS 816.41(h) - WATER RIGHTS AND REPLACEMENT 

 Final Section 816.41(h) appeared as proposed Section 816.41(i) and requires any person who conducts surface mining 

activities to replace the water supply of an owner of interest in real property who obtains all or part of his supply for 

domestic, agricultural, or other legitimate use from an underground or surface source which has been adversely impacted 

by contamination, diminution, or interruption proximately resulting in from the surface mining activity. The impact of the 

mining operation on the water resource must be determined by using the baseline information developed during the 

permitting process. 

 One commenter recommended deleting the proposed word "suitable" because it was a subjective term. The 

commenter suggested that the second sentence read "The water supplies shall be replaced with an alternative source of 

equal of better quality and quantity to the per-impacted supply." Another commenter suggested modifying the language 

in the second sentence of proposed paragraph (i), so that the operator need supply water of a suitable quality or 

quantity only if the water supply in question previously could have met the requirements of the postmining land use. 

 OSM has responded to these comments by deleting the second sentence of the proposed rule which contained the 

language objected to by the commenters. This sentence is unnecessary since it is implicit in the requirements of section 

717(b) of the Act, which are repeated in the first sentence of paragraph (h), that the alternative water supply must be 

capable of restoring the water user's supply which was lost due to surface mining impacts. The requirements of paragraph 

(h) to replace water supplies are thus tied to pre-existing uses and not the postmining land use. 

 One commenter believed that the issue of water rights operated strictly in accordance with State water law and 

suggested language changes to emphasize the point. 
 OSM agrees that water rights operate in accordance with State water law and that the requirements under the Act do 

not change these rights except for requiring operators of surface coal mines to replace affected water supplies. First, 

section 717(a) of the Act makes this clear by providing that the Act does not affect the right of any person to enforce or 

protect, under applicable law, his or her interest in water resources. Second, section 717(b) of the Act and paragraph (h) 

require that a use be a "legitimate" use before it can qualify for replacement. Any use that would be in violation of State 

water rights would not be a "legitimate" use. Thus, no change is required in the final rule to accommodate the 

commenter's concern. 

 

SECTIONS 816.41(i) and 817.41(h) - DISCHARGE OF WATER INTO AN UNDERGROUND MINE. 

 Final Sections 816.41(i) and 817.41(h) appeared as Sections 816.41(j) and 817.41(i) in the proposed rules. The final 

rules provide that the discharge of water into an underground mine is prohibited, unless it can be demonstrated to the 

satisfaction of the regulatory authority that the discharge will minimize disturbance to the hydrologic balance on the 

permit area, prevent material damage outside the permit area, meet with the approval of the Mine Safety and Health 

Administration, not violate applicable water-quality standards and effluent limitations, and be of known quality and 

quantity to meet the effluent limitation in Sections 816.42 and 817.42 for pH and total suspended solids. The pH and 

TSS standards may be exceeded if they are approved by the regulatory authority. Permissible discharge materials are 

limited to the six kinds of material listed in the previous rules, with the addition of a seventh, water. The final rule is 

substantially similar to the previous rule, which was codified at Sections 816.55 and 817.55. 

 OSM has moved language appearing in proposed Section 817.41(j)(1) to final Section 817.41(h)(3). The rule allows 

water from an underground mine to be diverted into other underground workings provided the requirements of the 

section are met. The transfer of the language from paragraph (j) to (h) was made for organizational purposes and has no 

substantive effect. 

 One commenter suggested that trash and garbage be added to the list of wastes that could be discharged into an 

underground mine. The commenter asserted that this method of disposal might in many cases be more environmentally 

sound than disposal by incineration or burial in a surface landfill. 

 OSM rejects this suggestion because of the potential of degrading the quality of ground water. Revised Sections

816.89 and 817.89 govern the disposal of non-coal mine waste. Also, the disposal of such materials is regulated by other 

laws. 

 The U.S. Environmental Protection Agency asked OSM to note in this rule that discharges into underground mine 

workings must be in compliance with any applicable requirements of the Underground Injection Control Program 

promulgated under Part C of the Safe Drinking Water Act (Pub. L. 93-523, as amended, 42 U.S.C. 300f et. seq .). The 

list of Class V wells in 40 CFR 146.05(e) includes sand backfill and other backfill wells used to inject a mixture of water 

and sand, mill tailings or other solids into mined out portions of subsurface mines whether what is injected is a 

radioactive waste or not. This provision may apply to the underground disposal method described in Section 816.81(f). 

At this time, the only requirements that apply to Class V wells are: (1) The inventory reporting requirement in 40 CFR 

122.37(c)(1); and (2) the general prohibition against contamination of underground sources of drinking water in 40 CFR 

144.12. 

SECTION 817.41(i) - DISCHARGE OF WATER FROM UNDERGROUND MINES. 

 Section 817.41(i) for underground mines was proposed as Section 817.41(j) and replaces previous Section 817.50. 

The essential requirements of the previous rule have been retained. The final rule requires that surface entries and 

accesses to underground workings be managed to prevent or control gravity discharges of water from the mine. Except 

for drift mines, the gravity discharge of water from an underground mine may be approved by the regulatory authority 

upon the demonstration that the untreated or treated discharge complies with the performance standards of Part 817 and 

any additional NPDES permit requirements. 

 Section 817.41(i) also provides that surface entries and accesses to drift mines which are used after the 

implementation of State, Federal, or Federal lands programs and which are located in acid- or iron-producing coal seams 

must be located in such a manner as to prevent any gravity discharges from such mines. 
 One environmental group thought that rewording the proposed rule by deleting the requirement of previous Section

817.50 for untreated discharges to meet effluent limitations could result in the need for perpetual treatment at mines, a 

requirement the commenters felt was not practicable under any circumstances. 

 OSM disagrees with this interpretation of the meaning of Section 817.41(i). This rule requires the untreated or treated 

gravity discharge from an underground mine to comply with the requirements of Part 817 performance standards and 

NPDES permit requirements. Under the requirements of Sections 817.41(a) and 817.42, point source discharges from 

underground mines must meet applicable effluent limitations and water-quality standards; minimize disturbances to the 

hydrologic balance; and support the approved postmining land use. Treated discharges must meet similar applicable 

requirements. The final rule merely combines the requirements for untreated and treated discharges into one sentence. It 

does not impose a requirement for perpetual treatment at mines. 

 The same commenter thought that the proposed definition of gravity discharge, when coupled with the provisions of 

proposed Section 817.41(i)(2) for drift mines, would defeat the intent of the Act to protect against discharges from ironor acid-bearing seams. 

 OSM does not agree with the conclusion reached by this commenter with respect to drift mines. Section 516(b)(12) of 

the Act requires that openings for all new drift mines be located to prevent a gravity discharge of water if the mine is 

located on an acid- or iron-producing seam. The definition for "gravity discharge" is in accord with the requirements of 

section 516(b)(12). This definition is discussed earlier in this preamble and, together with the requirements of this 

section, will provide the protection intended by Congress. 

 Two commenters recommended deleting proposed paragraph (i)(1) because in their opinion section 516(b)(12) of the 

Act did not authorize such regulation. 

 OSM disagrees with this assessment of its statutory authority. Section 516(b)(9) of the Act outlines what steps mine 

operators must take to minimize disturbance to the hydrologic balance including avoiding acid or other toxic mine 

drainage. Regulating all gravity discharges from underground mines comes within the scope of this statutory directive. 

 

F. DIVERSIONS (SECTIONS 816.43 AND 817.43) 

 The material covered in final Sections 816.43 and 817.43 for diversions appeared as Sections 816.41(f) and 817.41(f) 

in the proposed rules. The final rules for diversions have been adopted basically as proposed except as discussed below. 

Because the performance standards for diversion of intermittent and perennial streams and miscellaneous flows are 

identical except for two requirements, the rule has been restructured to reflect the similarities and to eliminate 

redundancy. Other minor language changes were also made for purposes of clarity. 

 In accord with the combination of previous Sections 816.43 and 816.44 and 817.43 and 817.44 into final Sections

816.43 and 817.43, respectively, the final rule also corrects the citations to these sections in Sections 780.29 and 784.22 

of the permitting rules. Section 784.22 is also renumbered as Section 784.29. No substantive change is intended by 

these revisions. 

SECTIONS 816.43(a) and 817.43(a) - GENERAL REQUIREMENTS. 

 Under paragraph (a)(1) a regulatory authority may approve the diversion from disturbed areas, by means of temporary 

or permanent diversion, of any flow from a mined area abandoned prior to May 3, 1978, and any flow from undisturbed

or reclaimed areas after meeting the criteria of Section 616.46 for siltation-structure removal. To grant approval, a 

regulatory authority must find that the diversion is designed to minimize adverse impacts to the hydrologic balance within 

the permit area, to prevent material damage to the hydrologic balance outside the permit area, and to assure the safety of 

the public. Diversions may not be used to divert water into underground mines unless the regulatory authority approves 

such action in accordance with Section 816.41(i). 

 The final rule revises the proposal to be in accord with the final definitions of permit area and adjacent area and the 

rule establishing requirements for sedimentation ponds. 
 Paragraph (a)(2) requires that the design, location, construction, maintenance, and use of the diversion and its 

appurtenant structures will ensure stability; provide protection against flooding and resultant damage to life and property; 

prevent additional contributions of suspended solids to streamflow outside the permit area; and comply with applicable 

Federal, State, and local regulations. 

 Final Section 816.43(a)(3) provides that when no longer needed, temporary diversions must be removed and the 

disturbed land restored in accordance with the requirements of Part 816. Prior to removing a temporary diversion, the 

operator must remove or modify, as necessary, downstream water-treatment facilities that would be adversely affected. 

This requirement will not alter the operator's responsibility to maintain required water-treatment facilities. 

 The design and construction of a permanent diversion and the reclamation of a stream after removal of a temporary 

diversion must restore or approximate the premining characteristics of the original stream and the natural riparian 

vegetation so as to promote the recovery and enhancement of the aquatic habitat. 

 The regulatory authority may specify additional design criteria for diversions. 

 Two commenters noted that unlike the prior rules at Section 816.44(d)(1), proposed paragraph (f)(1)(iv) did not call 

for the consideration of restoring riparian habitat during construction of permanent diversions and stream channels 

following removal of temporary diversions. They feared that this would lead to potentially significant impacts on riparian 

ecosystems and the esthetic quality of natural streams. OSM accepts this comment and has revised the rule accordingly. 

 Several commenters expressed concern with how the proposed rules dealt with assurances for the recovery of aquatic 

habitat. One thought that simply to augment the recovery and enhancement of aquatic habitat would result in significant 

environmental damage. Another thought the aquatic habitat requirements should not be applied to ephemeral streams as 

it was doubtful that such habitat existed on ephemeral streams in arid or semi-arid regions. Other commenters thought 

the recovery standard should be to minimize disturbance of the hydrologic balance and enhance the aquatic habitat where 

practical. They thought that such a standard would be more in line with section 515(b)(24) of the Act. 

 OSM's objective in paragraph (a)(3) is to achieve a condition after mining at least as good as the original condition. 

The requirements adopted will achieve this objective and at the same time will provide the operator with sufficient 

flexibility. Additionally, OSM disagrees with the commenters' characterization of the intent of section 515(b)(24) of the 

Act. That section calls for minimizing adverse impacts of fish, wildlife, and related environmental values to the extent 

possible using the best technology currently available and "enhancement of such resources where practicable." The 

language in the final rule allows operators to make technical innovations and improvements to achieve these goals 

without specifying all aspects of stream channel reconstruction. 

 One commenter argued that in the semi-arid West, restoring the erosional balance of the reconstructed stream was 

more important to successful reclamation than restoring aquatic habitat. He suggested including the requirement to 

restore or augment the natural erosional balance of the original stream channel. 

 Although OSM agrees that erosional balance is an important aspect of stream channel reconstruction, it is not of 

nationwide applicability. Moreover, because the erosional balance is not usually known and because land disturbances 

during the operations alter the characteristics of the materials used in reclamation, restoring the original erosional balance 

may be unwise or impossible. Section 816.95(a) of the final rules calls for stabilization of all surface areas to control 

erosion. This requirement would apply in the situation described by the commenter. 

 One commenter suggested deleting the provision authorizing the regulatory authority to specify design criteria. The 

commenter thought that the statement was unnecessary as the regulatory authority could reject any design not 

conforming to established criteria. 

 OSM rejects this comment. The final rules generally do not specify design criteria. They authorize the regulatory 

authority to prescribe criteria if requested to do so or if it considers such action necessary. For a further discussion 

related to design criteria, the reader is referred to OSM's "Final Environmental Impact Statement OSM-EIS-1: 

Supplement." 
 Two commenters objected to the language of the proposal giving regulatory authorities discretion to set design 

criteria. One of them seemed to suggest that the authority to specify design criteria be limited to case-by-case situations 

at the request of operators. 

 This approach would be impractical. The rules provide that the regulatory authority may, if it chooses, specify and 

publish design criteria for diversions. Such criteria would be available to all mine operators within the jurisdiction of the

regulatory authority, and each mine operator would have to comply. 

 One commenter viewed OSM's decision not to include restrictions on locations, sediment control measures, and 

design of the diversion as being unhelpful to first-time applicants when they prepared a permit application and to 

regulatory authorities when they reviewed and approved such applications. 

 Setting nationwide design criteria with respect to location, sediment control measures, etc., is unnecessary. These 

criteria should be known by qualified registered professional engineers who specialize in mining and reclamation 

operations. The final rules provide for professional engineers to certify the design and construction of the stream channel 

diversions and provide regulatory authorities the discretion to develop detailed design, construction, and maintenance

standards for diversion structures. 

 

SECTIONS 816.43(b) and 817.43(b) - DIVERSION OF PERENNIAL AND INTERMITTENT STREAMS. 

 In addition to the general requirements of paragraph (a), paragraph (b) sets the performance standards for the 

diversion of perennial and intermittent streams within the permit area. Diversions may be approved by the regulatory 

authority after finding that they will comply with findings in 30 CFR 816.57 related to stream buffer zones that there will 

be no adverse effect on water quantity and quality and related environmental resources of the stream. 

 The design capacity of channels for temporary and permanent diversions of perennial and intermittent streams must be 

at least equal to the capacity of the unmodified stream channel immediately upstream and downstream from the diversion. 

The requirement for a diversion to provide protection against flooding, as set forth at Section 816.43(a)(2)(ii), will be 

met if the diversion is designed so that the combination of channel, bank, and flood-plain configuration is adequate to 

pass safely the peak runoff of a 10-year, 6-hour precipitation event for a temporary diversion and a 100-year, 6-hour 

precipitation event for a permanent diversion. 

 OSM modified the proposed design criteria by substituting a 6-hour precipitation event for a 24-hour storm event. 

This change makes the diversion rules consistent with the rules for sedimentation ponds, Section 816.46(b), and 

permanent and temporary impoundments, Section 816.49. The rationale for the change in the design criteria is based on 

the following analysis. 

 The storm design event being adopted is consistent with the criteria of the Mine Safety and Health Administration 

(MSHA) published as "Design Guidelines for Coal Refuse Piles and Water, Sediment, or Slurry Impoundments and 

Impoundment Structures" (IR 1109). OSM recognizes that for some basins, depending on location, the 24-hour duration 

storm may result in a runoff volume somewhat higher than the 6-hour storm for the same area (See 44 FR 15207).

However, for most mining situations, a 6-hour event is more likely to result in a higher peak flow. For a given storm 

frequency, the time of concentration and watershed shape can be more influential in determining the peak flow than the 

storm duration. Therefore, in most cases the differences in any increased volume of peak flows 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 depth or flow velocities and, correspondingly, any alteration in drainage channel design. 

 A qualified registered professional must certify stream channel diversion design, construction, and maintenance of 

diversions and their appurtenant structures as conforming to the performance standards of Part 816 and any design 

criteria set by the regulatory authority. 

 Two commenters endorsed proposed paragraph (f)(1)(ii), which keyed the capacity of the diversion to the capacity of 

the natural stream rather than national design standards. 

 Based on field experience, OSM believes that it is technically sound and environmentally safe to require that the flow 

carrying capacity of a stream channel diversion be equal to that of the undiverted channel. Therefore, OSM has given 
more discretion to the regulatory authority to prescribe requirements suited to local geographical and meteorological 

conditions. 

 One commenter took issue with OSM's reasons as expressed in the preamble to the proposed rule (47 FR 27723) for 

not establishing national standards for diversion capacity. The commenter asserted that a diversion with a larger capacity 

than that of the natural stream channel would prevent some overtopping and would help to prevent sediment 

contributions downstream during non-flood periods. 

 While diversion capacities larger than the natural stream's capacity may prevent some overtopping, nevertheless, size 

alone does not provide any guarantees for meeting these problems. Moreover, the land disturbance associated with 

construction and removal of larger diversions could very well nullify any benefits from their greater capacities. The rules 

fully meet the environmental protection provisions of the Act in a feasible and cost effective manner. 

 Some commenters objected to requiring the supervision of a registered professional engineer over the design, 

construction, and maintenance of diversions. The commenter thought that the requirement did not contribute to 

environmental protection or coal development in any significant manner. Also because little guidance in selecting the 

appropriate design was provided, the requirement would result in delay and costly design changes at the time of permit 

review. 

 Section 102(a) of the Act declares that one of its purposes is "* * * to protect society and the environment from the 

adverse effects of surface coal mining operations." The requirement for the certification of the design and construction of 

stream channel diversions by a registered professional engineer is in accord with section 515(a) of the Act and will help 

achieve this goal. However, OSM agrees that requiring engineer certification of routine maintenance of stream channels 

and designs of diversions of miscellaneous flows may not be necessary. The final rule is thus changed accordingly so that 

the certification requirement applies only to the design and construction of perennial or intermittent streams. 

 

SECTIONS 816.43(c) and 817.43(c) - DIVERSIONS OF MISCELLANEOUS FLOWS. 

 Paragraph (c) provides standards for the diversion of miscellaneous flows. The final rule is based on the language 

appearing in proposed Section 816.41(f)(2). Paragraph (c)(1) clarifies what OSM means by the term "miscellaneous 

flows." 

 The performance standards of paragraph (c)(2), for diversions of miscellaneous flows, are the same as those for 

perennial and intermittent streams with certain exceptions. When reviewing the proposed diversion, the regulatory 

authority need not make the finding concerning stream buffer zones since these are not applicable to miscellaneous flows. 

In addition, the design storm events for temporary and permanent diversions of miscellaneous flows are a 2-year, 6-hour 

precipitation event, and a 10-year, 6-hour precipitation event, respectively, rather than 10- and 100-year events. Further, 

as stated above, there is no requirements for professional engineer certification of the design and construction for 

diversion of miscellaneous flows. 

 One commenter thought that the proposed rule for miscellaneous flow concerning the application of the best 

technology currently available to prevent additional contributions of suspended solids to streamflows outside the permit 

area should be revised to take into account the water quality of the ultimate receiving stream. 

 OSM rejects this suggestion. The requirement is derived from section 515(b)(10) of the Act and the statutory 

language is included verbatim in Section 816.43. 

 One commenter thought that a mine operator should be able to divert any flow if it came from upstream areas that he 

or she had not disturbed. The commenter objected to the requirement to obtain the prior approval of the regulatory 

authority. 

 OSM considers that prior regulatory authority approval of diversions of flow is appropriate because unregulated 

diversions could lead to environmental damage, unsafe conditions, and disruption of the hydrologic balance. This 

approval may be granted as part of the permitting process. 
 Another commenter objected to OSM not providing specific reasons for allowing diversions of overland flows as was 

the case in the previous rule ( Section 816.43). The commenter believed that by allowing diversion of all flows, without 

the limitations listed at that section, the task of the regulatory authority would be more difficult. 

 OSM discussed the reason for allowing diversions of any flow, including those from abandoned or undisturbed areas 

or reclaimed areas, in the preamble to the proposed rules. (47 FR 27723, June 25, 1982). The language of previous 

Sections 816.43 and 816.44 led to confusion as to when diversions would be approved or required and what elements of 

the performance standards applied to miscellaneous flows as opposed to perennial and intermittent flows. The final rule 

adopts the provision that the regulatory authority may require, as well as approve, diversions of miscellaneous flows. 

This authorization was inadvertently left out of the proposed rule. Changes made between the previous and final rules are 

intended to provide additional flexibility in allowing diversion of miscellaneous flows. 

 It is not possible to categorically list all situations where it may be environmentally desirable to divert such flows. For 

instance, it may be necessary to divert miscellaneous flows to prevent infiltration into spoils and protect the stability of 

fills or backfilled areas. The previous rule could have prohibited such diversions. The final rules provide the regulatory 

authority with sufficient authority to address environmental concerns with respect to miscellaneous flows without 

necessitating the listing of limitations as previously was the case. 

 One commenter was concerned that an operator could be released from the requirement to make miscellaneous 

diversions at least as large as the natural stream channel, should design values for handling flood flows of proposed 

paragraph (f)(2)(iii) prove to be smaller. The commenter thought that diversions of miscellaneous flows should have the 

capacity of the stream channel in all cases. Two other commenters suggested adding language regarding the proper sizing 

of channels for temporary and permanent diversion of miscellaneous flows, when no defined stream channel existed. 

Under such conditions, they thought that the rule should provide: "The diversion shall be capable of conveying the flow 

from the design precipitation event." 

 OSM agrees that for intermittent and perennial streams, keying the size of the diversion channel to the natural stream 

channel is appropriate. Such a requirement is included in final paragraph (b)(2). However, for miscellaneous flows, 

natural stream channels are often non-existent or irrelevant to the purposes of the diversion or to the size requirements 

for diversion safety. Safety is provided by specifying the design precipitation event for the combination of the channel, 

bank, and flood plain configuration. The final rule leaves flexibility to the operator and regulatory authority with respect 

to the precise channel size requirements for miscellaneous flow diversions provided the general requirements of 

paragraph (a) are met. 

 

CROSS-REFERENCING 

 In a number of places in the final rule and preamble, OSM has cross-referenced other OSM rules, some of which have 

been proposed for revision and may not yet be finalized. If such rules are not finalized or are revised from those versions 

expected to be issued in the near future, conforming technical amendments may be necessary. 

IV. PROCEDURAL MATTERS 

 

Executive Order 12291 

 The Department of the Interior (DOI) has examined these proposed rules according to the criteria of Executive Order 

12291 (February 17, 1981). OSM has determined that these are not major rules and do not require a regulatory impact 

analysis because they will impose only minor costs on the coal industry, coal consumers, and the public. In addition, the 

proposed rules emphasize the use of performance standards instead of design criteria, which will allow operators to 

utilize the most cost-effective means of achieving the performance standards. 

 

Agency Approval 

 Section 516(a) of the Act requires that, with regard to rules directed toward the surface effects of underground 

mining, OSM must obtain written concurrence from the head of the department which administers the Federal Mine 

Safety and Health Act of 1977. OSM has obtained the written concurrence of the Assistant Secretary for Mine Safety 

and Health, U.S. Department of Labor. 
 Under section 501(a)(B) of the Act the Secretary may not promulgate and publish regulations relating to water quality 

standards promulgated under the authority of the Federal Water Pollution Control Act, as amended 33 U.S.C. 

1151-1175, until he has obtained the written concurrence of the Administrator of the Environmental Protection Agency 

(EPA). The written concurrence has been received with respect to these rules. 

 

Regulatory Flexibility Act 

 The DOI has also determined, pursuant to the Regulatory Flexibility Act, 5 U.S.C. 601 et seq., that these rules will 

not have significant economic impact on a substantial number of small entities. The proposed rules will allow small coal 

operators increased flexibility in meeting performance standards and should especially ease the regulatory burden on 

small coal operators in Appalachia. 

 

Federal Paperwork Reduction Act 

 In accordance with the Federal Paperwork Reduction Act of 1980 (Pub. L. 96-511; 44 U.S.C. 3507), the information 

requirements in Parts 780, 784, 816, and 817 were approved by the Office of Management and Budget (OMB) and 

assigned clearance numbers 1029-0036, 1029-0039, 1029-0047, and 1029-0048, respectively. These approvals were 

codified under new sections in each of those parts that contain information collection requirements. The information 

required in these sections will be used by the regulatory authority to assess the impact of the proposed mining operation 

on the hydrologic balance of the permit and adjacent areas and cumulative impacts in the cumulative impact area. 

Submission of such information is mandatory. 

 

National Environmental Policy Act 

 OSM has analyzed the impacts of these final rules in the "Final Environmental Impact Statement OSM EIS-1: 

Supplement" (FEIS) according to Section 102(2)(C) of the National Environmental Policy Act of 1969 (NEPA) (42 

U.S.C. 4332(2)(C)). The FEIS is available in OSM's Administrative Record in Room 5315, 1100 L Street, NW., 

Washington, D.C., or by mail request to Mark Boster, Chief, Branch of Environmental Analysis, Room 134, Interior 

South Building, U.S. Department of the Interior, Washington, DC 20240. This preamble serves as the record of decision 

under NEPA. The following substantive differences are noted between these final rules and the preferred alternative set 

forth in Volume III of the FEIS. Unless otherwise indicated the changes or additions have resulted in a rule that is the 

same as or more environmentally protective than the FEIS preferred alternative. 

 1. The final definition for "cumulative impact area," appearing at Section 701.5, differs from the preferred alternative 

primarily in its listing of activities that, at a minimum, constitute "anticipated mining." The list is more extensive than the 

preferred alternative. 

 2. Final Sections 780.21(a) and 784.14(a) deal only with sampling and analysis techniques. References to use of the 

data to be collected have been moved to later paragraphs. 

 3. Final Sections 780.21(b) and 784.14(b) require more baseline information for surface- and ground-water resources 

than the preferred alternative. 

 4. Final Sections 780.21(f) and 784.14(e) specifically list required minimum findings and note that applications for a 

revision will be reviewed by the regulatory authority to decide whether a new or updated PHC determination will be 

required. 

 5. Final Sections 780.21(g) and 784.14(f) note that an application for a permit revision will be reviewed by the 

regulatory authority to decide whether a new or updated CHIA will be required. 

 6. Final Sections 780.21(h) and 784.14(g) have more extensive requirements for the reclamation plan to protect the 

hydrologic balance than the preferred alternative. 

 7. Final Sections 780.21(i) and 784.14(h) narrow the scope of the possible exemption to the monitoring of ground 

water which would have been available under the preferred alternative. 

 8. Final Sections 780.22(a) and 784.22(a) provide a more extensive and clearer list of the uses for which the geologic 

data is to be collected than the preferred alternative. 
 9. Final Sections 780.22(b) and 784.22(b) require the collection, analysis and description of more geologic 

information and more clearly state the depth of the data collection than the preferred alternative. 

 10. Final Sections 780.22(c) and 784.22(c) specify the bases for the regulatory authority to require the collection, 

analysis and description of geologic information in addition to that required by paragraph (b). While the language of the 

preferred alternative was more open-ended, the bases listed in the final rules cover the principal environmental concerns 

for which the additional data would be needed. 

 11. Final Sections 816.41(a) and 817.41(a) are broader in their statement of how surface mining activities are to be 

conducted to protect the hydrologic balance. 

 12. Final Sections 816.41(b)(2) and 817.41(b)(2) require the handling of earth materials and runoff in a manner to 

restore the approximate premining recharge capacity rather than premining water availability. This was part of the no 

action/minimum action alternative in the FEIS. 

 13. Final Sections 816.41 (c) and (e) and 817.41 (c) and (e) specify what the operator must do if ground-water 

monitoring indicates noncompliance with permit conditions. Modifications of monitoring requirements shall be treated 

like permit revisions. The demonstration which an operator must make to obtain a modification in the monitoring 

requirements has been slightly broadened from that in the FEIS. 

 14. Final Sections 816.41(d) and 817.41(d) have increased the surface-water protection efforts an operator shall take 

when conducting surface mining activities. 

 15. Final Sections 816.41(g) and 817.41(g) require that a permittee shall remain responsible for the proper 

management of wells until bond release even though the ownership of the well has been transferred to another party. 

 16. Final Section 816.41(h) does not specify, as does the preferred alternative, that the water being replaced shall be 

of equal or better quality and quantity than the pre-affected supply. Instead, the final rule requires replacement of the 

water supply adversely affected by the surface mining activity. This is equally as environmentally protective as the 

preferred alternative because, as described earlier in this preamble, the concept of replacement includes restoration of 

both quality and quantity. 

 17. Final Sections 816.41(i) and 817.41(h) add that discharges into an underground mine must prevent material 

damage outside the permit area. 

 18. Final Sections 816.43 and 817.43 add that diversions must be designed to prevent material damage to the 

hydrologic balance. Diversions of miscellaneous flows need not be designed, constructed or maintained under the 

direction of a registered professional engineer. This is consistent with Alternative B in the FEIS. 

 

LIST OF SUBJECTS 

 

30 CFR Part 701 

 Coal mining, Law enforcement, Surface mining, Underground mining. 

 

30 CFR Parts 779 and 816 

 Coal mining, Environmental protection, Reporting and recordkeeping requirements, Surface mining. 

 

30 CFR Part 780 

 Coal mining, Incorporation by reference, Reporting and recordkeeping requirements, Surface mining. 

 

30 CFR Parts 783 and 817 

 Coal mining, Environmental protection, Reporting and recordkeeping requirements, Underground mining. 

 

30 CFR Part 784 

 Coal mining, Incorporation by reference, Reporting and recordkeeping requirements, Underground mining. 
 Accordingly, 30 CFR Parts 701, 779, 780, 783, 784, 816, and 817 are amended as set forth herein. 

Dated: September 15, 1983. 

Joy R. Gwaltney, Acting Deputy Assistant Secretary, Energy and Minerals. 

PART 701 -- PERMANENT REGULATORY PROGRAM 

 1. Section 701.5 is amended by adding the following definitions in alphabetical order: 

SECTION 701.5 - DEFINITIONS. 

 

* * * * * 

CUMULATIVE IMPACT AREA means the area, including the permit area, within which impacts resulting from the 

proposed operation may interact with the impacts of all anticipated mining on surface- and ground-water systems. 

Anticipated mining shall include, at a minimum, the entire projected lives through bond release of: (a) The proposed 

operation, (b) all existing operations, (c) any operation for which a permit application has been submitted to the 

regulatory authority, and (d) all operations required to meet diligent development requirements for leased Federal coal 

for which there is actual mine development information available. 

 

* * * * * 

GRAVITY DISCHARGE means, with respect to underground mining activities, mine drainage that flows freely in an 

open channel downgradient. Mine drainage that occurs as a result of flooding a mine to the level of the discharge is not 

gravity discharge. 

 

* * * * * 

PART 779 -- SURFACE MINING PERMIT APPLICATIONS -- MINIMUM REQUIREMENTS FOR 

INFORMATION ON ENVIRONMENTAL RESOURCES 

SECTIONS 779.13, 779.14, 779.15, 779.16 and 779.17 [Removed] 

 2. Sections 779.13, 779.14, 779.15, 779.16 and 779.17 are removed. 

PART 780 -- SURFACE MINING PERMIT APPLICATIONS -- MINIMUM REQUIREMENTS FOR 

RECLAMATION AND OPERATION PLAN 

 3. Section 780.21 is revised to read as follows: 

SECTION 780.21 - HYDROLOGIC INFORMATION. 

(a) Sampling and analysis methodology. All water-quality analyses performed to meet the requirements of this section 

shall be conducted according to the methodology in the 15th edition of "Standard Methods for the Examination of Water 

and Wastewater," which is incorporated by reference, or the methodology in 40 CFR Parts 136 and 434. Water quality 

sampling performed to meet the requirements of this section shall be conducted according to either methodology listed 

above when feasible. "Standard Methods for the Examination of Water and Wastewater," is a joint publication of the 

American Public Health Association, the American Water Works Association, and the Water Pollution Control 

Federation and is available from the American Public Health Association, 1015 15th Street, NW., Washington, DC 

20036. This document is also available for inspection at the Office of the Federal Register Information Center, Room 

8301, 1100 L Street, NW., Washington, D.C.; at the Office of the OSM Administrative Record, U.S. Department of the 

Interior, Room 5315, 1100 L Street, NW., Washington, D.C.; at the OSM Eastern Technical Service Center, U.S. 
Department of the Interior, Building 10, Parkway Center, Pittsburgh, Pa.; and at the OSM Western Technical Service 

Center, U.S. Department of the Interior, Brooks Tower, 1020 15th Street, Denver, Colo. This incorporation by reference 

was approved by the Director of the Federal Register on October 26, 1983. This document is incorporated as it exists on 

the date of the approval, and a notice of any change in it will be published in the Federal Register. 

(b) Baseline information. The application shall include the following baseline hydrologic information, and any additional 

information required by the regulatory authority. 

(1) Ground-water information. The location and ownership for the permit and adjacent areas of existing wells, 

springs, and other ground-water resources, seasonal quality and quantity of ground water, and usage. Water quality 

descriptions shall include, at a minimum, total dissolved solids or specific conductance corrected to 25 deg.C, pH, total 

iron, and total manganese. Ground-water quantity descriptions shall include, at a minimum, approximate rates of 

discharge or usage and depth to the water in the coal seam, and each water-bearing stratum above and potentially 

impacted stratum below the coal seam. 

(2) Surface-water information. The name, location, ownership, and description of all surface-water bodies such 

as streams, lakes, and impoundments, the location of any discharge into any surface-water body in the proposed permit 

and adjacent areas, and information on surface-water quality and quantity sufficient to demonstrate seasonal variation and 

water usage. Water quality descriptions shall include, at a minimum, baseline information on total suspended solids, total 

dissolved solids or specific conductance corrected to 25 deg.C, pH, total iron, and total manganese. Baseline acidity and 

alkalinity information shall be provided if there is a potential for acid drainage from the proposed mining operation. 

Water quantity descriptions shall include, at a minimum, baseline information on seasonal flow rates. 

(3) Supplemental information. If the determination of the probable hydrologic consequences (PHC) required 

by paragraph (f) of this section indicates that adverse impacts on or off the proposed permit area may occur to the 

hydrologic balance, or that acid-forming or toxic-forming material is present that may result in the contamination of 

ground-water or surface-water supplies, then information supplemental to that required under paragraphs (b)(1) and 

(b)(2) of this section shall be provided to evaluate such probable hydrologic consequences and to plan remedial and 

reclamation activities. Such supplemental information may be based upon drilling, aquifer tests, hydrogeologic analysis of 

the water-bearing strata, flood flows, or analysis of other water quality or quantity characteristics. 

(c) Baseline cumulative impact area information. 

(1) Hydrologic and geologic information for the cumulative impact area necessary to assess the probable 

cumulative hydrologic impacts of the proposed operation and all anticipated mining on surface- and ground-water 

systems as required by paragraph (g) of this section shall be provided to the regulatory authority if available from 

appropriate Federal or State agencies. 

(2) If the information is not available from such agencies, then the applicant may gather and submit this 

information to the regulatory authority as part of the permit application. 

(3) The permit shall not be approved until the necessary hydrologic and geologic information is available to the 

regulatory authority. 

(d) Modeling. The use of modeling techniques, interpolation or statistical techniques may be included as part of the 

permit application, but actual surface- and ground-water information may be required by the regulatory authority for each 

site even when such techniques are used. 

(e) Alternative water source information. If the PHC determination required by paragraph (f) of this section indicates 

that the proposed mining operation may proximately result in contamination, diminution, or interruption of an 

underground or surface source of water within the proposed permit or adjacent areas which is used for domestic, 

agricultural, industrial or other legitimate purpose, then the application shall contain information on water availability and 

alternative water sources, including the suitability of alternative water sources for existing premining uses and approved 

postmining land uses. 

(f) Probable hydrologic consequences determination. 

(1) The application shall contain a determination of the probable hydrologic consequences (PHC) of the 

proposed operation upon the quality and quantity of surface and ground water under seasonal flow conditions for the 

proposed permit and adjacent areas. 

(2) The PHC determination shall be based on baseline hydrologic, geologic and other information collected for 

the permit application and may include data statistically representative of the site; 
(3) The PHC determination shall include findings on: 

(i) Whether adverse impacts may occur to the hydrologic balance; 

(ii) Whether acid-forming or toxic-forming materials are present that could result in the contamination 

of surface or ground-water supplies; 

(iii) Whether the proposed operation may proximately result in contamination, diminution or 

interruption of an underground or surface source of water within the proposed permit or adjacent areas which is used for 

domestic, agricultural, industrial, or other legitimate purpose; and 

(iv) What impact the proposed operation will have on: 

(A) Sediment yield from the disturbed area 

(B) acidity, total suspended and dissolved solids, and other important water quality 

parameters of local impact; 

(C) flooding or streamflow alteration; 

(D) ground-water and surface-water availability and, 

(E) other characteristics as required by the regulatory authority. 

(4) An application for a permit revision shall be reviewed by the regulatory authority to determine whether a 

new or updated PHC determination shall be required. 

(g) Cumulative hydrologic impact assessment. 

(1) The regulatory authority shall provide an assessment of the probable cumulative hydrologic impacts (CHIA) 

of the proposed operation and all anticipated mining upon surface- and ground-water systems in the cumulative impact 

area. The CHIA shall be sufficient to determine, for purposes of permit approval, whether the proposed operation has 

been designed to prevent material damage to the hydrologic balance outside the permit area. The regulatory authority 

may allow the applicant to submit data and analyses relevant to the CHIA with the permit application. 

(2) An application for a permit revision shall be reviewed by the regulatory authority to determine whether a

new or updated CHIA shall be required. 

(h) Hydrologic reclamation plan. The application shall include a plan, with maps and descriptions, indicating how the 

relevant requirements of Part 816, including Sections 816.41 to 816.43, will be met. The plan shall be specific to the local 

hydrologic conditions. It shall contain the steps to be taken during mining and reclamation through bond release to 

minimize disturbances to the hydrologic balance within the permit and adjacent areas; to prevent material damage outside 

the permit area; to meet applicable Federal and State water quality laws and regulations; and to protect the rights of 

present water users. The plan shall include the measures to be taken to: Avoid acid or toxic drainage; prevent, to the 

extent possible using the best technology currently available, additional contributions of suspended solids to streamflow; 

provide water-treatment facilities when needed; control drainage; restore approximate premining recharge capacity and 

protect or replace rights of present water users. The plan shall specifically address and potential adverse hydrologic 

consequences identified in the PHC determination prepared under paragraph (f) of this section and shall include 

preventive and remedial measures. 

(i) Ground-water monitoring plan. 

(1) The application shall include a ground-water monitoring plan based upon the PHC determination required 

under paragraph (f) of this section and the analysis of all baseline hydrologic, geologic and other information in the 

permit application. The plan shall provide for the monitoring of parameters that relate to the suitability of the ground 

water for current and approved postmining land uses and to the objectives for protection of the hydrologic balance set 

forth in paragraph (h) of this section. It shall identify the quantity and quality parameters to be monitored, sampling 

frequency, and site locations. It shall describe how the data may be used to determine the impacts of the operation upon 

the hydrologic balance. At a minimum, total dissolved solids or specific conductance corrected to 25 deg.C, pH, total 

iron, total manganese, and water levels shall be monitored and data submitted to the regulatory authority at least every 3 

months for each monitoring location. The regulatory authority may require additional monitoring. 

(2) If an applicant can demonstrate by the use of the PHC determination and other available information that a 

particular water-bearing stratum in the proposed permit and adjacent areas is not one which serves as an aquifer which 

significantly ensures the hydrologic balance within the cumulative impact area, then monitoring of that stratum may be 

waived by the regulatory authority. 

(j) Surface-water monitoring plan. 

(1) The application shall include a surface-water monitoring plan based upon the PHC determination required 

under paragraph (f) of this section and the analysis of all baseline hydrologic, geologic, and other information in the 
permit application. The plan shall provide for the monitoring of parameters that relate to the suitability of the surface 

water for current and approved postmined land uses and to the objectives for protection of the hydrologic balance as set 

forth in paragraph (h) of this section as well as the effluent limitations found at 40 CFR Part 434. 

(2) The plan shall identify the surface-water quantity and quality parameters to be monitored, sampling 

frequency and site locations. It shall describe how the data may be used to determine the impacts of the operation upon 

the hydrologic balance. 

(i) At all monitoring locations in the surface-water bodies such as streams, lakes, and impoundments, 

that are potentially impacted or into which water will be discharged and at upstream monitoring locations the total 

dissolved solids or specific conductance corrected to 25 deg.C, total suspended solids, pH, total iron, total manganese, 

and flow shall be monitored. 

(ii) For point-source discharges, monitoring shall be conducted in accordance with 40 CFR Parts 122, 

123 and 434 and as required by the National Pollutant Discharge Elimination System permitting authority. 

(3) The monitoring reports shall be submitted to the regulatory authority every 3 months. The regulatory 

authority may require additional monitoring. 

 4. Section 780.22 is added to read as follow: 

SECTION 780.22 - GEOLOGIC INFORMATION. 

(a) General. Each application shall include geologic information in sufficient detail to assist in determining -- 

(1) The probable hydrologic consequences of the operation upon the quality and quantity of surface and ground 

water in the permit and adjacent areas, including the extent to which surface- and ground-water monitoring is necessary; 

(2) All potentially acid- or toxic-forming strata down to and including the stratum immediately below the lowest 

coal seam to be mined; and 

(3) Whether reclamation as required by this chapter can be accomplished and whether the proposed operation 

has been designed to prevent material damage to the hydrologic balance outside the permit area. 

(b) Geologic information shall include, at a minimum the following: 

(1) A description of the geology of the proposed permit and adjacent areas down to and including the deeper of 

either the stratum immediately below the lowest coal seam to be mined or any aquifer below the lowest coal seam to be 

mined which may be adversely impacted by mining. The description shall include the areal and structural geology of the 

permit and adjacent areas, and other parameters which influence the required reclamation and the occurrence, availability, 

movement, quantity, and quality of potentially impacted surface and ground waters. It shall be based on – 

(i) The cross sections, maps and plans required by Section 779.25 of this chapter; 

(ii) The information obtained under paragraphs (b)(2) and (c) of this section; and 

(iii) Geologic literature and practices. 

(2) Analyses of samples collected from test borings; drill cores; or fresh, unweathered, uncontaminated samples 

from rock outcrops from the permit area, down to and including the deeper of either the stratum immediately below the 

lowest coal seam to be mined or any aquifer below the lowest seam to be mined which may be adversely impacted by 

mining. The analyses shall result in the following: 

(i) Logs showing the lithologic characteristics including physical properties and thickness of each 

stratum and location of ground water where occurring; 

(ii) Chemical analyses identifying those strata that may contain acid- or toxic-forming or 

alkalinity-producing materials and to determine their content except that the regulatory authority may find that the 

analysis for alkalinity-producing materials is unnecessary; and 

(iii) Chemical analyses of the coal seam for acid- or toxic-forming materials, including the total sulfur 

and pyritic sulfur, except that the regulatory authority may find that the analysis of pyritic sulfur content is unnecessary. 

(c) If determined to be necessary to protect the hydrologic balance or to meet the performance standards of this chapter, 

the regulatory authority may require the collection, analysis, and description of geologic information in addition to that 

required by paragraph (b) of this section. 

(d) An applicant may request the regulatory authority to waive in whole or in part the requirements of paragraph (b)(2) 

of this section. The waiver may be granted only if the regulatory authority finds in writing that the collection and analysis
of such data is unnecessary because other equivalent information is available to the regulatory authority in a satisfactory 

form. 

SECTION 780.29 [Amended] 

 5. Section 780.29 is amended by replacing the reference "30 CFR 816.43-816.44" with the reference " Section 816.43 

of this chapter." 

PART 783 -- UNDERGROUND MINING PERMIT APPLICATIONS -- MINIMUM REQUIREMENTS FOR 

INFORMATION ON ENVIRONMENTAL RESOURCES 

Sections 783.13, 783.14, 783.15, 783.16 and 783.17 [Removed] 

 6. Sections 783.13, 783.14, 783.15, 783.16 and 783.17 are removed. 

PART 784 -- UNDERGROUND MINING PERMIT APPLICATIONS -- MINIMUM REQUIREMENTS FOR 

RECLAMATION AND OPERATION PLAN 

 7. Section 784.14 is revised to read as follows: 

SECTION 784.14 - HYDROLOGIC INFORMATION. 

(a) Sampling and analysis. All water quality analyses performed to meet the requirements of this section shall be 

conducted according to the methodology in the 15th edition of "Standard Methods for the Examination of Water and 

Wastewater," which is incorporated by reference, or the methodology in 40 CFR Parts 136 and 434. Water quality 

sampling performed to meet the requirements of this section shall be conducted according to either methodology listed 

above when feasible. "Standard Methods for the Examination of Water and Wastewater," is a joint publication of the 

American Public Health Association, the American Water Works Association, and the Water Pollution Control 

Federation and is available from the American Public Health Association, 1015 Fifteenth Street, NW., Washington, DC 

20036. This document is also available for inspection at the Office of the Federal Register Information Center, Room 

8301, 1100 L Street, NW., Washington, D.C.; at the Office of the OSM Administrative Record, U.S. Department of the 

Interior, Room 5315, 1100 L Street, NW., Washington, D.C.; at the OSM Eastern Technical Service Center, U.S. 

Department of the Interior, Building 10, Parkway Center, Pittsburgh, Pa.; and at the OSM Western Technical Service 

Center, U.S. Department of the Interior, Brooks Tower, 1020 15th Street, Denver, Colo. This incorporation by reference 

was approved by the Director of the Federal Register on October 26, 1983. This document is incorporated as it exists on 

the date of the approval, and a notice of any change in it will be published in the Federal Register. 

(b) Baseline information. The application shall include the following baseline hydrologic information, and any additional 

information required by the regulatory authority. 

(1) Ground-Water information. The location and ownership for the permit and adjacent areas of existing wells, 

springs, and other ground-water resources, seasonal quality and quantity of ground water, and usage. Water quality 

descriptions shall include, at a minimum, total dissolved solids or specific conductance corrected to 25 deg.C, pH, total 

iron, and total manganese. Ground-water quantity descriptions shall include, at a minimum, approximate rates of 

discharge or usage and depth to the water in the coal seam, and each water-bearing stratum above and potentially 

impacted stratum below the coal seam. 

(2) Surface-water information. The name, location, ownership and description of all surface-water bodies such 

as streams, lakes, and impoundments, the location of any discharge into any surface-water body in the proposed permit 

and adjacent areas, and information on surface-water quality and quantity sufficient to demonstrate seasonal variation and 

water usage. Water quality descriptions shall include, at a minimum, baseline information on total suspended solids, total 

dissolved solids or specific conductance corrected to 25 deg.C, pH, total iron, and total manganese. Baseline acidity and 

alkalinity information shall be provided if there is a potential for acid drainage from the proposed mining operation. 

Water quantity descriptions shall include, at a minimum, baseline information on seasonal flow rates. 
(3) Supplemental information. If the determination of the probable hydrologic consequences (PHC) required by 

paragraph (e) of this section indicates that adverse impacts on or off the proposed permit area may occur to the 

hydrologic balance, or that acid-forming or toxic-forming material is present that may result in the contamination of 

ground-water or surface-water supplies, then information supplemental to that required under paragraphs (b)(1) and 

(b)(2) of this section shall be provided to evaluate such probable hydrologic consequences and to plan remedial and 

reclamation activities. Such supplemental information may be based upon drilling, aquifer tests, hydrogeologic analysis of 

the water-bearing strata, flood flows, or analysis of other water quality or quantity characteristics. 

(c) Baseline cumulative impact area information. 

(1) Hydrologic and geologic information for the cumulative impact area necessary to assess the probable 

cumulative hydrologic impacts of the proposed operation and all anticipated mining on surface- and ground-water 

systems as required by paragraph (f) of this section shall be provided to the regulatory authority if available from 

appropriate Federal or State agencies. 

(2) If this information is not available from such agencies, then the applicant may gather and submit this 

information to the regulatory authority as part of the permit application. 

(3) The permit shall not be approved until the necessary hydrologic and geologic information is available to the 

regulatory authority. 

(d) Modeling. The use of modeling techniques, interpolation or statistical techniques may be included as part of the 

permit application, but actual surface- and ground-water information may be required by the regulatory authority for each 

site even when such techniques are used. 

(e) Probable hydrologic consequences determination. 

(1) The application shall contain a determination of the probable hydrologic consequences (PHC) of the 

proposed operation upon the quality and quantity of surface and ground water under seasonal flow conditions for the 

proposed permit and adjacent areas. 

(2) The PHC determination shall be based on baseline hydrologic, geologic and other information collected for 

the permit application and may include data statistically representative of the site. 

(3) The PHC determination shall include findings on: 

(i) Whether adverse impacts may occur to the hydrologic balance; 

(ii) Whether acid-forming or toxic-forming materials are present that could result in the contamination 

of surface- or ground-water supplies; and 

(iii) What impact the proposed operation will have on: 

(A) Sediment yield from the disturbed area; 

(B) acidity, total suspended and dissolved solids, and other important water quality 

parameters of local impact; 

(C) flooding or streamflow alteration; 

(D) ground-water and surface-water availability; and, 

(E) other characteristics as required by the regulatory authority. 

(4) An application for a permit revision shall be reviewed by the regulatory authority to determine whether a 

new or updated PHC determination shall be required. 

(f) Cumulative hydrologic impact assessment. 

(1) The regulatory authority shall provide an assessment of the probable cumulative hydrologic impacts (CHIA) 

of the proposed operation and all anticipated mining upon surface- and ground-water systems in the cumulative impact 

area. The CHIA shall be sufficient to determine, for purposes of permit approval, whether the proposed operation has 

been designed to prevent material damage to the hydrologic balance outside the permit area. The regulatory authority 

may allow the applicant to submit data and analyses relevant to the CHIA with the permit application. 

(2) An application for a permit revision shall be reviewed by the regulatory authority to determine whether a 

new or updated CHIA shall be required. 

(g) Hydrologic reclamation plan. The application shall include a plan, with maps and descriptions, indicating how the 

relevant requirements of Part 817, including Sections 817.41 to 817.43, will be met. The plan shall be specific to the local 

hydrologic conditions. It shall contain the steps to be taken during mining and reclamation through bond release to 

minimize disturbance to the hydrologic balance within the permit and adjacent areas; to prevent material damage outside 
the permit area; and to meet applicable Federal and State water quality laws and regulations. The plan shall include the 

measures to be taken to: avoid acid or toxic drainage; prevent to the extent possible using the best technology currently 

available, additional contributions of suspended solids to streamflow; provide water-treatment facilities when needed; 

control drainage; and restore approximate premining recharge capacity. The plan shall specifically address any potential 

adverse hydrologic consequences identified in the PHC determination prepared under paragraph (e) of this section and 

shall include preventive and remedial measures. 

(h) Ground-water monitoring plan. 

(1) The application shall include a ground-water monitoring plan based upon the PHC determination required 

under paragraph (e) of this section and the analysis of all baseline hydrologic, geologic and other information in the 

permit application. The plan shall provide for the monitoring of parameters that relate to the suitability of the ground 

water for current and approved postmining land uses and to the objectives for protection of the hydrologic balance set 

forth in paragraph (g) of this section. It shall identify the quantity and quality parameters to be monitored, sampling 

frequency and site locations. It shall describe how the data may be used to determine the impacts of the operation upon 

the hydrologic balance. At a minimum, total dissolved solids or specific conductance corrected to 25 deg.C, pH, total 

iron, total manganese, and water levels shall be monitored and data submitted to the regulatory authority at least every 3 

months for each monitoring location. The regulatory authority may require additional monitoring. 

(2) If an applicant can demonstrate by the use of the PHC determination and other available information that a 

particular water-bearing stratum in the proposed permit and adjacent areas is not one which serves as an aquifer which 

significantly ensures the hydrologic balance within the cumulative impact area, then monitoring of that stratum may be 

waived by the regulatory authority. 

(i) Surface-water monitoring plan. 

(1) The application shall include a surface-water monitoring plan based upon the PHC determination required 

under paragraph (e) of this section and the analysis of all baseline hydrologic, geologic and other information in the 

permit application. The plan shall provide for the monitoring of parameters that relate to the suitability of the surface 

water for current and approved postmining land uses and to the objectives for protection of the hydrologic balance as set 

forth in paragraph (g) of this section as well as the effluent limitations found at 40 CFR Part 434. 

(2) The plan shall identify the surface-water quantity and quality parameters to be monitored, sampling 

frequency and site locations. It shall describe how the data may be used to determine the impacts of the operation upon 

the hydrologic balance. 

(i) At all monitoring locations in streams, lakes, and impoundments, that are potentially impacted or 

into which water will be discharged and at upstream monitoring locations, the total dissolved solids or specific 

conductance corrected at 25 deg.C, total suspended solids, pH, total iron, total manganese, and flow shall be monitored. 

(ii) For point-source discharges, monitoring shall be conducted in accordance with 40 CFR Parts 122, 

123 and 434 and as required by the National Pollutant Discharge Elimination System permitting authority. 

(3) The monitoring reports shall be submitted to the regulatory authority every 3 months. The regulatory 

authority may require additional monitoring. 

SECTION 784.22 [Redesignated as Section 784.29 and amended]. 

 8. Section 784.22 is redesignated as Section 784.29 and amended by replacing the reference " Sections

817.43-817.44" with the reference " Section 817.43 of this chapter." 

 9. A new Section 784.22 is added to read as follows: 

SECTION 784.22 - GEOLOGIC INFORMATION. 

(a) General. Each application shall include geologic information in sufficient detail to assist in -- 

(1) Determining the probable hydrologic consequences of the operation upon the quality and quantity of surface 

and ground water in the permit and adjacent areas, including the extent to which surface- and ground-water monitoring is 

necessary; 

(2) Determining all potentially acid- or toxic-forming strata down to and including the stratum immediately 

below the coal seam to be mined; 
(3) Determining whether reclamation as required by this chapter can be accomplished and whether the proposed 

operation has been designed to prevent material damage to the hydrologic balance outside the permit area; and 

(4) Preparing the subsidence control plan under Section 784.20. 

(b) Geologic information shall include, at a minimum, the following: 

(1) A description of the geology of the proposed permit and adjacent areas down to and including the deeper of 

either the stratum immediately below the lowest coal seam to be mined or any aquifer below the lowest coal seam to be 

mined which may be adversely impacted by mining. This description shall include the areal and structural geology of the 

permit and adjacent areas, and other parameters which influence the required reclamation and it shall also show how the 

areal and structural geology may affect the occurrence, availability, movement, quantity and quality of potentially 

impacted surface and ground water. It shall be based on -- 

(i) The cross sections, maps, and plans required by Section 783.25 of this chapter; 

(ii) The information obtained under paragraphs (b)(2), (b)(3), and (c) of this section; and 

(iii) Geologic literature and practices. 

(2) For any portion of a permit area in which the strata down to the coal seam to be mined will be removed or 

are already exposed, samples shall be collected and analyzed from test borings; drill cores; or fresh, unweathered, 

uncontaminated samples from rock outcrops down to and including the deeper of either the stratum immediately below 

the lowest coal seam to be mined or any aquifer below the lowest coal seam to be mined which may be adversely 

impacted by mining. The analyses shall result in the following: 

(i) Logs showing the lithologic characteristics including physical properties and thickness of each 

stratum and location of ground water where occurring; 

(ii) Chemical analyses identifying those strata that may contain acid- or toxic-forming, or 

alkalinity-producing materials and to determine their content except that the regulatory authority may find that the 

analysis for alkalinity-producing material is unnecessary; and 

(iii) Chemical analysis of the coal seam for acid- or toxic-forming materials, including the total sulfur 

and pyritic sulfur, except that the regulatory authority may find that the analysis of pyritic sulfur content is unnecessary. 

(3) For lands within the permit and adjacent areas where the strata above the coal seam to be mined will not be 

removed, samples shall be collected and analyzed from test borings or drill cores to provide the following data: 

(i) Logs of drill holes showing the lithologic characteristics, including physical properties and thickness 

of each stratum that may be impacted, and location of ground water where occurring; 

(ii) Chemical analyses for acid- or toxic-forming or alkalinity-producing materials and their content in 

the strata immediately above and below the coal seam to be mined; 

(iii) Chemical analyses of the coal seam for acid- or toxic-forming materials, including the total sulfur 

and pyritic sulfur, except that the regulatory authority may find that the analysis of pyrite sulfur content is unnecessary; 

and 

(iv) For standard room and pillar mining operations, the thickness and engineering properties of clays 

or soft rock such as clay shale, if any, in the stratum immediately above and below each coal seam to be mined. 

(c) If determined to be necessary to protect the hydrologic balance, to minimize or prevent subsidence, or to meet the 

performance standards of this chapter, the regulatory authority may require the collection, analysis and description of 

geologic information in addition to that required by paragraph (b) of this section. 

(d) An applicant may request the regulatory authority to waive in whole or in part the requirements of paragraphs (b)(2) 

and (b)(3) of this section. The waiver may be granted only if the regulatory authority finds in writing that the collection 

and analysis of such data is unnecessary because other information having equal value or effect is available to the 

regulatory authority in a satisfactory form. 

PART 816 -- PERMANENT PROGRAM PERFORMANCE STANDARDS -- SURFACE MINING 

ACTIVITIES 

SECTIONS 816.13 and 816.15 [Amended] 

 10. Sections 816.13 and 816.15 are amended by replacing the reference " Section 816.53" in each section with the 

reference " Section 816.41." 
 11. Section 816.41 is revised to read as follows: 

SECTION 816.41 - HYDROLOGIC-BALANCE PROTECTION. 

(a) General. All surface mining and reclamation activities shall be conducted to minimize disturbance of the hydrologic 

balance within the permit and adjacent areas, to prevent material damage to the hydrologic balance outside the permit 

area, to assure the protection or replacement of water rights, and to support approved postmining land uses in 

accordance with the terms and conditions of the approved permit and the performance standards of this part. The 

regulatory authority may require additional preventative, remedial, or monitoring measures to assure that material 

damage to the hydrologic balance outside the permit area is prevented. Mining and reclamation practices that minimize 

water pollution and changes in flow shall be used in preference to water treatment. 

(b) Ground-water protection. In order to protect the hydrologic balance, surface mining activities shall be conducted 

according to the plan approved under Section 780.21(h) of this chapter and the following: 

(1) Ground-water quality shall be protected by handling earth materials and runoff in a manner that minimizes 

acidic, toxic, or other harmful infiltration to ground-water systems and by managing excavations and other disturbances 

to prevent or control the discharge of pollutants into the ground water. 

(2) Ground-water quantity shall be protected by handling earth materials and runoff in a manner that will restore 

the approximate premining recharge capacity of the reclaimed area as a whole, excluding coal mine waste disposal areas 

and fills, so as to allow the movement of water to the ground-water system. 

(c) Ground-water monitoring. 

(1) Ground-water monitoring shall be conducted according to the ground-water monitoring plan approved 

under Section 780.21(i) of this chapter. The regulatory authority may require additional monitoring when necessary. 

(2) Ground-water monitoring data shall be submitted every 3 months to the regulatory authority or more 

frequently as prescribed by the regulatory authority. Monitoring reports shall include analytical results from each sample 

taken during the reporting period. When the analysis of any ground-water sample indicates noncompliance with the 

permit conditions, then the operator shall promptly notify the regulatory authority and immediately take the actions 

provided for in Sections 773.17(e) and 780.21(h) of this chapter. 

(3) Ground-water monitoring shall proceed through mining and continue during reclamation until bond release. 

Consistent with the procedures of Section 774.13 of this chapter, the regulatory authority may modify the monitoring 

requirements, including the parameters covered and the sampling frequency, if the operator demonstrates, using the 

monitoring data obtained under this paragraph, that -- 

(i) The operation has minimized disturbance to the hydrologic balance in the permit and adjacent areas 

and prevented material damage to the hydrologic balance outside the permit area; water quantity and quality are suitable 

to support approved postmining land uses; and the water rights of other users have been protected or replaced; or 

(ii) Monitoring is no longer necessary to achieve the purposes set forth in the monitoring plan 

approved under Section 780.21(i) of this chapter. 

(4) Equipment, structures, and other devices used in conjunction with monitoring the quality and quantity of 

ground water onsite and offsite shall be properly installed, maintained, and operated and shall be removed by the operator 

when no longer needed. 

(d) Surface-water protection. In order to protect the hydrologic balance, surface mining activities shall be conducted 

according to the plan approved under Section 780.21(h) of this chapter, and the following: 

(1) Surface-water quality shall be protected by handling earth materials, ground-water discharges, and runoff in 

a manner that minimizes the formation of acidic or toxic drainage; prevents, to the extent possible using the best 

technology currently available, additional contribution of suspended solids to streamflow outside the permit area; and 

otherwise prevents water pollution. If drainage control, restabilization and revegetation of disturbed areas, diversion of 

runoff, mulching, or other reclamation and remedial practices are not adequate to meet the requirements of this section 

and Section 816.42, the operator shall use and maintain the necessary water-treatment facilities or water quality controls. 

(2) Surface-water quality and flow rates shall be protected by handling earth materials and runoff in accordance 

with the steps outlined in the plan approved under Section 780.21(h) of this chapter. 
(e) Surface-water monitoring. 

(1) Surface-water monitoring shall be conducted according to the surface-water monitoring plan approved 

under Section 780.21(j) of this chapter. The regulatory authority may require additional monitoring when necessary. 

(2) Surface-water monitoring data shall be submitted every 3 months to the regulatory authority or more 

frequently as prescribed by the regulatory authority. Monitoring reports shall include analytical results from each sample 

taken during the reporting period. When the analysis of any surface-water sample indicates noncompliance with the 

permit conditions, the operator shall promptly notify the regulatory authority and immediately take the actions provided 

for in Sections 773.17(e) and 780.21(h) of this chapter. The reporting requirements of this paragraph do not exempt the 

operator from meeting any National Pollutant Discharge Elimination System (NPDES) reporting requirements. 

(3) Surface-water monitoring shall proceed through mining and continue during reclamation until bond release. 

Consistent with Section 774.13 of this chapter, the regulatory authority may modify the monitoring requirements, except 

those required by the NPDES permitting authority, including the parameters covered and sampling frequency if the 

operator demonstrates, using the monitoring data obtained under this paragraph, that -- 

(i) The operation has minimized disturbance to the hydrologic balance in the permit and adjacent areas 

and prevented material damage to the hydrologic balance outside the permit area; water quantity and quality are suitable 

to support approved postmining land uses; and the water rights of other users have been protected or replaced; or 

(ii) Monitoring is no longer necessary to achieve the purposes set forth in the monitoring plan 

approved under Section 780.21(j) of this chapter. 

(4) Equipment, structures, and other devices used in conjunction with monitoring the quality and quantity of 

surface water onsite and offsite shall be properly installed, maintained, and operated and shall be removed by the operator 

when no longer needed. 

(f) Acid- and toxic-forming materials. 

(1) Drainage from acid- and toxic-forming materials into surface water and ground water shall be avoided by -- 

(i) Identifying and burying and/or treating, when necessary, materials which may adversely affect water 

quality, or be detrimental to vegetation or to public health and safety if not buried and/or treated, and 

(ii) Storing materials in a manner that will protect surface water and ground water by preventing 

erosion, the formation of polluted runoff, and the infiltration of polluted water. Storage shall be limited to the period until 

burial and/or treatment first become feasible, and so long as storage will not result in any risk of water pollution or other

environmental damage. 

(2) Storage, burial or treatment practices shall be consistent with other material handling and disposal provisions 

of this chapter. 

(g) Transfer of wells. Before final release of bond, exploratory or monitoring wells shall be sealed in a safe and 

environmentally sound manner in accordance with Sections 816.13 to 816.15. With the prior approval of the regulatory 

authority, wells may be transferred to another party for further use. At a minimum, the conditions of such transfer shall 

comply with State and local law and the permittee shall remain responsible for the proper management of the well until 

bond release in accordance with Sections 816.13 to 816.15. 

(h) Water rights and replacement. Any person who conducts surface mining activities shall replace the water supply of 

an owner of interest in real property who obtains all or part of his or her supply of water for domestic, agricultural, 

industrial, or other legitimate use from an underground or surface source, where the water supply has been adversely 

impacted by contamination, diminution, or interruption proximately resulting from the surface mining activities. Baseline 

hydrologic information required in Sections 780.21 and 780.22 of this chapter shall be used to determine the extent of the 

impact of mining upon ground water and surface water. 

(i) Discharges into an underground mine. 

(1) Discharges into an underground mine are prohibited, unless specifically approved by the regulatory authority 

after a demonstration that the discharge will -- 

(i) Minimize disturbance to the hydrologic balance on the permit area, prevent material damage outside 

the permit area and otherwise eliminate public hazards resulting from surface mining activities; 

(ii) Not result in a violation of applicable water quality standards or effluent limitations; 

(iii) Be at a known rate and quality which shall meet the effluent limitations of Section 816.42 for pH 

and total suspended solids, except that the pH and total suspended-solids limitations may be exceeded, if approved by the 

regulatory authority; and 
(iv) Meet with the approval of the Mine Safety and Health Administration. 

(2) Discharges shall be limited to the following: 

(i) Water; 

(ii) Coal processing waste; 

(iii) Fly ash from a coal-fired facility; 

(iv) Sludge from an acid-mine-drainage treatment facility; 

(v) Flue-gas desulfurization sludge; 

(vi) Inert materials used for stabilizing underground mines; and 

(vii) Underground mine development wastes. 

 12. Section 816.43 is revised to read as follows: 

SECTION 816.43 - DIVERSIONS. 

(a) General requirements. 

(1) With the approval of the regulatory authority, any flow from mined areas abandoned before May 3, 1978, 

and any flow from undisturbed areas or reclaimed areas, after meeting the criteria of Section 816.46 for siltation structure 

removal, may be diverted from disturbed areas by means of temporary or permanent diversions. All diversions shall be 

designed to minimize adverse impacts to the hydrologic balance within the permit and adjacent areas, to prevent material 

damage outside the permit area and to assure the safety of the public. Diversions shall not be used to divert water into 

underground mines without approval of the regulatory authority under Section 816.41(i). 

(2) The diversion and its appurtenant structures shall be designed, located, constructed, maintained and used to 

-- 

(i) Be stable; 

(ii) Provide protection against flooding and resultant damage to life and property; 

(iii) Prevent, to the extent possible using the best technology currently available, additional 

contributions of suspended solids to streamflow outside the permit area; and 

(iv) Comply with all applicable local, State, and Federal laws and regulations. 

(3) Temporary diversions shall be removed promptly when no longer needed to achieve the purpose for which

they were authorized. The land disturbed by the removal process shall be restored in accordance with this part. Before 

diversions are removed, downstream water-treatment facilities previously protected by the diversion shall be modified or 

removed, as necessary, to prevent overtopping or failure of the facilities. This requirement shall not relieve the operator 

from maintaining water-treatment facilities as otherwise required. A permanent diversion or a stream channel reclaimed 

after the removal of a temporary diversion shall be designed and constructed so as to restore or approximate the 

premining characteristics of the original stream channel including the natural riparian vegetation to promote the recovery 

and the enhancement of the aquatic habitat. 

(4) The regulatory authority may specify design criteria for diversions to meet the requirements of this section. 

(b) Diversion of perennial and intermittent streams . 

(1) Diversion of perennial and intermittent streams within the permit area may be approved by the regulatory 

authority after making the finding relating to stream buffer zones that the diversion will not adversely affect the water 

quantity and quality and related environmental resources of the stream. 

(2) The design capacity of channels for temporary and permanent stream channel diversions shall be at least 

equal to the capacity of the unmodified stream channel immediately upstream and downstream from the diversion. 

(3) The requirements of paragraph (a)(2)(ii) of this section shall be met when the temporary and permanent 

diversions for perennial and intermittent streams are designed so that the combination of channel, bank and flood-plain 

configuration is adequate to pass safely the peak runoff of a 10-year, 6-hour precipitation event for a temporary diversion 

and a 100-year, 6-hour precipitation event for a permanent diversion. 

(4) The design and construction of all stream channel diversions of perennial and intermittent streams shall be 

certified by a qualified registered professional engineer as meeting the performance standards of this part and any design 

criteria set by the regulatory authority. 
(c) Diversion of miscellaneous flows . 

(1) Miscellaneous flows, which consist of all flows except for perennial and intermittent streams, may be 

diverted away from disturbed areas if required or approved by the regulatory authority. Miscellaneous flows shall include 

ground-water discharges and ephemeral streams. 

(2) The design, location, construction, maintenance, and removal of diversions of miscellaneous flows shall meet 

all of the performance standards set forth in paragraph (a) of this section: 

(3) The requirements of paragraph (a)(2)(ii) of this section shall be met when the temporary and permanent 

diversions for miscellaneous flows are designed so that the combination of channel, bank and flood-plain configuration is 

adequate to pass safely the peak runoff of a 2-year, 6-hour precipitation event for a temporary diversion and a 10-year, 

6-hour precipitation event for a permanent diversion. 

 Sections 816.44, 816.48, 816.50, 816.51, 816.52, 816.53, 816.54 and 816.55 [Removed] 

 13. Sections 816.44, 816.48, 816.50, 816.51, 816.52, 816.53, 816.54 and 816.55 are removed. 

PART 817 -- PERMANENT PROGRAM PERFORMANCE STANDARDS -- UNDERGROUND MINING 

ACTIVITIES 

SECTIONS 817.13 and 817.15 [Amended] 

 14. Sections 817.13 and 817.15 are amended by replacing the reference " Section 817.53" in each section with the

reference " Section 817.41." 

 15. Section 817.15 is also amended by replacing the reference " Sections 817.13 and 817.50" with the reference " 

Section 817.13." 

 16. Section 817.41 is revised to read as follows: 

SECTION 817.41 - HYDROLOGIC-BALANCE PROTECTION. 

(a) General. All underground mining and reclamation activities shall be conducted to minimize disturbance of the 

hydrologic balance within the permit and adjacent areas, to prevent material damage to the hydrologic balance outside the 

permit area, and to support approved postmining land uses in accordance with the terms and conditions of the approved 

permit and the performance standards of this part. The regulatory authority may require additional preventative, remedial, 

or monitoring measures to assure that material damage to the hydrologic balance outside the permit area is prevented. 

Mining and reclamation practices that minimize water pollution and changes in flow shall be used in preference to water 

treatment. 

(b) Ground-water protection. In order to protect the hydrologic balance underground mining activities shall be 

conducted according to the plan approved under Section 784.14(g) of this chapter and the following. 

(1) Ground-water quality shall be protected by handling earth materials and runoff in a manner that minimizes 

acidic, toxic, or other harmful infiltration to ground-water systems and by managing excavations and other disturbances 

to prevent or control the discharge of pollutants into the ground water. 

(2) Ground-water quantity shall be protected by handling earth materials and runoff in a manner that will restore 

approximate premining recharge capacity of the reclaimed area as a whole, excluding coal mine waste disposal areas and 

fills, so as to allow the movement of water to the ground-water system. 

(c) Ground-water monitoring. 

(1) Ground-water monitoring shall be conducted according to the ground-water monitoring plan approved 

under Section 784.14(h) of this chapter. The regulatory authority may require additional monitoring when necessary. 

(2) Ground-water monitoring data shall be submitted every 3 months to the regulatory authority or more 

frequently as prescribed by the regulatory authority. Monitoring reports shall include analytical results from each sample 
taken during the reporting period. When the analysis of any ground-water sample indicates noncompliance with the 

permit conditions, then the operator shall promptly notify the regulatory authority and immediately take the actions 

provided for in Sections 773.17(e) and 784.14(g) of this chapter. 

(3) Ground-water monitoring shall proceed through mining and continue during reclamation until bond release. 

Consistent with the procedures of Section 774.13 of this chapter, the regulatory authority may modify the monitoring 

requirements including the parameters covered and the sampling frequency if the operator demonstrates, using the 

monitoring data obtained under this paragraph, that -- 

(i) The operation has minimized disturbance to the prevailing hydrologic balance in the permit and 

adjacent areas and prevented material damage to the hydrologic balance outside the permit area; water quantity and 

quality are suitable to support approved postmining land uses; or 

(ii) Monitoring is no longer necessary to achieve the purposes set forth in the monitoring plan 

approved under Section 784.14(h) of this chapter. 

(4) Equipment, structures, and other devices used in conjunction with monitoring the quality and quantity of 

ground water onsite and offsite shall be properly installed, maintained, and operated and shall be removed by the 

operator when no longer needed. 

(d) Surface-water protection. In order to protect the hydrologic balance, underground mining activities shall be 

conducted according to the plan approved under Section 784.14(g) of this chapter, and the following: 

(1) Surface-water quality shall be protected by handling earth materials, ground-water discharges, and runoff in 

a manner that minimizes the formation of acidic or toxic drainage; prevents, to the extent possible using the best 

technology currently available, additional contribution of suspended solids to streamflow outside the permit area; and 

otherwise prevent water pollution. If drainage control, restabilization and revegetation of disturbed areas, diversion of 

runoff, mulching, or other reclamation and remedial practices are not adequate to meet the requirements of this section 

and Section 817.42, the operator shall use and maintain the necessary water-treatment facilities or water quality controls. 

(2) Surface-water quantity and flow rates shall be protected by handling earth materials and runoff in 

accordance with the steps outlined in the plan approved under Section 784.14(g) of this chapter. 

(e) Surface-water monitoring. 

(1) Surface-water monitoring shall be conducted according to the surface-water monitoring plan approved 

under Section 784.14(i) of this chapter. The regulatory authority may require additional monitoring when necessary. 

(2) Surface-water monitoring data shall be submitted every 3 months to the regulatory authority or more 

frequently as prescribed by the regulatory authority. Monitoring reports shall include analytical results from each sample 

taken during the reporting period. When the analysis of any surface-water sample indicates noncompliance with the 

permit conditions, the operator shall promptly notify the regulatory authority and immediately take the actions provided 

for in Sections 773.17(e) and 784.14(g) of this chapter. The reporting requirements of this paragraph do not exempt the 

operator from meeting any National Pollutant Discharge Elimination System (NPDES) reporting requirements. 

(3) Surface-water monitoring shall proceed through mining and continue during reclamation until bond release. 

Consistent with Section 774.13 of this chapter, the regulatory authority may modify the monitoring requirements, except 

those required by the NPDES permitting authority, including the parameters covered and sampling frequency if the 

operator demonstrates, using the monitoring data obtained under this paragraph, that – 

(i) The operation has minimized disturbance to the hydrologic balance in the permit and adjacent areas 

and prevented material damage to the hydrologic balance outside the permit area; water quantity and quality are suitable 

to support approved postmining land uses; and 

(ii) Monitoring is no longer necessary to achieve the purposes set forth in the monitoring plan 

approved under Section 784.14(i) of this chapter. 

(4) Equipment, structures, and other devices used in conjunction with monitoring the quality and quantity of 

surface water onsite and offsite shall be properly installed, maintained, and operated and shall be removed by the 

operator when no longer needed. 

(f) Acid- and toxic-forming materials. 

(1) Drainage from acid- and toxic-forming materials and underground development waste into surface water and 

ground water shall be avoided by -- 

(i) Identifying and burying and/or treating, when necessary, materials which may adversely affect water 

quality, or be detrimental to vegetation or to public health and safety if not buried and/or treated, and 

(ii) Storing materials in a manner that will protect surface water and ground water by preventing 

erosion, the formation of polluted runoff, and the infiltration of polluted water. Storage shall be limited to the period until 
burial and/or treatment first become feasible, and so long as storage will not result in any risk of water pollution or other 

environmental damage. 

(2) Storage, burial or treatment practices shall be consistent with other material handling and disposal provisions 

of this chapter. 

(g) Transfer of wells. Before final release of bond, exploratory or monitoring wells shall be sealed in a safe and 

environmentally sound manner in accordance with Sections 817.13 and 817.15. With the prior approval of the regulatory 

authority, wells may be transferred to another party for further use. However, at a minimum, the conditions of such 

transfer shall comply with State and local laws and the permittee shall remain responsible for the proper management of 

the well until bond release in accordance with Sections 817.13 to 817.15. 

(h) Discharges into an underground mine. 

(1) Discharges into an underground mine are prohibited, unless specifically approved by the regulatory authority 

after a demonstration that the discharge will -- 

(i) Minimize disturbance to the hydrologic balance on the permit area, prevent material damage outside 

the permit area and otherwise eliminate public hazards resulting from underground mining activities; 

(ii) Not result in a violation of applicable water quality standards or effluent limitations; 

(iii) Be at a known rate and quality which shall meet the effluent limitations of Section 817.42 for pH 

and total suspended solids, except that the pH and total suspended solids limitations may be exceeded, if approved by the 

regulatory authority; and 

(iv) Meet with the approval of the Mine Safety and Health Administration. 

(2) Discharges shall be limited to the following: 

(i) water; 

(ii) Coal-processing waste; 

(iii) Fly ash from a coal-fired facility; 

(iv) Sludge from an acid-mine-drainage treatment facility; 

(v) Flue-gas desulfurization sludge; 

(vi) Inert materials used for stabilizing underground mines; and 

(vii) Underground mine development wastes. 

(3) Water from one underground mine may be diverted into other underground workings according to the 

requirements of this section. 

(i) Gravity discharges from underground mines. 

(1) Surface entries and accesses to underground workings shall be located and managed to prevent or control 

gravity discharge of water from the mine. Gravity discharges of water from an underground mine, other than a drift mine 

subject to paragraph (i)(2) of this section, may be allowed by the regulatory authority if it is demonstrated that the 

untreated or treated discharge complies with the performance standards of this part and any additional NPDES permit 

requirements. 

(2) Notwithstanding anything to the contrary in paragraph (i)(1) of this section, the surface entries and accesses 

of drift mines first used after the implementation of a State, Federal, or Federal Lands Program and located in 

acid-producing or iron-producing coal seams shall be located in such a manner as to prevent any gravity discharge from 

the mine. 

 17. Section 817.43 is revised to read as follows: 

SECTION 817.43 - DIVERSIONS. 

(a) General requirements. 

(1) With the approval of the regulatory authority, any flow from mined areas abandoned before May 3, 1978, 

and any flow from undisturbed areas or reclaimed areas, after meeting the criteria of Section 817.46 for siltation structure 

removal, may be diverted from disturbed areas by means of temporary or permanent diversions. All diversions shall be 

designed to minimize adverse impacts to the hydrologic balance within the permit and adjacent areas, to prevent material 

damage outside the permit area and to assure the safety of the public. Diversions shall not be used to divert water into 

underground mines without approval of the regulatory authority in accordance with Section 817.41(h). 
(2) The diversion and its appurtenant structures shall be designed, located, constructed, and maintained to –

(i) Be stable; 

(ii) Provide protection against flooding and resultant damage to life and property; 

(iii) Prevent, to the extent possible using the best technology currently available, additional 

contributions of suspended solids to streamflow outside the permit area; and 

(iv) Comply with all applicable local, State, and Federal laws and regulations. 

(3) Temporary diversions shall be removed when no longer needed to achieve the purpose for which they were 

authorized. The land disturbed by the removal process shall be restored in accordance with this part. Before diversions 

are removed, downstream water-treatment facilities previously protected by the diversion shall be modified or removed, 

as necessary, to prevent overtopping or failure of the facilities. This requirement shall not relieve the operator from 

maintaining water-treatment facilities as otherwise required. A permanent diversion or a stream channel reclaimed after 

the removal of a temporary diversion shall be designed and constructed so as to restore or approximate the premining 

characteristics of the original stream channel including the natural riparian vegetation to promote the recovery and the 

enhancement of the aquatic habitat. 

(4) The regulatory authority may specify additional design criteria for diversions to meet the requirements of this 

section. 

(b) Diversion of perennial and intermittent streams. 

(1) Diversion of perennial and intermittent streams within the permit area may be approved by the regulatory 

authority after making the finding relating to stream buffer zones called for in 30 CFR 817.57 that the diversions will not 

adversely affect the water quantity and quality and related environmental resources of the stream.

(2) The design capacity of channels for temporary and permanent stream channel diversions shall be at least 

equal to the capacity of the unmodified stream channel immediately upstream and downstream from the diversion. 

(3) The requirements of paragraph (a)(2)(ii) of this section shall be met when the temporary and permanent 

diversions for perennial and intermittent streams are designed so that the combination of channel, bank and flood-plain 

configuration is adequate to pass safely the peak runoff of a 10-year, 6-hour precipitation event for a temporary diversion 

and a 100-year, 6-hour precipitation event for a permanent diversion. 

(4) The design and construction of all stream channel diversions of perennial and intermittent streams shall be 

certified by a qualified registered professional engineer as meeting the performance standards of this part and any design 

criteria set by the regulatory authority. 

(c) Diversion of miscellaneous flows. 

(1) Miscellaneous flows, which consist of all flows except for perennial and intermittent streams, may be 

diverted away from disturbed areas if required or approved by the regulatory authority. Miscellaneous flows shall include 

ground-water discharges and ephemeral streams. 

(2) The design, location, construction, maintenance, and removal of diversions of miscellaneous flows shall meet 

all of the performance standards set forth in paragraph (a) of this section. 

(3) The requirements of paragraph (a)(2)(ii) of this section shall be met when the temporary and permanent 

diversions for miscellaneous flows are designed so that the combination of channel, bank and flood-plain configuration is 

adequate to pass safely the peak runoff of a 2-year, 6-hour precipitation event for a temporary diversion and a 10-year, 

6-hour precipitation event for a permanent diversion. 

SECTIONS 817.44, 817.48, 817.50, 817.52, 817.53, 817.54 and 817.55 [Removed] 

 18. Sections 817.44, 817.48, 817.50, 817.52, 817.53, 817.54 and 817.55 are removed. 

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

[FR Doc. 83-25659 Filed 9-22-83; 8:45 am] 

BILLING CODE 4310-05-M