FEDERAL REGISTER: 53 FR 21764 (June 9, 1988)

DEPARTMENT OF THE INTERIOR

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

30 CFR Parts 701, 800, 816 and 817

Permanent Regulatory Program; Surface Mining Activities; Underground Mining Activities; 

Bond and Insurance Requirements; Performance Standards

ACTION: Notice of reinstatement of suspended rules. 

SUMMARY: The Office of Surface Mining Reclamation and Enforcement (OSMRE) of the United States Department 

of the Interior is reinstating eight suspended rules that were upheld by the U.S. Court of Appeals for the District of 

Columbia Circuit in NWF v. Hodel. These rules had been suspended by OSMRE in response to decisions issued by the 

U.S. District Court for the District of Columbia in In Re: Permanent II. Generally, the rules concern the definition of 

support facilities, incremental bonding, phased bonding, the retention of highwalls in permanent impoundments, coal 

waste refuse pile compaction, and the construction of coal waste refuse piles using lifts greater than two feet thick. 

EFFECTIVE DATE: July 11, 1988. 

FOR FURTHER INFORMATION CONTACT: Richard O. Miller, Chief, Regulatory Development and Issues 

Management, Office of Surface Mining Reclamation and Enforcement, U.S. Department of the Interior, 1951 

Constitution Avenue, NW., Washington, DC 20240, Telephone: 202-343-5241 (Commercial or FTS). 

SUPPLEMENTARY INFORMATION: 

I. Background 

II. Discussion of Reinstated Rules 

III. Procedural Matters 

 

I. BACKGROUND 

 On February 21, 1985 (50 FR 7274), and November 20, 1986 (51 FR 41952), OSMRE published in the Federal 

Register two notices suspending certain portions of its permanent program rules. On July 10, 1985 (50 FR 28186),

OSMRE also published in the Federal Register an interim final rule which, among other things, suspended the definition 

of support facilities at 30 CFR 701.5. These rules were suspended in response to decisions issued by the U.S. District 

Court for the District of Columbia in In Re: Permanent Surface Mining Regulation Litigation (In Re: Permanent II), 21 

ERC 1193 (D.D.C. 1984) (Round I); 21 ERC 1724 (D.D.C. 1984) (Round II); 22 ERC 155.7 (D.D.C. 1985) (Round 

III-VER); and 629 F. Supp. 1519 (D.D.C. 1985) (Round III). 

 As noted in the two suspension notices, neither was intended to affect the right of the Secretary of the Interior to 

appeal the district court's decisions on any of the suspended rules. 50 FR 7274; 51 FR 41952. Appeals were filed, and 

on January 29, 1988, the U.S. Court of Appeals for the District of Columbia Circuit issued a decision which upheld a 

number of the suspended rules. NWF v. Hodel, No. 84-5743 (D.C. Cir. Jan. 29, 1988). As explained in detail under the 

following heading, II. Discussion of Reinstated Rules, this notice reinstates those suspended rules which the court of 

appeals upheld. 

 In NWF v. Hodel the court of appeals repeatedly recognized the discretion vested in the Secretary to use reasoned 

and expert judgment in interpreting the Surface Mining Control and Reclamation Act of 1977 (the Act or SMCRA), 30 

U.S.C. 1201 et seq. Slip op. at 43 (citing Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 

(1983)), 59 (citing Chevron U.S.A. Inc. v. NRDC, 467 U.S. 837, 844-45 (1984); and Chemical Mfrs. Ass'n v. NRDC, 

470 U.S. 116, 125 (1985)), 80-81, 104-105, 107, 133-134 and 137-138. 

 On the issue of whether the Secretary is required to promulgate rules that elucidate or elaborate upon the general 

environmental performance standards of the Act, the court of appeals ruled that "we read the Act, in light of its 

legislative history * * * to afford the Secretary discretion, absent an express statutory instruction to regulate, to decide 

whether fleshing out is appropriate in light of other concerns. Chief among those concerns is the need to accommodate 
widely varying local conditions that will not admit of a single, nationwide rule." Id. at 80-81 (footnote omitted). 

Nevertheless, when proposing to delete previously fleshed-out standards, "if [the Secretary] determines there is no need 

to 'flesh out' the statute, [he] must 'flesh out' his explanation [in the preamble to the rule] so that [the court] can review 

the rationality of his decision." Id. at 84. 

 OSMRE will interpret the reinstated rules in accordance with the court of appeals' decision in NWF v. Hodel, the 

notices of final rulemaking under which the rules originally were promulgated, and this reinstatement notice. For 

convenience, in the following discussion the corresponding rules for surface and underground mining activities are cited 

together as sections 816/817. 

 

II. DISCUSSION OF REINSTATED RULES 

 

SECTION 701.5 - DEFINITIONS. 

 OSMRE is reinstating the suspended definition of Support facilities at 30 CFR 701.5, as promulgated on May 5, 1983 

(48 FR 20392). The reinstated definition provides: "Support facilities means those facilities resulting from, or incident to, 

an activity identified in paragraph (a) of the definition of 'surface coal mining operations' in Section 700.5 of this chapter 

and the areas upon which such facilities are located. Support facilities may consist of, but need not be limited to, the 

following facilities: Mine buildings; bath houses; coal loading facilities; coal crushing and sizing facilities; coal storage

facilities; equipment and storage facilities; fan buildings; hoist buildings; sheds, shops, and other buildings; facilities used 

to treat and store water for mine consumption; and railroads, surface conveyor systems, chutes, aerial tramways, or other 

transportation facilities, but not including roads. 'Resulting from or incident to' an activity connotes an element of 

proximity to that activity." 

 The district court in In Re: Permanent II had ruled that the Act does not allow the Secretary to limit the definition of 

support facilities on the basis of geographic proximity. 21 ERC at 1202. The court of appeals in NWF v. Hodel reversed 

the district court and reinstated the definition. Slip op. at 148-150. 

 In reinstating the definition, the court of appeals ruled: "The statutory language neither plainly precludes the 

consideration of distance from the mine site nor dictates a functional test * * *. The Secretary's definition of support 

facilities does not impose a strict proximity test, but rather considers both function and distance to be relevant * * * . 

While it would have been contrary to the language and spirit of the Act to promulgate a per se distance rule cutting off 

coverage of coal mining support facilities otherwise subject to the Act solely because they were not adjacent to or nearby 

the mine site * * * it is not an irrational reading of the statute to conclude that distance may be 'an element of proximity,' 

* * * to be weighed among other factors." Id. at 149-150 (emphasis in original). 

 Notwithstanding the court of appeals' decision, however, OSMRE intends to propose a rule removing the definition of 

support facilities from 30 CFR 701.5. As noted in the July 10, 1985, notice suspending the definition, OSMRE has 

determined that the definition is not needed. (50 FR 28187). OSMRE appealed the district court ruling so that even in the 

absence of a definition proximity could be considered by the regulatory authority in identifying support facilities. 

 

SECTION 800.11(b) - INCREMENTAL BONDING. 

 

SECTION 800.13(a)(2) - PHASED BONDING. 

 OSMRE is reinstating 30 CFR 800.11(b), as promulgated on July 19, 1983 (48 FR 32932), to allow the applicant for 

a surface coal mining and reclamation permit to post a performance bond for less than the entire permit area. Reinstated 

paragraph (b)(1) provides: "The bond or bonds shall cover the entire permit area, or an identified increment of land 

within the permit area upon which the operator will initiate and conduct surface coal mining and reclamation operations 

during the initial term of the permit." Reinstated paragraphs (b)(2) to (b)(4) set out additional bonding procedures for the 

initial and successive increments of the permit area. 

 OSMRE also is reinstating 30 CFR 800.11(a)(2), as promulgated on July 19, 1983 (48 FR 32932). Reinstated 

paragraph (a)(2) provides: "With the approval of the regulatory authority, a bond may be posted and approved to 

guarantee specific phases of reclamation within the permit area provided the sum of phase bonds posted equals or 
exceeds the total amount required under [30 CFR] 800.14 and 800.15. The scope of work to be guaranteed and the 

liability assumed under each phase bond shall be specified in detail." 

 The district court in In Re: Permanent II had ruled that to the extent it allowed the applicant to post a performance

bond for an area less than the entire area to be mined within the initial permit term, Section 800.11(b) contradicted the 

Act and its legislative history. 21 ERC at 1744. With respect to Section 800.13(a)(2), the district court ruled that the Act 

"does not give the Secretary authority to break the bond into specific phases of reclamation." Id. at 1744. The court of 

appeals in NWF v. Hodel reversed the district court and upheld the rules. Slip op. at 56-62. 

 In upholding the incremental bonding approach of Section 800.11(b) and the phased bonding approach of Section

800.13(a)(2), the court of appeals "defer[red] to the reasonable interpretation ultimately proffered by the Secretary," and 

ruled that section 509(c) of the Act "reasonably could be read by the Secretary to permit his approval of alternative 

bonding methods that will fulfill the purposes of the Act." Id. at 59 (emphasis in original). 

 In upholding Section 800.11(b), the court of appeals ruled: "The district court rejected incremental bonding because 

the area covered by such a bond could be (and likely would be) smaller than the area to be mined in the course of one 

permit term. But under the Secretary's prescription, no surface area could be disturbed until the regulatory authority 

determined that the amount of bond posted for that area was sufficient to assure completion of the reclamation plan in 

the event of forfeiture. * * * True, the regulation allows an operator to confine bonding ahead to that portion of the 

permitted area that the operator plans to affect in the near future. But as long as the bond is calculated * * * at the full 

cost of reclaiming that particular increment of the land, and the size and configuration of the increment * * * are 

appropriate for efficient reclamation, we do not see how the arrangement appreciably heightens the risk that any land will 

be left unreclaimed." Id. at 60-61. 

 In upholding Section 800.11(a)(2), the court of appeals continued: "Phased bonding, too, measures up to the standard 

we deem critical. We reiterate that '[t]he total of the phase bonds must be sufficient to cover costs to the regulatory 

authority to complete the reclamation plan, and bond[s] covering all three phases must be posted before disturbance of 

the area or increment bonded.' " Id. at 61 (citation omitted, brackets in original). 

 The court of appeals concluded: "In sum, the Secretary reasonably construed Section 509(c) of the Act, and 

responsibly determined that the incremental and phased bonding programs he authorized fulfilled the statutory objective: 

to ensure, to the extent feasible, completion of the reclamation plan in the event that an operator defaults." Id. at 62. 

 

SECTIONS 816.49(a)(9)/817.49(a)(9) - IMPOUNDMENTS. 

 OSMRE is reinstating 30 CFR 816.49(a)(9)/817.49(a)(9), as promulgated on September 26, 1983 (48 FR 43994), to 

allow the retention of underwater highwalls in permanent impoundments. Reinstated paragraphs (a)(9) provide: "The 

vertical portion of any remaining highwall shall be located far enough below the low-water line along the full extent of 

the highwall to provide adequate safety and access for the proposed water users." 

 The district court in In Re: Permanent II, in remanding Sections 816.49(a)(9)/817.49(a)(9) was "wary of permitting 

highwalls to remain in impoundments under an 'implied' exception to [the approximate original contour (AOC) 

requirement of Section 515(b)(3) of the Act], when Congress did not even permit the retention of highwalls when 

granting express exemptions from AOC." 620 F. Supp. at 1571. The court of appeals in NWF v. Hodel reversed the 

district court and reinstated the rules. Slip op. at 134-138. 

 In upholding Sections 816.49(a)(9)/817.49(a)(9), the court of appeals ruled: "The Act * * * on its face, does not 

support the district court's interpretation. Unlike the other two AOC variances, the water impoundment grading 

requirements do not include a highwall elimination requirement. Instead, an operator wishing to create a permanent water 

impoundment must show, among other things, that 'final grading will provide safety and access for proposed water users.' 

SMCRA 515(b)(8)(E). 

 "* * * Congress in this case has not stated that highwalls completely submerged in an authorized impoundment must 

be removed. The Secretary in turn has considered policies in favor of the general highwall elimination requirement and 

concluded that they do not necessitate removing those highwalls in every water impoundment case. This is the type of 

judgment we would expect Congress to leave to the agency given the task of implementing and enforcing their complex 
regulatory scheme. The district court should have given greater deference to the Secretary's interpretation of the 

statute." Id. at 137-138 (footnote and citation omitted). 

 

SECTIONS 816.81(c)(2)/817.81(c)(2) - COAL MINE WASTE: GENERAL REQUIREMENTS. 

 

SECTIONS 816.83/817.83 - COAL MINE WASTE: REFUSE PILES. 

 OSMRE is reinstating 30 CFR 816.81(c)(2)/817.81(c)(2), as promulgated on September 26, 1983 (48 FR 44006), to 

allow the construction or modification of coal waste refuse piles with compaction that does not attain ninety percent of 

the maximum dry density determined in accordance with the standard Proctor method, provided they achieve a long-term 

static safety factor of 1.5. Reinstated paragraphs (c)(2) provide: "The disposal facility shall be designed to attain a 

minimum long-term static safety factor of 1.5. The foundation and abutments must be stable under all conditions of 

construction." 

 OSMRE also is reinstating 30 CFR 816.83/817.83, as promulgated on September 26, 1983 (48 FR 44006), to allow 

the construction of coal refuse piles using lifts of greater than two feet thickness, provided they achieve a long-term static 

safety factor of 1.5. The relevant portions of reinstated Sections 816.83/817.83 provide: "Refuse piles shall meet * * * 

the requirements of * * * [Section] 77.215 of [30 CFR]." As explained in the preamble to the final rule: "Construction of 

the refuse pile in compacted lifts of 2-feet maximum thickness is required under Section 77.215 * * *. However, MSHA's 

[the Mine Safety and Health Administration's] District Manager may approve thicker layers * * * when maintenance of a 

1.5 minimum safety factor is supported by engineering data." 48 FR 44015. Under the reinstated rules, layers or lifts 

thicker than two feet may be used in accordance with Section 77.215 when approved by the regulatory authority. 

 The former rules had provided: "The coal processing waste shall be -- (1) Spread in layers no more than 24 inches in 

thickness; and (2) Compacted to attain 90 percent of the maximum dry density to prevent spontaneous combustion and 

to provide the strength required for stability of the coal processing waste bank." 30 CFR 816.85(c) (1) and (2)/817.85(c) 

(1) and (2) (1982) . 

 The district court in In Re: Permanent II had remanded Sections 816.81(c)(2)/817.81(c)(2), ruling: "The former 

regulations contained a specific design criteria relative to compaction; the new regulations have rejected that in favor of a

performance standard. This is in direct contravention of section 515(f) [of the Act] and, even if the Act leaves discretion 

with the Secretary for the selection of which design criteria are necessary, the failure to explain the rejection of the 

previous compaction standard renders the current regulations arbitrary and capricious." 620 F. Supp. at 1536 (footnote 

omitted). For similar reasons the district court remanded Sections 816.83/817.83 to the extent they allowed the 

construction of coal refuse piles using lifts of greater than two feet thickness. Id. The court of appeals in NWF v. Hodel 

reversed the district court and reinstated both of these rules. Slip op. at 73-78. 

 In upholding Sections 816.81(c)(2)/817.81(c)(2) and 816.83/817.83, the court of appeals ruled: "The district court 

remanded revised Sections 816.81 and 816.83 insofar as they fail to provide absolute requirements for lift thickness and 

post-compaction density, or other satisfactory 'how to' rules * * *. In thus remanding, the district court misconstrued the 

Act; as [the appellant] no longer contests, the district judge incorrectly read section 515(f) [of the Act] to mandate design 

standards for the mine waste at issue, i.e., non-impounding coal mine waste refuse piles. We find that the Secretary did 

not contravene section 515(f), and that he adequately explained his departures from the earlier regulations; we therefore 

reverse the district court on this matter." Id. at 75 (citation omitted). 

 On the issue of compaction, the court of appeals continued: "Not only did the Secretary relate how changes in the 

definition of waste rendered the 1979 rule obsolete; he also addressed the critical concerns motivating adoption of the 

ninety percent compaction rule in 1979: stability and incombustibility. Stability, the Secretary observed, has always been, 

and continues to be, assured by the generous 1.5 long-term safety rating. The compaction density standard, he intimated, 

was a superfluous requirement that unnecessarily burdened mine operators * * *. He concluded, we think reasonably, 

that '[t]he specific numerical requirement for compaction [density] is * * * more appropriately determined based upon the 

particular design, site conditions and waste characteristics.' " Id. at 76-77 (footnote and citations omitted, brackets in 

original). 

 On the issue of lift thickness, the court of appeals concluded: "Given the propriety of eliminating the ninety percent 

compaction standard, we need not tarry over the Secretary's allowance for variances from the two-foot lift rule. Mine 
operators must obtain mine regulator approval before constructing a waste disposal site * * *. Lift thickness has 

regulatory significance only as a means of assuring adequate compaction * * *. It can be expected, therefore, that mine 

operators will succeed in obtaining a variance from the two foot lift requirement only when compaction adequate to 

assure stability and incombustibility remain feasible." Id. at 77-78 (footnotes and citation omitted). 

 

III. PROCEDURAL MATTERS 

 

Effect of Reinstatement in Federal Program States and on Indian Lands 

 The reinstated rules apply through cross-referencing in the Federal program States of Georgia, Idaho, Massachusetts, 

Michigan, North Carolina, Oregon, Rhode Island, South Dakota, Tennessee and Washington. The Federal Programs for 

these States appear at 30 CFR Parts 910, 912, 921, 922, 933, 937, 939, 941, 942 and 947, respectively. OSMRE also has 

proposed to implement a Federal program for the State of California. 52 FR 39594 (October 22, 1987). 

 The reinstated rules apply on Indian lands through cross-referencing in the Federal program for Indian lands at 30 

CFR Part 750. 

 

Effect on State Programs 

 Following reinstatement of these rules, OSMRE will evaluate the permanent State regulatory programs approved 

under section 503 of the Act to determine whether any changes in these State programs are necessary. If the Director 

determines that certain State program provisions should be amended to be made no less effective than the reinstated 

rules, the individual States will be notified in accordance with the provisions of 30 CFR 732.17. 

 

Federal Paperwork Reduction Act 

 No new information collection requirements that would require approval by the Office of Management and Budget 

under 44 U.S.C. 3501 et seq. are imposed by the reinstated rules. 

 

Executive Order 12291 

 The Department of the Interior has determined, in accordance with the criteria of Executive Order 12291 (February 

17, 1981), that the reinstated rules are not major and do not require a regulatory impact analysis for the same reasons 

that promulgation of the rules in 1983 was not major. 

 

Regulatory Flexibility Act 

 The Department of the Interior has determined, pursuant to the Regulatory Flexibility Act, 5 U.S.C. 601 et seq., that 

the reinstated rules will not have a significant economic effect on a substantial number of small entities for the same 

reasons that promulgation of the rules in 1983 did not have such an effect. 

 

National Environmental Policy Act 

 The publication of this reinstatement notice is categorically excluded from the NEPA (National Environmental Policy 

Act of 1969, 42 U.S.C. 4321 et seq.) process by the Department of the Interior Departmental Manual, which at 516 DM 

2, Appendix 1.10, excludes "[p]olicies, directives, regulations and guidelines of an administrative, financial, legal, 

technical or procedural nature." None of the exceptions to individual actions within categorical exclusions, listed at 516 

DM 2.3A(3), apply to this notice. A Categorical Exclusion Determination for this notice is on file in the OSMRE 

Administrative Record located at 1100 L Street, NW., Washington, DC. 

 

Author 

 The author of this notice is Albert A. Kashinski, Branch of Regulatory Programs, Division of Surface Mining, Office 

of the Solicitor, U.S. Department of the Interior, 18th and E Streets, NW., Washington, DC 20240; Telephone: 

202-343-5207 (Commercial or FTS). 

LIST OF SUBJECTS 

 

30 CFR Part 701 

 Coal mining, Law enforcement, Surface mining, Underground mining. 

 
30 CFR Part 800 

 Coal mining, Insurance, Reporting and recordkeeping requirements, Surety bonds, Surface mining, Underground 

mining. 

 

30 CFR Part 816 

 Coal mining, Environmental protection, Reporting and recordkeeping requirements, Surface mining. 

 

30 CFR Part 817 

 Coal mining, Environmental protection, Reporting and recordkeeping requirements, Underground mining. 

 Accordingly, 30 CFR Parts 701, 800, 816 and 817 are amended as set forth below: 

Date: June 1, 1988. 

James E. Cason, Deputy Assistant Secretary -- Land and Minerals Management. 

PART 701 -- PERMANENT REGULATORY PROGRAM 

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

 Authority: 30 U.S.C. 1201 et seq., and Pub. L. 100-34. 

SECTION 701.5 [Amended] 

 2. In Section 701.5, the definition of Support facilities is reinstated in full. 

PART 800 -- BOND AND INSURANCE REQUIREMENTS FOR SURFACE COAL MINING AND 

RECLAMATION OPERATIONS UNDER PERMANENT REGULATORY PROGRAMS 

 3. The authority citation for Part 800 is revised to read as follows: 

 Authority: 30 U.S.C. 1201 et seq., Pub. L. 95-87, and Pub. L. 100-34. 

SECTION 800.11(b) [Amended] 

 4. Section 800.11(b) is reinstated in full. 

SECTION 800.13(a)(2) [Amended] 

 5. Section 800.13(a)(2) is reinstated in full. 

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

ACTIVITIES 

 6. The authority citation for Part 816 is revised to read as set forth below, and all other authority citations in Part 816 

are removed. 

 Authority: Pub. L. 95-87, 91 Stat. 445 (30 U.S.C. 1201 et seq.), Section 115, Pub. L. 98-146, 97 Stat. 938 (30 U.S.C. 

1257), and Pub. L. 100-34, unless otherwise noted. 
SECTION 816.49(a)(9) [Amended] 

 7. Section 816.49(a)(9) is reinstated in full. 

SECTION 816.81(c)(2) [Amended] 

 8. Section 816.81(c)(2) is reinstated in full. 

SECTION 816.83 [Amended] 

 9. Section 816.83 is reinstated in full. 

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

ACTIVITIES 

 10. The authority citation for Part 817 is revised to read as follows: 

 Authority: Pub. L. 95-87, 91 Stat. 445 (30 U.S.C. 1201 et seq.), Section 115, Pub. L. 98-146, 97 Stat. 938 (30 U.S.C. 

1257), and Pub. L. 100-34. 

SECTION 817.49(a)(9) [Amended] 

 11. Section 817.49(a)(9) is reinstated in full. 

SECTION 817.81(c)(2) [Amended] 

 12. Section 817.81(c)(2) is reinstated in full. 

SECTION 817.83 [Amended] 

 13. Section 817.83 is reinstated in full. 

[FR Doc. 88-12894 Filed 6-8-88; 8:45 am] 

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