FEDERAL REGISTER: 51 FR 41734 (November 18, 1986)

DEPARTMENT OF THE INTERIOR

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

30 CFR Parts 701, 816, and 817

Surface Coal Mining and Reclamation Operations -- Permanent Regulatory Program; 

Removal of Adverse Physical Impact Definition and Certain Remining Operations Performance Standards

ACTION: Final rule. 

SUMMARY: The Office of Surface Mining Reclamation and Enforcement (OSMRE) is removing from its rules the 

definition of adverse physical impact, and certain performance standards pertaining to remining operations. The effect of 

these changes is to require all persons conducting remining operations on previously mined areas to use all reasonably 

available spoil in the immediate vicinity of the operation to backfill the highwall to the maximum extent technically 

practical. 

EFFECTIVE DATE: December 18, 1986. 

FOR FURTHER INFORMATION CONTACT: Raymond Aufmuth, Division of State Program Assistance, Office of 

Surface Mining Reclamation and Enforcement, U.S. Department of the Interior, 1951 Constitution Avenue NW., 

Washington, DC 20240; Telephone: 202-343-5843. 

SUPPLEMENTARY INFORMATION: 

I. Background 

II. General Discussion 

III. Responses to Comments 

IV. Procedural Matters 

 

I. BACKGROUND 

 On January 7, 1982 (47 FR 928), and June 25, 1982 (47 FR 27734), the Office of Surface Mining Reclamation and 

Enforcement (OSMRE) proposed permit and performance standards for remining previously mined areas. The January 7, 

1982, proposal included a requirement to reclaim highwalls affected by remining, while the June 25, 1982, proposal 

provided additional standards applicable to remining and reprocessing operations. On November 12, 1982 (47 FR 

51316), OSMRE issued an interim final rule applicable to remining of steep slope areas. That interim final rule, as well as 

other aspects of the June 25, 1982, proposal, were considered in OSMRE's "Final Environmental Impact Statement, 

OSM-EIS-1: Supplement" on the permanent program regulations. 

 In a final rule promulgated on September 16, 1983 (48 FR 41720), OSMRE revised portions of its regulations at 30 

CFR 816.106 and 817.106 on performance standards applicable to remining operations. Under the revised rule at 30 

CFR 816.106(b) and 817.106(b), remining operations with no adverse physical impact on a pre-existing highwall were 

excepted from the requirement to use all reasonably available spoil in the immediate vicinity of the operation to backfill 

the highwall to the maximum extent technically practical. 

 These revised regulations were challenged in Round III of In Re: Permanent Surface Mining Litigation II, Civil Action 

No. 79-1144 (D.D.C. 1984). However, before that portion of the case was decided, the Secretary of the Interior, in a 

joint motion with the environmental plaintiffs (the National Wildlife Federation et al.), agreed to suspend the definition of

adverse physical impact as well as the related regulations at 30 CFR 816.106(b) and 817.106(b). On December 3, 1984, 

the court entered an order approving the agreement. 

 As a result of the court order, on January 3, 1985 (50 FR 257), OSMRE suspended 30 CFR 816.106(b) and 

817.106(b), and the definition of adverse physical impact at 30 CFR 701.5. 

 On June 13, 1985 (50 FR 24881), OSMRE proposed to amend its remining regulations to permanently remove the 

suspended provisions. A seventy-day public comment period was announced in the proposed rule, to close on 
August 22, 1985. 

 OSMRE received comments on the proposed rule from a total of six individuals and organizations, representing 

industry, citizens, environmental groups, and other government agencies. OSMRE has reviewed these comments 

carefully and has taken them into consideration in writing this final rule. No request was received for a public hearing or 

meeting, and none was held. 

 

II. GENERAL DISCUSSION 

 This rule removes from 30 CFR 701.5 the definition of adverse physical impact. 

 Also, it removes from 30 CFR 816.106 paragraph (b), which excepted from the backfilling and grading requirements 

of paragraph (a) those remining operations that would not cause an adverse physical impact. The introductory text of 

Section 816.106 is redesignated as paragraph (a), and paragraph (a) is redesignated as paragraph (b). 

 Finally, this rule amends 30 CFR 817.106, which applies to underground mining, in the same way as it amends Section

816.106. 

 As a result of this rule the exceptions in removed Sections 816.106(b) and 817.106(b) for operations that would not 

cause an adverse physical impact no longer apply. All remining operations covered by redesignated Sections 816.106 (a) 

and (b) and 817.106 (a) and (b) must comply with the specified backfilling and grading requirements. 

 OSMRE will interpret and enforce redesignated paragraphs (a) and (b) as described in the preamble to the rule under 

which they originally were promulgated. 48 FR 41720 (September 16, 1983). An operator who conducts remining 

operations will be responsible for those areas which he reaffects and/or redisturbs. Where a remining operation reaffects 

or enlarges a preexisting highwall, and all reasonably available spoil is insufficient to completely eliminate the highwall, 

the operator will be required to backfill the highwall to the maximum extent technically practical using all spoil generated 

by the remining operation and any other reasonably available spoil located in the permit area. Under this rule, additional 

highwall cuts and face up areas for underground mines on previously mined areas are assumed to reaffect or enlarge a 

preexisting highwall. Auger mining operations are covered under 30 CFR 819 and are not affected by this rule. 

 

III. RESPONSES TO COMMENTS 

 

SECTION 705.1 - DEFINITIONS 

ADVERSE PHYSICAL IMPACT 

 A number of comments on the proposed rule concerned the removal from 30 CFR 701.5 of the definition of the term 

adverse physical impact. Since these comments typically pertained to removed Sections 816.106(b) and 817.106(b) as 

well, for convenience they are discussed below with the related comments on these latter sections. 

 

SECTIONS 816.106 AND 817.106 - BACKFILLING AND GRADING: PREVIOUSLY MINED AREAS 

 A number of comments on the proposed rule concerned the substance of, or proposed the amendment of, redesignated 

Sections 816.106 (a) and (b), and 817.106 (a) and (b). Since this rule does not affect the substance of these sections, 

these comments do not pertain to this rule, and further response by OSMRE is not appropriate. For guidance on how 

OSMRE will interpret and enforce amended Sections 816.106 and 817.106, see the preamble to the rule under which 

they originally were promulgated. 48 FR 41720 (September 16, 1983). 

 

REMOVED SECTIONS 816.106(b) AND 817.106(b) 

AGREEMENT WITH PROPOSED RULE 

 Two commenters agreed with the intent of the proposed rule. Generally, they concluded that it was an important 

means to mitigate environmental degradation and physical hazards resulting from mining activity conducted prior to 

enactment of the Surface Mining Control and Reclamation Act of 1977, 30 U.S.C. 1201 et seq. OSMRE agrees. 
 

CONSISTENCY WITH THE ACT 

 Several commenters stated that the proposed rule was inconsistent with the Surface Mining Control and Reclamation 

Act of 1977 (the Act), 30 U.S.C. 1201 et seq. 

 OSMRE disagrees. This rule is consistent with section 515(b)(3) of the Act, 30 U.S.C. 1265(b)(3), as interpreted in a 

related context in In Re: Permanent Surface Mining Litigation II, No. 79-1144, slip op. at 25-29 (D.D.C. July 6, 1984). 

There, the District Court upheld 30 CFR 819.19(b), which pertains to auger mining of previously mined areas, and is 

essentially the same as redesignated Sections 816.106(b) and 817.106(b). Thus, by removing the exception for operations 

that do not cause an adverse physical impact, this rule brings Sections 816.106 and 817.106 into conformance with a rule 

that has been challenged and upheld as lawful. 

 

INTERPRETATION OF REDESIGNATED PROVISIONS 

 A number of commenters on the proposed rule asked for guidance on how to interpret the requirements of Sections

816.106 and 817.106 in the absence of the exception for operations that would not cause an adverse physical impact. 

As stated previously, OSMRE will interpret and enforce redesignated paragraphs (a) and (b) of Sections 816.106 and 

817.106 as described in the preamble to the rule under which they originally were promulgated. 48 FR 41720 (September 

16, 1983). 

 Due to diversity of circumstances under which a remining operation may reaffect or enlarge a pre-existing highwall, it 

is not possible to provide in advance specific guidance applicable to all situations. To the extent additional guidance may 

be needed by an operator, it will be provided by the regulatory authority during the permitting process on the basis of the 

information on remining that is submitted in a complete permit application. 

 

ADVERSE EFFECT NOT RELEVANT 

 One commenter concluded that under the proposed rule remining always would be viewed by OSMRE as causing an 

adverse effect on a highwall. 

 OSMRE disagrees. In removing from Section 701.5 the definition of adverse physical impact, and removing from 

Sections 816.106 and 817.106 the exception in paragraphs (b) for operations that do not cause an adverse physical 

impact, OSMRE has eliminated from these backfilling and grading regulations any consideration of adverse effect. 

OSMRE will not and need not view remining under the rule as always causing an adverse effect because the requirements 

of amended Sections 816.106 and 817.106 do not depend on adverse affect. Under the relevant terms of redesignated 

paragraphs (b), the requirement to eliminate a pre-existing highwall to the maximum extent practical depends only on 

whether the highwall is "reaffected or enlarged." 

 

IBSMA DECISIONS 

 One commenter asked OSMRE to explain how removal of the definition of adverse physical impact from Section

701.5, and of the corresponding performance standards from Sections 816.106(b) and 817.106(b), was related to the 

decisions of the Interior Board of Surface Mining and Reclamation Appeals (the board) in Cedar Coal Co. v. OSM, 1 

IBSMA 145 (April 20, 1979), and Miami Springs Properties v. OSM, 1 IBSMA 399 (Dec. 23, 1980). This commenter 

concluded that for these two decisions to have meaning a definition of the term adverse physical impact was necessary. 

 OSMRE disagrees. Notwithstanding any previous interpretation to the contrary, OSMRE has concluded that neither 

board decision applies to Sections 816.106 or Section 817.106. Cedar Coal Co. and Miami Springs Properties interpret 

the OSMRE interim program regulations which required complete highwall elimination, while Sections 816.106 and 

817.106 come under the permanent program, which differs in its specific requirements. Moreover, to the extent these 

decisions might be construed as applying to the permanent program, it is within the discretion of OSMRE to revise its 

regulations to negate their effect. 

 In Cedar Coal Co. the permittee, operating under an interim program permit, had removed overburden from the base 

of an orphaned highwall, resulting in new highwall exposures. The board, interpreting the OSMRE interim program 
regulations, found "no showing that Cedar's removal of overburden [had] resulted in any adverse physical impact on the 

orphaned highwall," and thus concluded that "this activity [had] not triggered any obligation on the part of Cedar to 

eliminate the highwall." 1 IBSMA at 155. 

 In Miami Springs Properties the board read Cedar Coal Co. as clearly implying "that a[n interim program] permittee 

who did disturb an orphaned highwall in such a way as to cause an adverse physical impact on the highwall might be 

responsible for its complete elimination." 2 IBSMA at 403. 

 The board decisions in Cedar Coal Co. and Miami Springs Properties interpret the interim program regulation on 

backfilling and grading at 30 CFR 715.14, which in paragraph (b)(1)(ii) requires the complete elimination of a reaffected 

pre-existing highwall. Both decisions interpret the highwall elimination requirement of Section 715.14 as conditioned 

upon whether disturbance of the highwall causes an adverse physical impact. 

 Unlike Section 715.14, the corresponding permanent program regulations at 30 CFR 816.102 and 817.102 authorize 

less than complete elimination of a pre-existing highwall in accordance with Sections 816.106 and 817.106, respectively. 

In appropriate circumstances, redesignated paragraphs (b) of these sections require an operator to eliminate a 

pre-existing highwall only to the maximum extent technically practical. Thus, the requirements of the permanent program 

for reclamation of a pre-existing highwall are significantly more flexible than those of the interim program. 

 Based on a previous interpretation of the board decisions in Cedar Coal Co. and Miami Springs Properties, OSMRE 

incorporated in previous Sections 816.106(b) and 817.106(b) (herein removed), an exception to the highwall elimination 

requirements for permanent program operations that do not cause an adverse physical impact. It is this exception that this 

rule removes, along with the related definition in Section 701.5 of adverse physical impact. 

 In view of the greater flexibility afforded by the permanent program regulations, OSMRE has concluded that the 

Board's interpretation of the interim program regulation on backfilling and grading does not apply to the permanent 

program, and that it is not reasonable to include in Sections 816.106 and 817.106 an exception for operations that do not 

cause an adverse physical impact. OSMRE believes that in removing this exception this rule strikes a reasonable balance 

between protection of the environment and agricultural productivity and this country's need for coal. 

 

EFFECT ON COSTS OF REMINING 

 Several commenters indicated that removing the exception for remining operations that do not cause an adverse 

physical impact would increase the cost and volume of spoil movement without any corresponding economic benefit from 

additional coal production. 

 OSMRE agrees that where the removed exception otherwise would have applied, remining operations may incur 

minor additional spoil-handling costs in complying with amended Sections 816.106 and 817.107. However, this rule does 

not impose any additional obligation on an operator to move spoil from outside the immediate vicinity of the remining 

operations, and any additional costs can readily be considered in assessing the economic feasibility of a particular 

remining operation. 

 The same commenter asked who would bear the cost of a worst case environmental impact, such as a landslide, that 

occurred during remining. The commenter stated that such costs are unpredictable and would hinder the remining of 

some areas. 

 In removing the exception for operations that do not cause an adverse physical impact, this rule does not affect a 

permittee's responsibility for unforeseen reclamation costs. Until the performance bond is released, a permittee will 

continue to be responsible for environmental problems that may occur on the permit area. Sound engineering design and 

operating practices should eliminate most costs of this type. 

 Finally, this commenter suggested that unplanned for, additional reclamation operations should be approved upon 

initial permit application to prevent after-the-fact costs to permittees. 

 OSMRE considered this suggestion, but did not adopt it since it would require the regulatory authority to give blanket 

approval to reclamation of an unknown nature which might never occur. Under such an approach the regulatory 
authority would have insufficient information to determine how the additional reclamation would be done, and thus 

insure that it would be environmentally sound. 

 

FURTHER DISINCENTIVES TO REMINING 

 One commenter stated that the proposed rule would create further disincentives to remining, and thus lessen the 

amount of reclamation and societal benefits which accrue from such activities. This commenter stated that the combined 

effect of the proposed rule and the court-mandated revision in the definition of previously mined area (See 51 FR 27508

(July 31, 1986)) would be to lessen the acreage of lands where the variances of Sections 816.106 and 817.106 were 

applicable. This commenter believed that the remining permittee should be responsible only for the additional impacts of 

remining, but not those from previous operations. This commenter concluded that under the rule reclamation that would 

have been accomplished at no cost to the taxpayer through remining would not be done, and that the resulting 

unreclaimed lands would continue to pollute and degrade the environment. 

 While this rule may result in some remining operations incurring minor additional spoil-handling costs in complying 

with amended Sections 816.106 and 817.106, OSMRE does not believe that there will be a significant impact on 

remining operations. 

 

THIN SEAM MINING 

 One commenter expressed concern that removing the exception for operations that do not cause an adverse physical 

impact might preclude the use of the technology known as thin seam mining. This commenter stated that removing spoil 

from the outslope of an old surface mine bench is technically practicable, but economically infeasible in a thin seam 

mining operation. 

 This rule is not likely to affect thin seam mining operations, which may be considered to be a form of auger mining. As 

such this type of mining operation will be covered by the performance standards found at 30 CFR 819. For a discussion 

of auger mining, see 48 FR 19314, 19321 (April 28, 1983). 

 

COORDINATION WITH OTHER RULES 

 One commenter urged OSMRE to coordinate this rule closely with other related rules presently under consideration. 

This commenter cited the substantial, combined, potential impacts of these rules on the remining industry. OSMRE 

agrees, and is closely coordinating all of its rulemaking activities to insure a consistent, workable, regulatory scheme. 

 

IMMEDIATE VICINITY 

 One comment on the proposed rule concerned the meaning of the term immediate vicinity, which is used in 

redesignated Sections 816.106(b) and 817.106(b), but is not defined. Since this rule does not affect either the meaning of 

this term or the substance of these sections, the comment does not pertain directly to this rule, and further response by 

OSMRE is not needed. For information on the meaning of this term, see the discussion of final Section 816.106(a)(1) at 

48 FR 41728 (September 16, 1983). 

 

PREVIOUSLY MINED AREA 

 One comment on the proposed rule concerned the definition in 30 CFR 701.5 of the term previously mined area. 

Although this term is used in redesignated Sections 816.106(a) and 817.106(a), this rule does not affect either its 

definition or the substance of these latter sections. Therefore, the comment does not pertain to this rule, and further 

response by OSMRE is not appropriate. For a recent OSMRE proposal to amend the definition of previously mined area, 

see 51 FR 27508 (July 31, 1986) 

 

REASONABLY AVAILABLE SPOIL 

 Several comments on the proposed rule concerned the definition in 30 CFR 701.5 of the term reasonably available 

spoil. Although this term is used in redesignated Sections 816.106(b) and 817.106(b), this rule does not affect either the 

definition of this term or the substance of these latter sections. Therefore, these comments do not pertain to this rule, and 
further response by OSMRE is not appropriate. For a discussion of the definition of this term, see 48 FR 41720

(September 16, 1983), and 47 FR 51316 (November 12, 1982). 

 

IV. PROCEDURAL MATTERS 

 

Federal Paperwork Reduction Act 

 This rule contains no new information collection requirements. The information collection requirements in the affected 

sections of the previous rules were submitted to the Office of Management and Budget under 44 U.S.C. and 3507 and 

assigned clearance numbers 1029-0047 (Part 816), and 1029-0048 (Part 817). 

 

Executive Order 12291 

 The Department of the Interior (DOI) has examined this rule according to the criteria of Executive Order 12291 

(February 17, 1981) and has determined that it is not a major rule and does not require a regulatory impact analysis. Any 

negative economic impact on coal operators will be offset by a corresponding positive impact on the environment and 

public health and safety. 

 

Regulatory Flexibility Act 

 The DOI also has determined, pursuant to the Regulatory Flexibility Act, 5 U.S.C. 601 et seq., that this final rule will 

not have a significant economic impact on a substantial number of small entities. This rule may impact a relatively small 

number of coal operators, the majority of which will not be small entities. 

 

National Environmental Policy Act 

 OSMRE has prepared an environmental assessment (EA) for this rule, and has made a finding that it would not 

significantly affect the quality of the human environment under section 102(2)(C) of the National Environmental Policy 

Act of 1969, 42 U.S.C. 4332(2)(C). The EA and finding of no significant impact are on file in the administrative record 

for this rule in the OSMRE Administrative Record Room at 1100 L Street, NW., Washington, DC. 

 

Author 

 The principal author of this rule is Raymond E. Aufmuth, Division of State Program Assistance, Office of Surface 

Mining Reclamation and Enforcement, 1951 Constitution Avenue N.W., Washington, D.C., 20240; Telephone: 

202-343-5843 (Commercial or FTS). 

 

LIST OF SUBJECTS 

 

30 CFR Part 701 

 Law enforcement, Surface mining, Underground mining. 

 

30 CFR Part 816 

 Environmental protection, Reporting and recordkeeping requirements, Underground mining. 

 

30 CFR Part 817 

 Environmental protection, Reporting and recordkeeping requirements, Surface mining. 

 Accordingly, 30 CFR Parts 701, 816 and 817 are amended as set forth below: 

Dated: October 24, 1986. 

J. Steven Griles, Assistant Secretary for Lands and Mineral Management. 

PART 701 -- PERMANENT REGULATORY PROGRAM 

 1. The authority citation for Part 701 continues to read as follows: 

 Authority: Pub. L. 95-87, 91 Stat 445 (30 U.S.C. 1201 et seq.), unless otherwise noted. 
SECTION 701.5 [Amended] 

 2. Section 701.5 is amended by removing the definition of "Adverse physical impact". 

PART 816 -- PERMANENT PROGRAM PERFORMANCE STANDARDS -- SURFACE MINING 

ACTIVITIES 

 3. The authority citation for Part 816 continues to read as follows: 

 Authority: Pub. L. 95-87, 91 Stat 445 (30 U.S.C. 1201 et seq.), unless otherwise noted. 

SECTION 816.106 [Amended] 

 4. Section 816.106 is amended by removing paragraph (b), redesignating the introductory text as paragraph (a), and 

redesignating paragraph (a) as paragraph (b). 

PART 817 -- PERMANENT PROGRAM PERFORMANCE STANDARDS -- UNDERGROUND MINING 

ACTIVITIES 

 5. The authority citation for Part 817 continues to read as follows: 

 Authority: Pub. L 95-87, 91 Stat 445 (30 U.S.C. 1201 et seq.), unless otherwise noted. 

SECTION 817.106 [Amended] 

 6. Section 817.106 is amended by removing paragraph (b), redesignating the introductory text as paragraph (a), and 

redesignating paragraph (a) as paragraph (b). 

[FR Doc. 86-25966 Filed 11-17-86; 8:45 am] 

BILLING CODE 4310-05-M